An Open Letter to State and Local Policy Makers Considering Drone Laws

Are you a state or local politician considering drones laws this session? If so, this article is written for you. It is full of useful information that can be used to craft language that won’t be usurped by Federal Preemption, and/or cause your town or state to end up in a Federal Court battle over jurisdiction.

Have you received emails or phone calls (or even letters, assuming anyone still writes those) from worried constituents who fear drones? Do you fear drones? Are you wondering what you can do to help keep drones out of the air and appease those who take the time to contact you? Well, the basic answer is, “Nothing”. However, you need to be able to explain why you can’t do anything in order to keep your constituents happy. And actually there’s a bit more to it than a simple “Nothing”. Which is why I said “basic answer”.

While this article will concentrate on why you can’t control drones (for the most part), it will also include some things you can do.

Let’s start off with why state and local governments aren’t allowed to control drones. This article may start out dry but stick with it. It will get better. And rather than go into the minutiae of every court ruling, consider this a guide to help your staff do a little research first.

It all started with the Air Commerce Act of 1926. The U.S. Congress passed this act in order to facilitate the establishment of federal regulations regarding aircraft, airmen, navigational facilities and the establishment of air traffic regulations. This gave what eventually became the FAA sole responsibility over all things aeronautical. This grew out of the advent and continued rise the use of airmail services. There were a couple more iterations of subsequent government acts and procedures that changed names and defined additional responsibilities for control of the National Airspace System (NAS), but all of that lead us to where we are today. Today it is the sole legal responsibility of the Federal Aviation Administration (FAA) to control the NAS. All aircraft and airspace are 100% under the control of the FAA. Therefore, if a political subdivision wants to control any part of the NAS, which is basically from the ground up, they must do so in coordination with the FAA. Anything else is prohibited by federal preemption, and will quite possibly lead to extra work for your Attorney General, or City Attorney.

The FAA’s airspace authority is enforceable due to the Supremacy Clause of Article VI in the Constitution of the United States of America. The clause states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Basically, as I’m sure you understand, that means Federal Preemption will come into play for any local or state law passed that is in direct conflict corresponding Federal Law.

If you’re tempted to say that UAS (drones) are not aircraft, I point you in the direction of Huerta v. Pirker (2014). In that case, the NTSB found that the FAA can legally consider drones aircraft in order to regulate when, where, and how drones can be integrated safely into the NAS. Key word there is “safely”, more on that later.

While it is a noble cause to draft legislation and ordinances to help “protect” people from our drones, it’s basically a solution in search of a problem. Despite news stories to the contrary, there is not a civilian drone problem in the U.S. Or anywhere else in the world for that matter.

There has yet to be a single confirmed instance of a civilian drone causing damage to an aircraft. And in virtually every instance of interference with aircraft, either the incident was not verifiable, or it was proven or thought to be something else. There have been a few examples of drones interfering with first responders, and some police helicopters, but they are very few and far between. And even many of those incidents are unproven. And due to those responsible for the firefighting interferences that were proven, the FAA now institutes a No Fly Zone (NFZ) that forbids aircraft passage into active fire areas. The NFZ gives the FAA teeth to prosecute those who violate it, and they even provide LEOs guidelines when they encounter suspected illegal UAS use. You can find those guidelines by clicking here.

“Drone” is the new “UFO”. As the increase in drone sightings reported by pilots has increased, the instance of UFO sightings has a correlating decrease. What were all those sightings 5 or 10 years ago?

Okay, so back to drone regulation:

Many states and cities have recently come to the decision that the FAA isn’t moving fast enough to come up with rules for drone use. And many in the drone community would agree (but probably for different reasons). As such, those politicians have taken it upon themselves to solve that problem. So as you can see, you are not alone. This became such a problem recently that the FAA published the State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet. In it, the FAA lays out what political subdivisions may and may not do. You can find that fact sheet by clicking here.

As you read through that fact sheet, you can understand why the FAA can’t allow different regulations in every state, county, and city in the nation. They state it perfectly by saying if, “…one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result”. That would create a multitude of safety issues for both manned and unmanned aricraft.

Now consider what position that would put a drone operator in. In many situations, it is quite possible for us to be flying over two different cities, or going from flying over the city to flying over the county, all during the same flight. If that were to happen, whose rules would we follow? And better yet, how would we find out what the rules are? And for those of us who travel for clients, or take our drones on vacation, we run a very good chance of getting in trouble just because the NAS regulations would be so fractured. It would also impose an undue burden for any of us with drones who fly in different areas. We would have to sit down and do research for each and every city, county, and state we’ll be flying remotely close to. That makes it even more difficult (and maybe even impossible) to make sure we’re following all the laws.

Interspersed throughout that memo are some great references so you can assign research to your staff. In them, the FAA further solidifies their NAS supremacy.

Towards the top of page three of that memo, the FAA uses examples of laws were FAA consultation is “recommended”. And as I’m sure you understand, when a government agency is over another government agency, the use of the word “recommended” is generally a nice way to say “required”. It’s especially true when it’s a Federal Agency doing the “recommending”.

Under the examples of what cities cannot do is one that virtually all city and state ordinances attempt. That example is when they try and regulate flights within city limits and/or within a certain distance to landmarks and infrastructure. And you want to pay close attention to one of the court cases referenced in that paragraph. If you notice, one of those cases is American Airlines v. Town of Hempstead (1968). And under the headings of both irony and “those who don’t learn from history are doomed to repeat it”, the Town of Hempstead (NY) passed an ordinance counter to the above mentioned memo this last December, and against the advice of many drone industry experts. And now a resident of their town is currently suing the Town of Hempstead over it in Massachusetts District Court. And based on the facts of the case, Dr. Singer has a very good chance of winning his case against the town.

So banning flights over areas, or from private property, or even near people and/or events, is outside the jurisdiction of any local or state governing body. If you still feel the need to investigate how to regulate the NAS at your level, consider contacting your local FAA Regional Counsel office and run it by them. You can find their contact information at the bottom of that same memo.

So what can a city, county, or state do to help stem the tide of drone paranoia? Well, probably nothing. Because that paranoia is based on ignorance. Not ignorance in the pejorative sense, but in the lack of facts sense. Although you probably can’t remove the paranoia, you can do some things to appease those constituents who fear the unknown. And those items are also conveniently listed in that same memo.

The FAA says it’s fine to limit LEO use of drones (although you should think long and hard about how to word that. Drone use by LEOs and First Responders is already accounting for lives saved), add drones to existing voyeurism and privacy laws (if you remember that the NAS is a public thoroughfare), use of drones to assist in hunting or fishing, and attaching a firearm to a drone (which is an incredibly stupid thing to do, and it’s sad we would even have to mention that these days). Additionally, you are also well within your authority to limit when, where, and how someone may use a drone while standing on property under your control (parks, gov’t buildings and grounds, etc.). But this is only while they’re on that property. You still cannot limit flights over that property, or near those buildings, from people standing outside that property.

Many policy makers are also under the false assumption that the FAA is only authorized to control the airspace over 500’ because that is the definition of navigable airspace. Let me assure you that is not true at all. While much of the FAA’s concerns are rightfully concentrated on navigable airspace, their authority doesn’t end there. Helicopters are allowed to fly below 500’. Crop dusters spend the vast majority of their working life under 500’.

The best example of the absurdity of that line of reasoning is summed up like this: if that were true, it would be easy to get around all FAA authority by simply having your own private airstrip, and owning a homebuilt short take off plane (i.e. Javelin V6 STOL). A Javelin can take off with as little as 300’ of runway. If I have one of those, and only fly it under 500’, the FAA can’t touch me. I just won’t register the plane, or get a pilot license. Try that logic on your local FAA rep, and see how well it “flies”. And remember, drones are aircraft, and if you think about it, the ultimate in STOL (or VTOL) aircraft. So as you see, the FAA most definitely has authority under 500’. So that argument is invalid.

It is in the best interest of your state or town for you to educate not only yourselves about who has authority over the NAS, but your constituency as well. Not only will it save time and resources of your municipality, you won’t have to sit in front of an angry group of constituents asking why their taxes went up in order to pay for a federal lawsuit.

Reach out to your local drone group if you have questions. Odds are if you publicly announce your plans to craft drone legislation, they’re going to find you anyway. So you and your staff won’t even need to do any research on who to call.

Vic Moss owns Moss Photography, an architectural photography firm since 1988. He incorporated drones into his client offerings three years ago. He is also a national voice for reasonable drone regulations, and the Aerial Photography Instructor at The DroneU.

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