FAA jurisdiction to regulate UAS operations below minimum altitudes and outside of navigable airspace

With the proliferation of unmanned aircraft systems in the marketplace and demand for their services, commercial unmanned aircraft systems developers and operators, both large and small have begun to engage in commercial operation of unmanned aircraft at low altitudes, while there has been little assertion that unmanned operations are not subject to jurisdiction of the Federal Aviation Administration within air space above certain minimum altitudes prescribed for flight. Many developers and operators have done so without any authorization or licensing on the assumption that no authorization is required because the Federal Aviation Administration lacks the jurisdiction to regulate operations of unmanned aircraft at low altitudes. While a recent decision by the National Transportation Safety Board dismissed an enforcement complaint against an operator of a small unmanned aircraft at low altitudes, it is unlikely that the Board or a Federal court will find that the agency lacks jurisdiction over operations at low altitudes. Other unmanned aircraft operators have sought authorization through the very limited and commercially restrictive approval mechanisms currently developed for testing and integrating unmanned aircraft into the national air space. Noncommercial recreational use of model aircraft have been covered by a separate Federal Aviation Administration policy and are not the focus of this article.