Legislation Could Spell Trouble for State and Local Drone Zoning

The U.S. Senate Committee on Commerce, Science and Transportation approved legislation that carries the opportunity for the Federal Aviation Administration to trump state and local drone laws.

Legislation approved through the U.S. Senate Committee on Commerce, Science and Transportation March 16 carries with it the opportunity for the Federal Aviation Administration (FAA) to trump state and local drone laws with pre-emptive language.

While many people would not question the FAA's authority in the manned or unmanned flight arena, some make the point that the new language could pose governance problems at the local level.
Under Section 2142 of the FAA Reauthorization Bill (Senate Bill 2658), state and local governments would be prohibited from creating laws or ordinances “relating to the design, manufacture, testing, licensing, registration, certification, operation or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.” 
State and local authorities would, however, retain their ability to address “nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage or other illegal acts.”
Though the language may seem fairly cut and dry, Troy Rule, an associate law professor at Arizona State University’s Sandra Day O’Connor College of Law, said the bill carries larger implications for smaller governments across the country. 
Rule, who specializes in property, secured transaction and energy law and policy, said there has long been precedent surrounding private property and airspace, but the introduction of unmanned technology has added another facet to the conversation.
“Now we have this new technology that allows for pretty much anyone, for a very small amount of money, to access low-altitude airspace to intrude it,” he said. “That really has never existed before. Typically in the past, it’s been a pretty high barrier to entry, a very high cost to entry into that space.”
In his paper, titled Drone Zoning, Rule outlines the issues posed by having a federal pre-emption in this space. Traditionally the requirements to get a pilot’s license and access to a plane or helicopter was an adequate barrier to prevent privacy intrusion into much of the airspace in question, Rule said.
“Now any person with a couple hundred bucks can quickly be in your backyard filming you right above your property, and that’s a big technological change.”
The explosion of the unmanned aircraft systems (UAS) technology has prompted great interest from companies, like Amazon and Google, that have their eyes fixed on the potential for future product delivery. With FAA oversight of the space and the exclusion of state and local red tape, Rule argues these companies could largely forgo what would otherwise consist of a patchwork of local regulations.
“From Amazon’s perspective, that would just be wonderful. It would save them hundreds of millions of dollars,” he said. "They wouldn’t have to negotiate with any land owner, nor would they have to negotiate with any local government over where they flew their drones.” 
“That’s why this is such a big deal,” Rule added. “They would essentially be taking billions of dollars in property rights from all of us collectively.” 
From the perspective of the Academy of Model Aeronautics, the idea of a unified set of federal rules would simplify drone ownership and usage across the U.S., but would ideally be made up of a blend of federal and local rules.
Richard Hanson, the academy’s government and regulatory affairs representative, said the emergence of unmanned systems is behind the “collision” with more traditional aviation governance models. He said the FAA’s emphasis on passenger travel and commerce is having to adjust to fit new trends in the space. 
“Now we are getting into this realm of one, unmanned aircraft and two, aircrafts that have different functionalities and different task purposes for being in the airspace,” Hanson said. “Then we’re also looking at much lower altitude airspace than we traditionally looked at with the transport, commerce type of activity though there certainly is blending and overlap in both.”  
As for the conversation around navigable and non-navigable airspace, Hanson believes the courts may have to get involved to definitively decide where the line of demarcation stands. “The challenge is to integrate this new emerging activity and technology into the existing manned aircraft space,” he said. “That’s what they’ve been working out since 2008 is new regulations ... [to] authorize this new activity to take place.”
When it comes to how he sees large companies playing into the space, Hanson said it would be difficult to see a situation in which the national standards were not put in place.
“In the broader sense, when you start looking at interstate commerce in the future for Google and Amazon, it’s almost a necessity that you have national standards to go by,” he said. 
Eyragon Eidam is the Web editor for Government Technology magazine, after previously serving as assistant news editor and covering such topics as legislation, social media and public safety. He can be reached at eeidam@erepublic.com.