“It was the best of times, it was the worst of times…”
– Charles Dickens, A Tale of Two Cities
The quote above aptly describes the present legal landscape surrounding drones. Drone technology and popularity continues to skyrocket. But as numerous state and local laws regulating drones conflict with both the FAA’s contention that it controls the airspace and the FAA’s desire to establish a single national policy for drones, the legal and regulatory framework in the U.S. remains murky.
The FAA’s authority to regulate airspace, noise control, and safety is not questioned. Indeed, any attempt by states to regulate those aviation subfields will be deemed preempted. Despite this, manyargue that “the FAA’s authority over safety still leaves a lot of room for states to act, and they have.” Furthermore, whether that authority extends to issues like privacy is questionable.
“This is a world of action, and not for moping and droning in.”
– Charles Dickens
State and local governments have enacted hundreds of statutes and ordinances that seek to regulate drones. Those statutes and ordinances have created a patchwork of varying laws and regulations affecting drone operations.
“I only ask to be free. The butterflies are free.”
– Charles Dickens, Bleak House
In an effort to clarify the responsibilities of federal, state, and local governments with respect to the regulation of drones, Senator John Thune recently introduced “Federal Aviation Administration Reauthorization Act of 2016” (the “FRA”) in the U.S. Senate.
Section 2142(a) of the FRA would establish a federal preemption for state and local laws relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of a drone, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.
However, under Section 2142(b), state or local laws (including common law causes of action) relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of drones would not be preempted if they are not specifically related to the use of a drone.
Express preemption occurs when Congress has explicitly stated that state law will be preempted by the enactment of federal law or regulation. The FRA is a bold and important proposal because onlytwo other instances of express preemption exist regarding aviation: (1) Congress has expressly asserted “exclusive sovereignty of airspace of the United States,” and has placed “exclusive authority for regulating the airspace above the United States with the [FAA]” and (2) Under the Airline Deregulation Act of 1978, Congress prohibited states from enacting laws “related to a price, route, or service of an air carrier that may provide air transportation.”
“‘Do you spell it with a ‘V’ or a ‘W,’ inquired the judge? That depends upon the taste and fancy of the speller, my Lord.”
– Charles Dickens, The Pickwick Papers
The FRA is Congress’ attempt to establish a single national policy for drones by explicitly granting the FAA supremacy over all laws seeking to regulate drone operations. But many argue that it “would also block local governments from adopting measures prohibiting encroachment on private property.”
The patchwork of laws whereby federal, state, and local governments all seek to regulate drone operations creates a Byzantine scheme that only inhibits the growth of the drone industry. It is unnecessary for state or local governments to enact drone specific legislation, as existing state or local laws already cover the areas delineated in Section 2142(b) of the FRA.
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