The FAA has released a fact sheet regarding state and local regulation of unmanned aircraft systems (“UAS”). The FAA advises that state and local restrictions should be consistent with the extensive federal statutory and regulatory framework pertaining to aviation.

In 2015, almost all U.S. states and many local governments passed or considered passing restrictions on UAS, totaling over 150 UAS-related bills. Enacted or proposed state and local regulations have addressed the use of UAS with regard to agricultural operations, harassment, surveillance and warrants, hunting and fishing, and prohibitions over certain facilities or during events. States and local governments should be careful not to encroach on areas under the FAA’s exclusive jurisdiction or they risk facing challenges from the FAA.

By statute, the FAA has exclusive jurisdiction to regulate airspace use, management and efficiency, air traffic control, navigational facilities, and aircraft noise at its source. Congress has mandated that the FAA develop plans and policies for the use of navigable airspace and enact regulations for the use of the airspace necessary to ensure the safe and efficient use of airspace, including prescribing regulations for the flight of aircraft for navigation, identification, protecting persons and property on the ground, and preventing collisions. The FAA finds that a “consistent regulatory system for aircraft” will ensure the highest safety levels for all airspace users, and that the FAA has regulatory authority over aviation safety matters to ensure navigable airspace remains free from inconsistent regulations. This exclusive jurisdiction concept is also known as federal preemption, whereby Congress effectively displaces state or local laws with Federal law either expressly or impliedly, such as creating a Federal regulatory scheme so pervasive as to “occupy the field” in that area of law (field preemption).

Two key areas where FAA preempts state and local laws in the areas of UAS operational requirements and registration. The FAA warns that state and local authorities regulating UAS in navigable airspace would result in “fractionalized control of the navigable airspace” and the “patchwork quilt of differing restrictions could severely limit” the FAA’s flexibility in controlling airspace and flight patterns that ensure safe and efficient air traffic. The FAA stresses that “[a] navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.” However, certain laws are reserved for state and local authorities, particularly within their police powers.

Examples of areas appropriate for federal, state, and local regulation include:

Areas of Federal Authority:

  • Operational Restrictions — rules governing flight altitude, flight paths, operational bans, and any regulation of the navigable airspace.
    • Problematic state/local regulations examples include a city ordinance banning UAS operations within city limits, within city airspace, or within certain distances of landmarks.
  • Equipment and Training – rules governing mandatory training or equipment.
    • Problematic state/local regulations examples – required geo-fencing technology; pilot training.

Areas of State/Local Authority

  • Operational Restrictions — land use, zoning, privacy, trespass, and law enforcement operations, such as:
    • Requiring police obtain a warrant prior to using UAS for surveillance
    • Prohibitions against voyeurism
    • Prohibitions on using UAS for hunting or fishing or harassing hunters/fishers
    • Prohibitions on attaching firearms or similar weapons

To the extent that such rules cross into areas of FAA regulation in the future, we would expect the courts to closely scrutinize whether the rule runs contrary to the FAA’s scheme and could result in the patchwork quilt framework that the FAA asserts must be avoided for safety.