Recently, the Cleveland City Council passed legislation aimed at giving local law enforcement the power to enforce federal restrictions on flying drones (also known as unmanned aircraft systems or “UAS”) within city limits. The Cleveland law mirrors federal rules on operating both commercial and recreational UAS, including the restriction on flying within a five-mile radius of an airport.

Many other Ohio cities are also considering similar UAS legislation. Such activity raises the question as to whether the Federal Aviation Administration (FAA) or state and local governments, or both, have the authority to regulate UAS. The FAA maintains it has regulatory authority over matters pertaining to aviation safety, including regulation of UAS. To address this issue, the FAA has issued a Fact Sheet, which provides information about the federal regulatory framework for use by states and localities when considering laws affecting UAS.

In the Fact Sheet, the FAA explains, “[s]ubstantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft.” The FAA expresses its concern over “fractionalized control of the navigable airspace” should municipalities enact their own, separate ordinances regulating UAS in the navigable airspace, creating a “patchwork quilt” of differing restrictions that “could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow.” The FAA maintains that a “navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.”

The FAA maintains that any state or local law that attempts to regulate use of the navigable airspace will be pre-empted by the FAA’s regulatory scheme. This would render such laws unenforceable. Examples of potential encroachment on federal regulations include UAS restrictions on flight altitude, flight paths, and operational bans, such as a city ordinance that bans anyone from operating UAS within the city limits, or within certain distances of landmarks.

However, laws traditionally related to state and local police power generally are not subject to federal regulation and so would not encroach upon the FAA’s regulatory framework. Examples of such police power include requiring police to obtain a warrant prior to using a UAS for surveillance, banning UAS use for voyeurism, and prohibiting UAS with firearms or other weapons attached.

State and local governments that are considering UAS legislation should consult with the FAA to determine whether a proposed law would be enforceable or subject to pre-emption by the FAA’s regulatory framework.