November 23, 2017
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FAA to states, cities: Back away from the drone (regulations)

By Christopher Burns, BDN Staff
George Danby | BDN | BDN
George Danby | BDN | BDN

In 2015, elected officials in Maine and across the U.S. passed a slew of ordinances and laws attempting to restrict who can fly drones and when, where and how. But with the new year at hand, the Federal Aviation Administration wants legislatures and city councils to get out of the drone-regulating business.

While states and cities pass these regulations to protect their residents’ privacy and safety, the FAA said in a memo released before Christmas this will lead to a “patchwork quilt” of regulations that will “severely limit the flexibility of the FAA in controlling the airspace … and ensuring safety and an efficient air traffic flow.”

Already, drones have created their share of unsafe conditions overhead, with 780 incidents of drones flying too close to commercial aircraft between January 2015 and August 2015, three times as many as reported in all of 2014. That includes one incident last March at the Portland International Jetport. Consumers purchased an estimated 700,000 drones in 2015, according to the Consumer Technology Association, so close calls with aircraft and people on the ground could become more common in 2016.

“It does seem like they are trying to get control [of the airspace] at a time when they need to get control,” said Michael Bosse, an attorney at the Portland law firm Bernstein Shur.

But with no federal drone regulations yet on the books, state and local policymakers often face more immediate pressure to address nuisance drones.

Federal pre-emption

The FAA states in its memo that it has complete authority “to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities and aircraft noise.” As a result, and despite the absence of federal regulations, the FAA is asserting that its rules — once they’re released and effective — will pre-empt city and state drone regulations.

The FAA missed a congressionally mandated deadline in September to integrate drones into the airspace. But the agency has taken steps to make its drone-regulating authority known.

In February 2015, the FAA released draft regulations for the flight of small drones that would bar operators from flying drones higher than 500 feet, beyond their line of sight or at night. In early 2015, the FAA began to expedite limited commercial drone flights. And in December, it began requiring hobbyists to register their drones with the federal government.

The FAA is asserting that its regulations will pre-empt local laws because “it’s well-known that the federal government regulates aircraft,” Bosse said.

But some legal analysts suggest that because drones often operate in non-navigable airspace — airspace below 1,000 feet, the minimum safe altitude for manned flight — the FAA’s authority over navigable airspace may not allow it to pre-empt state and local drone regulations within non-navigable airspace.

Not in my airspace

State and local governments began passing laws and ordinances to restrict drones in 2013, filling what they saw as a regulatory void left in the absence of federal regulations.

Not only that, when state or city residents encounter a reckless drone operator or have other drone-related concerns, they are more likely to go to their local city council, state representative or police department, not the FAA, to demand action.

Local governments are left wondering “what they should do and what can they do” about drones, said Eric Conrad, spokesman for the Maine Municipal Association, which has received a number of calls in the last year calls from members with questions about the use of drones and how local governments can respond to nuisance drones. Among the top concerns is keeping drones from observing people and taking pictures in violation of their privacy.

No Maine city has yet passed an ordinance restricting where, when and how people fly drones, although several elsewhere in the U.S. have erected barriers, legally speaking, to fend off errant drones.

St. Bonifacius, Minnesota, passed the first municipal ordinance banning drones within the city limits out of concern that the aircraft would be used to violate residents’ privacy. Its ordinance banned drone flights in the airspace within 400 feet above the city, with exceptions made for law enforcement and residents flying drones over their property.

Other cities, including Pittsburgh and Chicago, have acted to ban drone flights over schools and playgrounds, near airports and elsewhere within the city limits, so long as the drones are flying no higher than 400 feet. The area above 400 feet is considered the exclusive regulatory territory of the federal government.

According to the National Council of State Legislatures, 45 states considered 168 drone use-related bills in 2015. To date, 26 states have related laws on the books.

The Maine Legislature considered two bills in 2015 that would restrict the use of drones. One bill that requires police to obtain a search warrant before using a drone as part of a criminal investigation became law in October. A second bill that would have barred drones from flying over private property without permission died in committee.

Legislators worried that, by passing the bill, they would be overstepping the state’s authority by regulating the airspace. They also worried that the bill could open the state up to a challenge by federal regulators.

No local drone regulations so far have been struck down on the grounds of federal pre-emption, and the fate of existing regulations (and even future regulations) is uncertain.

Attempts to reach FAA legal representatives to learn what action could be taken against these regulations were unsuccessful.

Evolving area of law

Cities and states with local drone regulations may not receive answers about the fate of their rules until the FAA releases its omnibus drone regulations sometime in 2016, well after its initial September 2015 deadline.

Without a federal regulatory framework, it’s impossible to pinpoint when and where state and local regulations will conflict with those of the federal government.

Bosse said there could be “a sliding scale” to determine what restrictions cities and states can impose on drone use. The FAA in its memo appears to leave room to maneuver, recommending that states and cities consult with the FAA about restrictions on drone flights before putting them into force. States and cities can, without consulting the FAA, require police to obtain search warrants before using drones and prohibit drones from being used for hunting and fishing.

Drones are pushing the FAA into new territory that doesn’t have tidy precedents, legal analysts say. The FAA has even acknowledged that it may not have the resources to enforce regulations on this ubiquitous technology and that state and local police will be in the best position to stop reckless drone use. So a degree of flexibility in allowing state and local governments to manage drones in the non-navigable airspace could be to the agency’s benefit.

 


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