Drone Wars: The Eye in the Sky

Unmanned aircraft systems (UAS), commonly known as drones, are a hot topic, drawing the attention of the Federal Aviation Administration (“FAA”), state and local governments, and even Disney World, which loved its No-Fly-Zone until it wanted to fly its own drones.  Corporations like Amazon view the technology as an innovative customer delivery service, or as an opportunity to increase their profits or market share.  State and federal law enforcement agencies may find that drones offer more efficient policing techniques.  Real estate firms are using drones to more efficiently survey property.  Amateur hobbyists who received drones as holiday gifts have found new sources of recreational entertainment.

However, the addition of thousands of new machines into the air raises significant safety and privacy concerns. Unskilled users may lose control of their drones, crashing them into people or property, causing injury.  Many are also concerned about privacy, either through audiovisual snooping or data collection.   Against the recent proliferation of drones and competing interests, the regulatory and legal landscape is still evolving and far from settled.

In 2012, Congress passed the FAA Modernization and Reform Act of 2012, directing the U.S. Department of Transportation and the FAA to establish regulations for the safe operation of UAS in American skies. In response, on February 15, 2015, the FAA released a proposed rule imposing weight, airspeed and altitude restrictions, a line-of-sight requirement and operator certification. The FAA will likely release the final rule later this year.

Effective December 21, 2015, owners of UAS weighing 0.55 lbs. to 55 lbs. must register their drones with the FAA.  Owners of UAS over 55 lbs. must register using the separate Aircraft Registry process.  Owners who purchased their drones before December 21 must have registered before February 19, 2016, or face potential criminal or civil penalties.

On December 17, 2015, the Federal Aviation Administration, Office of Chief Counsel, issued an administrative guidance “fact sheet” titled “State and Local Regulation of Unmanned Aircraft Systems (UAS).” Federal law may preempt state or local regulations that place UAS restrictions on flight altitude, flight paths, operational bans, or any regulation of the navigable airspace.  The FAA provides an example of an ordinance that may be preempted:  “a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks.”  The FAA also suggests that “mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted.  If the municipality is considering an ordinance related to these areas, the FAA recommends consultation with the agency.

The FAA has noted that “[s]ubstantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft.” If some municipalities restrict the use of UAS, and others do not, the FAA fears that the resulting “patchwork quilt” of restrictions could limit its flexibility to maintain a safe and sound navigable airspace.

However, municipalities still have room to regulate drones – laws traditionally related to state and local police power are not subject to federal regulation. These include laws related to land use, zoning, privacy, trespass and enforcement operations.

The FAA provides examples of permissible municipal regulation including:

• Requirement for police to obtain a warrant prior to using a UAS for surveillance.
• Specifying that UAS may not be used for voyeurism.
• Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
• Prohibitions on attaching firearms or similar weapons to UAS.

Despite the FAA’s preemption warning, state and local governments throughout the country have either passed or are considering legislation restricting the operation of drones.  According to the National Conference of State Legislatures, 45 states considered 168 bills related to drones in 2015.[1]  Cities, such as Los Angeles, Chicago and Pittsburgh have placed operations restrictions that differ from FAA regulations.  So far, it appears no individual has filed suit challenging a municipal drone ordinance.

Municipalities currently considering drone legislation should limit themselves to those ordinances that fall within the traditional local police power as recommended by the FAA. The FAA strongly discourages the creation of conflicting laws related to aircraft operation, regardless of size which are preempted by federal regulations.  This is a rapidly evolving area of the law, as the FAA attempts to balance innovation and economic interests with the safety of people and property.

[1]National Conference of State Legislatures. Jan. 13, 2016. http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx.