17 September 2019

Who owns the sky?


Who owns the sky?

It’s not such a crazy question. For the last hundred years or so – as long as aircraft have been an important part of economies – governments have claimed ownership of the airspace above our heads. Individuals or corporations may own land and use it as they see fit, but the sky belongs to the state. You may travel the airways but you do so at the government’s pleasure, on terms the government decides, and at a price the government sets.

That has been the way of things ever since aviation began. But it may not be the way of the future. Coming changes in demand and new technologies that already exist are picking away at the old order.

Like most things, regulation of airspace goes back further than you might think. Roman law established the first principle – cujus est solum ejus est usque ad coelum – whoever owns soil also owns the airspace above it. That principle held good until the eighteenth century when passenger balloons appeared in the sky and immediately trespassed on this property right. Governments responded with the simple expedient of stripping landowners of their rights to the sky.

It was not until the 1920s that aviation law became fully codified and internationalised, but the direction of travel was already clear. If airspace rights interfered with commerce or national security, they would be transferred to the state. If you didn’t like it, well tough.

Did governments do a good job of managing this new form of real estate? By the 1970s a consensus was emerging that the answer was ‘no’. The US led the way on change with the 1978 Airline Deregulation Act which broke up federal regulation of routes, fares and airline licensing. This was a commercial innovation, designed to break cartels and promote competition. But it was focussed on airlines, and did nothing to undermine the day to day management of airspace through state-controlled air traffic control providers.

It remains the case that while carriers are free to set their own fares, governments have continued to monitor and control air traffic and charge whatever they choose for the service. Most air traffic control managers are either government or quasi-government organisations (as in the UK, where the air traffic manager NATS is a public-private partnership with a government controlling share).

Air traffic control is where change should come next. Demand for airspace access is growing. When that demand is coupled with fast-moving developments in machine intelligence and autonomous aircraft, the result will be to push governments to cede at least some of the total control over airspace management that they have enjoyed. Potentially this is the biggest change in aviation since the invention of the jet engine. But if this revolution is to take place, policy will have to change.

Consider the patterns in airspace use. The last time that demand grew rapidly was in the two decades before the financial crash. From 1985 to 2005 the number of commercial flights doubled worldwide, stretching air traffic control capacity to the limit. Then there was a needed pause, as demand stagnated for the next decade. But since 2015 the commercial aviation industry has kicked back into growth – and it is the kind of growth that current approaches to air traffic management are unlikely to be able to handle.

The body that speaks for the passenger airline industry, IATA, has forecast that global passenger numbers will double over the next 20 years, mainly due to demand growth in East Asia. But passenger numbers are only one measure, and not the most informative. Another set of forecasts from EUROCONTROL which cover the 44 member states of the European Civil Aviation Conference estimate that by 2040 the number of flights in Europe will grow by at least 50%, and perhaps as much as 80%.

Those numbers represent a critical workload increase for an industry that is already under heavy pressure to cut the costs of managing traffic (costs that are passed directly to airlines and then on to consumers). But there is more where that came from.

These forecasts only cover conventional aircraft – the kind with human pilots and usually human cargo. The biggest increase in demand will come from an entirely new direction: unmanned aerial vehicles or drones, some of them under remote human control but many of them autonomous vehicles like delivery drones, pilotless taxis and infrastructure management and inspection craft, often powered by electricity. A recent forecast from the EU’s Single European Sky Air Traffic Management Research project (SESAR) says that in terms of hours flown these flights could outnumber conventional flights by a factor of ten by 2050.

This would amount to a new aviation industry, one that could shift mobility demand away from roads and rail and cut environmental impact dramatically. But these forecasts can only be realised if something equally dramatic happens to the way governments run air traffic management.

“When you think of a modern aircraft you are looking at something that is in perhaps its ninth generation of technology change,” says Andrew Charlton of the ATM Policy Institute, an aviation industry think-tank. “But then you look at air traffic control, and they are still somewhere between the second and third generation. Controllers are still looking at radar screens and communicating by radio. And none of that is necessary.”

If the question is how does national air traffic control cope with a massive increase in digital-era aircraft and flights, the answer is automation. Whether the air traffic management industry can embrace that automation fully enough and fast enough is another matter. The industry is cautious, conservative, and with good reason sceptical of anything that could undermine the culture of personal accountability.

Moving to a future where decisions are made by machines, where aircraft manage their own flight-paths, where humans manage the health of the system rather than the flow of traffic, would seem to challenge that culture. Opening airspace management up to new sorts of providers, like data companies and remote management service companies, would seem to challenge it further. If growing demand is to be satisfied, something has to give.

If aviation is to deliver the promise of technology there will almost certainly have to be a pro-digital policy change. Yet for policymakers aviation is not a priority. The days when aviation was seen as a glamorous future-oriented industry that should be enabled are long gone. Airlines have made themselves unpopular, airports are increasingly unpleasant, skies are already seen as congested. Building a new aviation industry is not something that commands a ready constituency.

And unless that changes the revolution is likely to be cancelled.

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Richard Walker is a journalist and communications adviser to financial companies.