Thursday, December 2, 2021

Anti-drone law is illegal – How did that happen?

Not the first and wont be the last.

It was a beautiful morning! Coffee in hand, checking emails, and BOOM! A major bomb for anti-drone legislation.

Orlando, Florida. ORDINANCE NO. 2016-87.

This piece of local ordinance was approved and effective immediately. Full text here: NO. 2016-87

Summary, it allows the municipality to regulate and enforce non-commercial and commercial UAS operations in the air space above its borders imposing permit fees with possible seizure of equipment and arrest and for non-compliance. It defines air space to be restricted as well as imposing minimum offset distances for flight patterns.

I believe that the ordinances passed by municipalities are illegal and should be struck down based on article VI of the Constitution. I am NOT a lawyer but, I did stay at a Holiday Inn once. Here are the facts.

The one and only required issue is the air space jurisdiction above the municipality.

The Congressional FAA charter 49 U.S.C. § 40103(b)(1) states that the FAA has jurisdiction over “navigable airspace” but, it does not define exactly what that means for height above ground level and has created a gap from the surface to 500’. In a fantastic article written by Mark J. Connot & Jason J. Zummo last year, they go into a specific precedent set by a lawsuit and private air space incursions. You can read it here: Article . The anti-drone legislation proposed and passed, in some cases, have been using this case as the tent pole to acquire the rights to control the airspace that is deemed outside of FAA jurisdiction due to manned aircraft not utilizing it. As stated in 14 C.F.R. § 1.1“airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.” This is where the municipalities have overstepped. The FAA has claimed ownership of commercial UAS operations across the United States per Part 107 (summary). Air frames must be registered before they can be flown. Pilots must be tested and certified before flying commercial UAS. Infractions against either can bring financial and legal action by the FAA. The “navigable airspace” that was deemed not utilized by the manned air craft due to 14 C.F.R 1.1 has in fact been adopted by the FAA when they assumed control over UAS operations and licensees. UAS can only operate from surface to 400’ AGL in most cases. Thus, the FAA has “reacquired” the use of this airspace and it shall be only controlled by the FAA. Regardless if the air frame is manned or unmanned. Those facts, when tested against the municipal code, create a supremacy clause issue and as part of article VI of the Constitution, define the local ordinance as unconstitutional.

We are living in an ever changing time. The dynamics of technology and the ability to use new tools has created many issues for those working with them as well as those on the outside. Self-driving cars, drones, A.I all flip the long held paradigm on its head. Lawmakers and politicians are racing to create a buffer for their constituents using the veil of safety and order. Like to ordinance above, it is actually restricting our constitutional rights as well as creating a revenue generator against those who are trying to start business. Am I for drone safety? Absolutely! I am for all parties industry and by standers. I am against the infringement of our rights. If we as citizens allow the infringement of our rights it can cause a domino effect into many other industries.

Please take this article and research all the topics and concerns for yourself. Educate yourself on what the facts of the issues are and make your own opinions. IF a real lawyer sees any merit to this statement, please let me know and run with it!

This article is written with my personal opinion and does not reflect the opinions of any companies that I work for or with.

Kevin Pomaski, sUAS

Kevin Pomaski
FAA Remote Pilot in Charge certificate sUAS Part 107 Currently working with asymmetrical data sets to produce actionable intelligence for several industries leveraging Remotely Piloted Aircraft. The aggregation of multiple data sources, leveraging several software platforms is the normal operational environment for almost every engagement. Introducing mixed reality to multiple industries.