As Congress considers provisions for potential inclusion in a long-term FAA Reauthorization Bill, one piece of legislation in Congress attempts to vastly redefine the relative roles of the federal and state governments. The Drone Federalism Act of 2017 is a bipartisan bill that would give additional authority to state and local governments to regulate UAS operations below 200 feet and potentially lessen the FAA’s control over certain drone operations.
The Drone Federalism Act of 2017, S. 1272, was introduced in May 2017 by four senators—Sens. Feinstein, Lee, Cotton, and Blumenthal—who span the political spectrum from California Democrat to Utah Republican. Members of the House introduced a similar bipartisan bill, the Drone Innovation Act of 2017, H.R. 2930, in June.
These bills are noteworthy because, if enacted, they would alter the role of state and local governments over low altitude drone operations. The Drone Federalism Act includes language allowing state/local governments to “issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure.” The legislation goes on to define “reasonable restrictions” to include: limits on speed; prohibitions on flight near any public or private property; restrictions on operations during certain times of day or week, or special occasions; and other “prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.”
The regulatory authority this legislation would grant to state and local government would represent a significant change from the FAA’s current regulatory interpretations and guidance. In a recent FAA Fact Sheet titled State and Local Regulation of Unmanned Aircraft Systems, the FAA warned of the dangers associated with such local and state UAS laws. The FAA stated that “substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft.” The Fact Sheet goes on to caution about a “patchwork quilt” of restrictions, therefore limiting the FAA in controlling the airspace and flight patterns. The FAA asserts that state and local restrictions cannot be permitted—it is “essential to the maintenance of a safe and sound air transportation system.” While state and local governments are free to prohibit certain uses of UAS, such as voyeurism or harassing of persons and animals, the FAA has pushed back against any regulation of the operations themselves.
On the other hand, local and state governments argue they should be able to have control over operations in their communities and backyards. Over the past years, these governments have been legislating and regulating in this space. Additionally, FAA has a difficult time enforcing its own UAS regulations and relies primarily on local and state law enforcement to police the skies for errant or illegal UAS operations.
The Drone Federalism Act of 2017 reserves FAA the right to preempt state and local UAS regulations to ensure the safety of the NAS for interstate commerce, which we would expect the FAA to construe broadly. Nevertheless, the legislation but clearly represents a significant change in favor of local control in this field. Preemption would become the exception rather than the norm.
So far these bills haven’t made much progress in Congress, but their introduction and their support across the political spectrum suggests that local control of low altitude UAS operations may be gaining momentum.