United States: FAA Reauthorization Bill Attempts National Drone Policy

Last Updated: April 20 2016
Article by Mark J. Connot and Jason J. Zummo

Poised to be one of the fastest growing industries, drone (i.e., unmanned aerial systems or UAS) technology has the potential to revolutionize commercial activity and the public's perspective of robotics and all manner of autonomous systems. As commercial uses of drone technology continue to evolve, its popularity continues to skyrocket. This technological advancement is on par with the evolution of the Internet in the early 1990s and smartphones over the last decade. However, numerous state and local laws regulating drones conflict with both the Federal Aviation Administration's contention that it controls the national airspace and the FAA's express desire to establish a single national policy for drones, thus creating a murky legal and regulatory framework.

In 2012, Congress passed the FAA Modernization and Reform Act requiring the FAA to integrate drones into the national airspace. Primarily portrayed by the media as having military applications, public concerns about domestic drone use have increased. As a result, many states have enacted laws directly targeting drone operations.

Specifically, several states have enacted laws that regulate or prohibit the flight, weaponization and surveillance use of drones. In 2015, legislatures in 45 states considered 168 bills affecting drone operations. Of those bills, 20 states enacted 26 pieces of legislation regulating drone use. However, many of those laws may encroach on the sovereignty of the federal government. Whether federal law and regulation regarding drone operations will preempt state and local laws is an emerging issue.

The concept that federal law preempts state law is rooted in Article VI, clause 2 of the U.S. Constitution. When a court determines that federal law preempts state law, the state law is void. Congressional intent to preempt state law consists of two types: express and implied preemption.

Express preemption occurs when Congress explicitly states that federal law preempts state law or regulation. Within the aviation arena, only two instances of express preemption exist. First, Congress has expressly asserted "exclusive sovereignty of airspace of the United States," and has placed "exclusive authority for regulating the airspace above the United States with the [FAA]."1 Second, under the Airline Deregulation Act of 1978, Congress prohibited states from enacting laws "related to a price, route, or service of an air carrier that may provide air transportation."2

Despite these instances of express preemption, the U.S. Supreme Court has held that there is no general express preemption in the field of aviation.3 Instead, courts may infer intent either through a conflict between a federal law and a state law or by finding that Congress has occupied the "field."4

Under implied field preemption, intent to preempt a state law is typically determined on a case-by-case basis when the federal laws and regulations are "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."5 Although the breadth of laws and regulations in the aviation field are extensive, courts have consistently held that there is room for states to enact laws within aviation subfields. However, any attempt by states to regulate certain subfields within aviation, including airspace, noise control and safety, will be deemed preempted. Furthermore, the FAA considers any operational drone restrictions on flight altitude, flight paths, or navigable airspace by states to be an encroachment on its authority.

On the other hand, if the state law regulates a traditional state power generally not subject to or addressed by federal regulation, including land use, zoning, privacy or trespass, then the state law may survive.6

In an effort to clarify the responsibilities of federal, state and local governments with respect to the regulation of drones, the Federal Aviation Administration Reauthorization Act of 2016 ("FRA"), which was recently introduced in the U.S. Senate, specifically addresses federal preemption in the area of drone operations.

Section 2142(a) of the FRA would establish federal preemption for state and local laws relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of a drone, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

Under Section 2142(b), however, state or local laws (including common law causes of action) relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of drones would not be preempted if they are not specifically related to the use of a drone.

The FRA is a bold and important proposal because only two other instances of express preemption exist regarding aviation. The FRA is Congress' attempt to establish a single national policy for drones by explicitly granting the FAA supremacy over all laws seeking to specifically regulate drone operations.

Granting the FAA this type of supremacy is not without its critics. The contrary view contends that Section 2142(a) "would also block local governments from adopting measures prohibiting encroachment on private property."7 Whether it is better to have a single federal law or a variety of state and local laws is open to debate.

The FAA contends that attempts by state and local governments to regulate the operation or flight of aircraft raises substantial air safety issues.8 If a significant number of municipalities enact laws regulating drone operations, fractionalized control of the navigable airspace could result.9 The FAA argues that this patchwork of differing restrictions could severely limit its flexibility in controlling airspace and flight patterns, and ensuring safety and an efficient air traffic flow.10 From the FAA's perspective, a navigable airspace free from inconsistent state and local restrictions is necessary to the maintenance of a safe air transportation system.11

Brian Wynne, president and CEO of the Association for Unmanned Vehicle Systems International, echoes the FAA's concern. Wynne argues that state and local laws regulating drone operations "may conflict with federal jurisdiction resulting in a complicated patchwork of laws and ordinances."12 This, according to Wynne, would not only cause "confusion about where commercial UAS operators could fly," but "may erode, rather than enhance, safety."13

Proponents also argue that the patchwork of laws whereby federal, state and local governments all seek to regulate drone operations inhibits the growth of the drone industry. Furthermore, many contend that it is simply unnecessary for state or local governments to enact drone specific legislation because existing state or local laws already cover the areas delineated in Section 2142(b) of the FRA.

Opponents argue that a patchwork of laws is not necessarily a bad thing. Jay Stanley, senior policy analyst for the American Civil Liberties Union, compared drone policies to "other quality-of-life issues about noise and safety and privacy, dealt with through local legislation" such as "for leaf-blowers or handguns."14 More critical is Troy Rule, a professor of law at Arizona State University, who believes the FRA is "one of the largest property-rights grabs by Congress in history."15

While certain laws enacted by various states are susceptible to preemption, until challenged and litigated in court (or repealed by the legislature), there will continue to be legal ambiguity. With the FAA planning to issue final regulations for commercial drone use as early as June 2016, it is clear that the breadth and pervasiveness of these forthcoming regulations will greatly influence the degree and scope of preemption.

While the FRA attempts to remedy the lack of regulatory guidance at the federal level, states are also contemplating how to address the confusing regulatory environment. For example, Arizona Senate Bill 1449 would, among other things, prohibit local governments from enacting drone regulations — in essence state preemption of local attempts to regulate drone operations. The Arizona bill aims to "strike a balance between safety and privacy concerns and commercial and enthusiast interests" by taking "into account the concern of business to have a uniform, reasonable policy, and the concerns of cities and towns to protect against voyeurism."16

Section 13-3729(d) of the Arizona Bill addresses the concern that "individual towns and cities will pass separate laws creating a mish-mosh of ... drone ordinances."17 In particular, it would prevent local governments from enacting more restrictive drone regulations.18

The surge in drone technology has tremendous economic development potential for states that have a favorable regulatory environment for this burgeoning new industry. State lawmakers must exercise caution to avoid enacting reactionary, burdensome, and restrictive laws specifically directed toward drone operations. Those laws have the potential to alienate the drone industry and impede economic development.

Instead, state lawmakers should strike a balance that allows the use of drones for commercial and recreational use while addressing citizen concerns. Those concerns should be addressed through a cautious and thoughtful approach before enacting laws that affect drone operations, as courts will examine the text of the statutes involved, as well as the purposes and concerns addressed by the statute.


1 49 U.S.C. §40103(a); see also Riggs v. Burson, 941 S.W.2d 44, 49 (Tenn. 1997).

2 49 U.S.C. § 41713(b); see also Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 232 (1995).

3 Braniff Airways, Inc. v. Neb. State Bd. Of Equalization & Assessment, 347 U.S. 590, 760 (1954); see also Nw. Airlines v. Minnesota, 322 U.S. 292, 303 (1944).

4 Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999).

5 City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 632-33 (1973) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

6 For example, state laws which prohibit the use of drones for voyeurism or address trespass by drones.

7 Bart Jansen, State drone laws could clash with federal drone policy, USA Today available at http://www.usatoday.com/story/news/2016/03/13/state-drone-laws-could-clash-federal-drone-policy/81604344/ (last visited April 13, 2016).

8 State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Federal Aviation Administration Office of the Chief Counsel December 17, 2015) available at https://www.faa.gov/uas/regulations_policies/media/UAS_Fact_Sheet_Final.pdf.

9 Id.

10 Id.

11 Id.

12 AUVSI Statement on FAA's Fact Sheet on State and Local Regulations of UAS, AUVSI (Dec. 17, 2015), available at http://www.auvsi.org/browse/blogs/blogviewer?BlogKey=a9331175-36ce-4899-b5b0-b46b8e579128.

13 Jansen, supra note 7.

14 Id.

15 Id.

16 Buzz off: Arizona Legislature mulling bill to control drone use, KTAR News (February 16, 2016), available at http://ktar.com/story/911604/buzz-off-arizona-legislature-mulling-bill-to-control-drone-use/.

17 Id.

18 S.B. 1449, 52nd Leg., 2nd Reg. Sess. (Ariz. 2016) ("Except as authorized by law, a political subdivision...may not...adopt any ordinance, policy or rule that relates to the ownership or operation of [a drone] or otherwise engage in the regulation of the ownership or operation of [a drone] if the ordinance, policy or rule is more prohibitive than or has a penalty that is greater than any state law penalty, whether...adopted before or after the effective date of this section.").

Originally published by Law360.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Mark J. Connot
Jason J. Zummo
Similar Articles
Relevancy Powered by MondaqAI
Fox Rothschild LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Fox Rothschild LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions