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.

Footnotes

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.

Authors
Mark J. Connot
Jason J. Zummo
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.