While the FAA has been working on its small drone regulations, States and local authorities have been passing legislation purporting to regulate the operations of drones. In Greek mythology King Odysseus of Ithaca spends twenty years abroad, the first ten years conducting the Trojan War and the second ten years returning home – engaging in a variety of dalliances along the way, even passing through Hades. Upon his return, Odysseus is surprised to find how things had changed in his twenty year absence and learns of those who had been defying his authority. In one reading of the myth Odysseus exacts horrible revenge. The FAA’s December 17, 2015 Fact Sheet entitled “State and Local Regulation of Unmanned Aircraft Systems (UAS)” may not be committing the murderous rampage of Odysseus, but it bears some resemblance because in it the FAA asserts its sole authority in most matters to regulate the national airspace rather than local and state authorities. The guiding principle here is federal preemption.
The Fact Sheet provides two types of state or local laws regulating UAVs for which “consultation with the FAA is recommended”: (1) operational restrictions on “flight altitude, flight paths; operational bans; any regulation of the navigable airspace;” and (2) mandating equipment or training for UAS related to aviation safety, which would likely be preempted. The Fact Sheet contains citations to federal case law indicating that the FAA is the boss, not state or local governments:
Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example –a city ordinance banning anyone from operating UAS within the city limits, within the air space of the city , or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). (Emphasis added).
States and local authorities who have attempted to pass legislation that fall into the first category have widely been criticized. In September 2015, California Governor Jerry Brown vetoed SB 142, which would have banned UAV flights below 350 feet AGL over private property due to concerns over burdensome litigation and new causes of action.
Chicago Mayor Rahm Emmanuel, unfortunately, has not taken similar steps regarding the recently-passed Chicago Drone Ordinance. Without the Mayor’s veto (unlikely at this point, especially given the political pressures he and the city are currently facing), the Ordinance will ban all hobby or recreational operations within the city unless the property owner has given permission for the flight. In addition, flights over school yards – and all flights flown by first person view (FPV) goggles are banned– even with tiny drones that fit in the palm of your hand. Such laws have been widely criticized because of the real potential to stifle the nascent drone industry and may be particularly punitive, especially for operators from out of state who may have difficulty navigating these varying state and local laws.
Having a federal authority, rather than a mishmash of state and local jurisdictions, issue standard requirements makes sense. The importance of having a single agency oversee the national airspace cannot be understated. In his excellent legal history of aviation, Who Owns the Sky author Stuart Banner traces the debates which took place a hundred years ago in the first Golden Age of Aviation regarding authority to legislate airspace. Prior to the creation of a new federal aviation agency, questions were raised as to pilots’ having to know the various states’ laws as they crossed state boundaries. Serious suggestions were made to institute having high-flying balloons alerting airplane pilots of the state line boundaries. How else to know where each state’s jurisdiction ended and another state’s began? Each state’s regulation of flight differed from the next.
In the Fact Sheet, the FAA states:
“Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. 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. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.” (Page 2, emphasis added)
States and local municipalities may be well-meaning, attempting to pass legislation to quell reasonable (and sometimes unreasonable) citizens’ concerns and to protect the public against unsafe operators. The FAA acknowledges that states and local authorities may pass laws “traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations.” But having a standardized, federal set of rules to follow is a very important and achievable goal. Even though the FAA has yet to make any real progress into filling the void, its recent Fact Sheet is a reminder to state and local legislative bodies that they should not attempt to do so.