National Academies Press: OpenBook

Evolving Law on Airport Implications by Unmanned Aerial Systems (2017)

Chapter: V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)

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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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Suggested Citation:"V. DRONE FEDERALISM AND PREEMPTION (GENERALLY)." National Academies of Sciences, Engineering, and Medicine. 2017. Evolving Law on Airport Implications by Unmanned Aerial Systems. Washington, DC: The National Academies Press. doi: 10.17226/24932.
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33 case law—and arguably no precedent at all— concerning preemption in terms of UAS operations precisely. Indeed, how UAS operations work into the long-standing preemption framework is unclear. After all, while some UAV fly like traditional aircraft in the navigable airspace, many more fly below 400 feet AGL, altitudes more apt to be privately owned and controlled and/or subject to potential regulation by state and local governments.265 Advances in small unmanned aviation raise the central question of whether federal law alone controls this airspace or whether state and local regulation should dictate the rules of the road for drones flying beneath the UAS. Analysis of this issue begins with the Supremacy Clause in the U.S. Constitution. It provides that the laws of the United States “shall be the supreme Law of the Land; …any Thing in the Constitution or Laws of any State to the Contrary notwithstand- ing.” 266 Pursuant to this provision, Congress has the power to enact laws that preempt and subordinate state and local laws. With respect to manned aviation (and non-avia- tion contexts, too), courts have recognized two types of preemption, express and implied. Express pre- emption exists when the language of a federal law communicates an explicit intent by Congress to pre- empt state law. Whether a federal law preempts a state law is a question of congressional intent. Thus, if Congress intends to govern an issue exclusively it need only say so as it has done in various areas. The Airline Deregulation Act of 1978, which explicitly states that no state may enact any law relating to airline prices, routes, or services, is a good example.267 Yet, the Airline Deregulation Act also is an example of a law in which Congress’s intention is not plainly airspace.260 Due to the requirements for remote pilots to not operate in a careless or reckless manner and to yield the right of way to all other aircraft, the FAA ultimately did not consider it necessary to pro- hibit sUAS operations in the vicinity of an airport in uncontrolled airspace.261 Like ballooning, skydiving, banner towing, and other non-traditional aeronauti- cal activities, the FAA expects that remote pilots will work with airport operators to identify ways to safely integrate sUAS operations into the flow of other operations at the airport such as by the air- port operator recommending areas for UAS opera- tions to avoid conflicts with manned aircraft.262 V. DRONE FEDERALISM AND PREEMPTION (GENERALLY) The new civil sUAS regulation released in June 2016—14 C.F.R. Part 107—represents the first installment of a planned or phased-in approach by federal aviation regulators to integrate drones into the NAS.263 The years-long pace of the rulemaking process has frustrated many commercial drone operators, however, as they waited for clear and con- sistent regulatory guidance while less scrupulous profit-seeking operators flew to gain a competitive advantage. In the absence of black letter law, inter- pretive rules, and federal policies, many states enacted their own UAS specific laws over the last few years to assure public health, safety, and wel- fare and to respond to concerns about the potential for UAV operations of any kind to violate personal property and dignity (e.g., privacy) rights. Conse- quently, today, even after the issuance of Part 107, a patchwork of drone-centered statutes and ordi- nances has emerged beneath the altitude at which the NAS begins, potentially pitting state and federal laws against each other.264 This raises important questions of preemption, a legal concept that explains whether and how federal and state law on the same or similar subject matters can coexist. While courts have applied preemption analysis extensively to manned aviation, there is a dearth of 260 Id. at 42,149. 261 Id. 262 Id. (“In an effort to safely integrate small unmanned aircraft and manned aircraft at an airport, airport opera- tors may recommend certain areas where small UAS operate, in order to avoid conflicts with manned aircraft.”). 263 Id. at 42,071 (“After considering the comments, the FAA has decided to proceed incrementally and issue a final rule that immediately integrates the lowest-risk small UAS operations into the NAS.”). 264 See, e.g., Margot E. Kaminski, Drone Federalism: Civilian Drones and the Things They Carry, 4 CAl. l. reV. CirCuit 57 (2013) (arguing that the “complex space of pri- vacy regulation is best left to the states.”). 265 See generally Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,182 (June 28, 2016) (“…with limited exception, small unmanned aircraft may not fly higher than 400 feet AGL, which fur- ther separates that aircraft operation from most manned aircraft operations in the NAS” (citing 14 C.F.R. § 91.119 (“Minimum safe altitudes: General.”)). 266 U.S. Const. art. VI, cl. 2. But see U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). 267 The U.S. Supreme Court has emphasized a presump- tion against preemption. E.g., Morales v. Trans World Air- lines, Inc., 504 U.S. 374, 421 (1992) (Stevens, J. dissenting: “[a]lthough…the plain language of [the Airline Deregula- tion Act of 1978] pre-empts any state law that relates directly to rates, routes, or services, the presumption against pre-emption of traditional state regulation coun- sels that we not interpret [the law] to pre-empt every tra- ditional state regulation that might have some indirect connection with, or relationship to, airline rates, routes or services unless there some indication that Congress intended that result.”). See also U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1325 (10th Cir. 2010).

34 • 14 C.F.R. § 61.3 provides: “No person may act as pilot in command, or in any other capacity as a required pilot flight crew member of a civil aircraft of United States registry unless he has in his personal possession a current pilot cer- tificate issued to him under this part.” • Prior to flight, the pilot must review available information concerning the flight, 14 C.F.R. § 91.103, verify the aircraft’s airworthiness, 14 C.F.R. § 91.7, and ensure that passengers are briefed on the use of their seatbelts, 14 C.F.R. § 91.107. • 14 C.F.R. § 91.13 provides: “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” • 14 C.F.R. § 91.7 mandates that “[t]he pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.” • 14 C.F.R. § 91.101 states: “This subpart prescribes flight rules governing the operation of aircraft within the United States and within 12 nautical miles from the coast of the United States.” The federal courts that adjudicated the first major cases involving the Federal Aviation Act of 1958 interpreted its legislative history as evincing Congress’s intent to exercise supremacy over the field of aviation safety.271 In fact, just after the pas- sage of the Act, the Second Circuit Court of Appeals remarked: “The Federal Aviation Act was passed by Congress for the purpose of centralizing in a single authority—indeed, in one administrator—the power to frame rules for the safe and efficient use of the nation’s airspace.” 272 How to extend these legal precedents to drones exactly is unclear, particularly as the FAA has stated that it would “address preemption issues on a case-by- case basis rather than doing so in a rule of general applicability.” 273 As to the regulation of “flight altitude, flight paths; operational bans; or any regulation of the navigable airspace,” moreover, the FAA declined to say whether local law was prohibited, stating instead that “consultation with FAA is recommended.” 274 Organizations such as AAAE, meanwhile, have noted that “preemption” is an aggressive term that invites pushback from state lawmakers and urged stakehold- ers to consider a uniform system of UAS operations, including a model statute that eliminates state laws that are duplicative of federal law, e.g., state laws pro- hibiting flight over sports stadiums.275 evident as applied to different situations, requiring courts to interpret whether preemption is implied.268 Implied preemption consists of “conflict preemp- tion” and “field preemption.” The former is said to exist either when compliance with both the federal and state laws is a physical impossibility, or when the state law stands as an obstacle to the accom- plishment and execution of the full purposes and objectives of Congress. The latter exists when a court determines that a federal regulatory scheme is so pervasive that Congress must have intended to leave no room for a state to supplement it. Courts gener- ally understand field preemption to mean that fed- eral law “thoroughly occupies” the “legislative field” in question, e.g., the field of aviation safety. Field pre- emption analysis has come up frequently before courts, particularly in the arena of aviation safety. For example, judges across the nation have rea- soned that Congress, in enacting the Federal Aviation Act of 1958, intended to preempt state and territorial regulation of aviation safety.269 That is, Congress found the creation of a single, uniform system of regu- lation vital to increasing air safety. By enacting the 1958 Federal Aviation Act, for example, Congress intended to rest sole responsibility for supervising the aviation industry with the federal government: 270 [A]viation is unique among transportation industries in its relation to the federal government—it is the only one whose operations are conducted almost wholly within federal jurisdiction, and are subject to little or no regulation by States or local authorities. Thus, the federal government bears virtually complete responsibility for the promotion and supervision of this industry in the public interest. The House Report accompanying the Federal Avia- tion Act of 1958 indicated that one of the purposes of the Act is to give the FAA “full responsibility and authority for the advancement and promulgation of civil aeronautics generally, including promulgation and enforcement of safety regulations.” In addition, in a letter included as part of the House Report, the Airways Modernization Board Chairman wrote: “It is essential that one agency of government, and one agency alone, be responsible for issuing safety regu- lations if we are to have timely and effective guide- lines for safety in aviation.” As evidence of this, since 1958, the FAA has implemented a comprehensive system of rules to effectuate its broad authority to regulate air safety by regulating pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules: 268 E.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 421 (1992). 269 Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1998). 270 Id. (citing S. Rep. No. 1811, 85th Cong., 2d Sess. 5 (1958)). 271 Id. 272 Air Line Pilots Ass’n, Int’l v. Quesada (2d Cir. 1960). 273 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,119 (June 28, 2016). 274 Id. at 42,194. 275 Am. Ass’n of Airport exeCutiVes, UAS Issues and Integration Conference, Nov. 9–11, 2016 (comments of Jus- tin Towles, Vice President, Regulatory and Legislative Affairs, American Association of Airport Executives). See, e.g., Appendix D, infra.

35 has yet decided if this sort of language is consistent with existing federal law or whether existing federal aviation law would have priority over state laws respecting drones. In the absence of definite guidance, the FAA issued a fact sheet in December 2015 entitled “State and Local Regulation of Unmanned Aircraft Sys- tems (UAS).” 284 (See Appendix B-3, infra.) There, the FAA notes that “[s]tate and local restrictions affect- ing UAS operations should be consistent with the extensive federal statutory and regulatory frame- work pertaining to control of the airspace, flight management and efficiency, air traffic control, avia- tion safety, navigational facilities, and the regula- tion of aircraft noise at its source,” 285 as follows: 286 [s]ubstantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized con- trol of the navigable airspace could result. In turn, this “patchwork quilt” of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traf- fic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. A. Federal Preemption of State UAS Laws In contrast to the laws that have defined the rela- tionship between federal and state governments for manned aviation over the last fifty years, UAS laws are not centralized. In fact, several states have enacted drone-specific laws alongside federal UAS laws, and in some cases states lawmakers acted where federal authorities had elected not to act or had not acted more quickly. In the 2016 legislative session alone, at least 38 states had considered leg- islation related to UAS.276 Eighteen states— Alaska, Arizona, California, Delaware, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia and Wisconsin—had passed 32 pieces of legislation.277 Alaska adopted a resolution support- ing the aviation industry and urging the governor to make state land available for use in the develop- ment of UAS technology.278 Delaware adopted a reso- lution expressing support for the development of many facets of UAS and the increased economic and training opportunities available within the FAA reg- ulatory framework.279 The governors of Georgia and North Dakota issued executive orders related to UAS.280 In all, while not every state has enacted UAV related legislation, as of 2017 every state has at least considered UAS legislation (see Figure 6).281 Of the states that have enacted UAS laws, several expressly subordinate their laws to federal law or else state their intention not to interfere with fed- eral law. For example, in a standalone provision entitled “Conformity to Federal Law,” Alaska’s drone laws provide that state aviation authorities “may not adopt a regulation, order, or standard that is inconsistent or contrary to any act of the Congress of the United States or regulations promulgated or standards established.” 282 The law goes on to say that, “[a] regulation, order, or standard may not be adopted that duplicates any current rules or regula- tions issued by a federal agency, or that applies to aircraft, airports, or air navigation facilities owned or operated by the federal government.” 283 No court 276 nAt’l ConferenCe of stAte legislAtures, Current Unmanned Aircraft State Law Landscape, http://www.ncsl. org/research/transportation/current-unmanned-aircraft- state-law-landscape.aspx. 277 Id. 278 Id. 279 Id. 280 Id. 281 nAt’l ConferenCe of stAte legislAtures, Taking Off: State Unmanned Aircraft Systems Policies (2016), http:// www.ncsl.org/research/transportation/taking-off-state- unmanned-aircraft-systems-policies.aspx. 282 AlAskA stAt. § 02.15.030. 283 Id. 284 fed. AViAtion Admin., State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, (Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_ policy/media/uas_fact_sheet_final.pdf. See also FAA Issues Fact Sheet on State and Local UAS Laws, https://www.faa. gov/news/updates/?newsId=84369. 285 fed. AViAtion Admin., State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, (Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_ policy/media/uas_fact_sheet_final.pdf at 1 (“Background”). 286 Id. at 2 (citing Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989), and Arizona v. U.S., 132 S.Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field… even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to fore- close any state regulation in the area, even if it is parallel to federal standards”), and Morales v. Trans World Air- lines, Inc., 504 U.S. 374, 386-87 (1992)). Figure 6. State UAS Rulemaking and Legislation (2017)

36 • The FAA is not persuaded that including a preemption pro- vision in the final rule is warranted at this time. Preemption issues involving small UAS necessitate a case-specific analy- sis that is not appropriate in a rule of general applicability. Additionally, certain legal aspects concerning small UAS use may be best addressed at the State or local level. For exam- ple, State law and other legal protections for individual pri- vacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.294 • Adjudicating private property rights are beyond the scope of this rule. However, the provisions of this rule are not the only set of laws that may apply to the operations of a small UAS. With regard to property rights, trespassing…may be addressed by State and local trespassing laws.295 • [UAV operators] who do not have the facility owner’s per- mission to operate a UAS near or over the perimeter or inte- rior of amusement parks and attractions may be violating state or local trespassing laws.296 • State law and other legal protections may already provide recourse for a person whose individual privacy, data privacy, private property rights, or intellectual property rights may be implicated by a remote pilot’s civil or public use of a UAS.297 • State law and other legal protections for individual pri- vacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.298 • Substantial air safety issues are implicated when State or local governments attempt to regulate the operation of air- craft in the national airspace. The Fact Sheet provides examples of State and local laws affecting UAS for which consultation with the FAA is recommended and those that are likely to fall within State and local government author- ity. For example, consultation with FAA is recommended when State or local governments enact operational UAS restrictions on flight altitude, flight paths; operational bans; or any regulation of the navigable airspace.299 While the FAA has conceded some room for state and local UAS laws, it has recommended that state authorities first consult federal aviation authorities in such matters. B. Federal Preemption of Local UAS Rules Just as state and federal regulators should confer when designing UAS laws, so too should local and national authorities collaborate. For example, a city ordinance that bans anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks should be coor- dinated with the FAA as should operational UAS restrictions on flight altitude, flight path, operational bans, and any regulation of the navigable airspace.300 State and local authorities should also consult with the Framed in this way, the FAA has asserted exclu- sive jurisdiction over UAS operations in the NAS on the basis that Congress vested it with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source.287 Indeed, Congress directed the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace” 288 and further directed the FAA to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes)” for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and pre- venting collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.289 As such, the FAA has taken the position that it has total regulatory authority over matters pertaining to aviation safety and that its complete authority in the area of aviation safety ensures the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions.290 At the same time, however, the FAA elected not to supply a rule addressing the extent of Part 107’s preemptive effect on state and local regulation of UAS because every case would depend upon the purpose and terms of the state law and its relation- ship to any applicable federal law.291 As such, the FAA took the position that it could not by definition supply a rule addressing all state and local regula- tion as preemption would depend upon the purpose and scope of the state and local regulation.292 How- ever, in the Preamble to Part 107, the FAA has stated several matters over which local regulation could be appropriate: • This rule does not address preemption issues because those issues necessitate a case specific analysis that is not appropriate in a rule of general applicability. The FAA notes, however, that state governments have historically been able to regulate the takeoffs and landings of aircraft within their state boundaries.293 287 Id. at 1 (“Why the Federal Framework”), citing 49 U.S.C. §§ 40103, 44502, and 44701-44735. 288 Id. (citing 49 U.S.C. § 40103(b)(1)). 289 Id. at 2 (citing 49 U.S.C. § 40103(b)(2)). 290 Id. at 2 (“A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations.”). 291 fed. AViAtion Admin., Comments to Initial Draft, Evolving Law on Airport Implications by Unmanned Aer- ial Systems, Feb. 8, 2017. 292 Id. 293 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,085 (June 28, 2016). 294 Id. at 42,194. 295 Id. at 42,131. 296 Id. at 42,132. 297 Id. at 42,192. 298 Id. 299 Id. at 42,194. 300 Id.

37 The ordinance also sets out locality-specific prohibi- tions, the broadest of which prohibits UAS from “being deployed, launched or flown in any airspace within or over any sporting and/or large venue spe- cial event, including but not limited to, over and within a half-mile radius of Bayfront Park, Marlins Ballpark, Miami Marine Stadium, or the Calle Ocho Festival when it is in use during a large venue spe- cial event, and over public parks and public facilities during large venue special events.” 306 In all other areas of the city, the ordinance imposes restrictions that are largely duplicative of FAA regulations: (1) UAS may not be larger than five pounds including any attachments, and may not be equipped with detachable cargo, releasable pay- load, or any device equipped to carry a weapon. Any modifications to a UAS must be pursuant to FAA approval and registered via the city’s application process; and (2) UAS over five pounds may be oper- ated only by a registered member of the Academy of Model Aeronautics, if the operator is subjected to and compliant with AMA rules.307 The ordinance created an enforcement regime, moreover, whose compatibility with FAA enforce- ment authority was at least initially unclear. Any person in violation of any provision of the ordinance, upon conviction “will be fined not more than $500.00, or be imprisoned at hard labor on the streets or other works of the city for not more than 60 days, or shall be both fined and imprisoned. Each day that such violation shall continue (or, in the case of shows and exhibitions illegally conducted, each performance) shall constitute a separate offense.” 308 However, in addition to, or in lieu of any criminal prosecution, the city has the power to sue in civil court and to enforce the provisions of the ordinance before its code enforcement board.309 And, in addition to these pen- alties, a UAS operated in violation of the law will be impounded and held until the conclusion of the court or code enforcement proceedings.310 FAA if and when mandating equipment or training for UAS related to aviation safety such as geo-fencing, which the FAA contends would likely be preempted.301 A UAS ordinance issued by the City of Miami ani- mated the tension between local governments and the FAA that can sometimes exist between local govern- ments and the FAA when legislation is not coordi- nated.302 The importance of consultation between local and federal UAS authorities gained prominent atten- tion when, according to a New York Times report, law- yers from the FAA called the city council in Miami, Florida to make clear that the federal agency had ulti- mate control over airspace.303 The controversy cen- tered on Miami-Dade County’s Ordinance Section 37-12 entitled, “Public safety and unmanned aircraft systems, commonly known as drones,” which focuses on excluding drone operations from large public events locally—an issue arguably also and already covered by UAS authorities nationally. 304 The Miami ordinance provides: 305 The [ordinance] is intended to promote public safety and protect people attending large venue public events from the flying of unmanned aircraft systems (UAS) in and over such large public events. The city commission wishes to regulate the use of UAS within a half-mile radius around stadiums and sport facili- ties when these devices are in use, and over other large venue special events in public parks, public facilities, streets, plazas, open spaces and the like that will attract large groups of people. All restrictions are intended to protect persons gathered in groups where a UAS incident would cause greater harm and risk of injury due to a greater number of people gath- ered in a close proximity. It is not intended to restrict legitimate hobbyists operating UAS in compliance with FAA rules and any other applica- ble laws, and outside of the prohibited areas. This Section is not intended to preempt FAA rules, but rather to operate in conjunction with those rules to promote public safety while recognizing the limitation in the FAA’s enforcement capabilities. 301 Id. (“Courts have found that state regulation pertain- ing to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework”), citing Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 713, 722 (M.D. Tenn. 2007)). 302 Matt Grosack, New Miami City Drone Ordinance Here to Stay?, dAily bus. reV., (Jan. 12, 2016), http:// www.dailybusinessreview.com/id=1202746857801/New- Miami-City-Drone-Ordinance-Here-to-Stay?slreturn= 20160407105947. 303 Cecilia Kang, FAA Drone Laws Start to Clash with Stricter Local Rules, N.Y. times, (Dec. 27, 2015), https:// www.nytimes.com/2015/12/28/technology/faa-drone-laws- start-to-clash-with-stricter-local-rules.html?_r=0. 304 miAmi, flA., Code of ordinAnCes, Order No. 13581, § 37-12 (2015). 305 Id. 306 Id. at § 37-12(c)(1). 307 Id. at § 37-12(c)(2). 308 Id. at § 37-12(f). 309 Id. 310 Id. at § 37-12(e). Following its receipt of a request for an adversarial hearing by the UAS owner, the city must schedule a hearing before a hearing officer within 45 days. Id. The hearing officer must conduct a full adversarial hearing and will render a decision in writing after the hearing. Id. At the hearing, it is the city’s burden to dem- onstrate a violation, and the hearing officer finds that the city has not met this burden, it must relinquish possession of the UAS to the owner. Id. Formal rules of evidence do not apply and hearsay and circumstantial evidence are admissible. Id. Title to any unclaimed UAS lawfully impounded and in the custody of the city will vest perma- nently in the city 60 days after the conclusion of the pro- ceeding in accordance with Fla. Stat. § 705.105. Id.

38 Relating to “small unmanned aircraft,” specifi- cally, the Chicago ordinance does what many other local ordinances do—establish some of the same rules already established by the FAA. For example, it prohibits any person from flying “in city airspace” except for hobby or recreational purposes; over any person who is not involved in the operation of the small unmanned aircraft, without such person’s consent; over property that the operator does not own, without the property owner’s consent, and sub- ject to any restrictions that the property owner may place on such operation; at an altitude higher than 400 feet above ground level; in a careless or reckless manner; in violation of federal or state law; or within five miles of an airport.316 Violators are subject to a fine between $500 and $5,000 or may be incarcer- ated up to 180 days.317 Despite its redundancy with federal UAS regulations, the Chicago ordinance— like the Miami-Dade ordinance discussed in Part V.B, supra—carves out an exception for federal law: Operations Authorized by the FAA – Exception. Not- withstanding the prohibitions set forth in this section, noth- ing in this section shall be construed to prohibit, limit or otherwise restrict any person who is authorized by the Fed- eral Aviation Administration to operate a small unmanned aircraft in city air space, pursuant to Section 333 of the FAA Modernization and Reform Act of 2012 or a certificate of waiver, certificate of authorization or airworthiness certifi- cate under Section 44704 of Title 49 of the United States Code or other Federal Aviation Administration grant of authority for a specific flight operation(s), from conducting such operation(s) in accordance with the authority granted by the Federal Aviation Administration. Operations Prohibited by the FAA – Clarification. Nothing in this section shall be construed to authorize the operation of any small unmanned aircraft in city airspace in violation of any Federal statute or rules promulgated there- under, including, but not limited to, any temporary flight restrictions or notices to airmen issued by the Federal Avia- tion Administration. Other local laws around the nation are also argu- ably duplicative of federal law and facially concede their inferiority to federal law. For example, Ordi- nance No. 16-10 in Lawton, Oklahoma relies explicitly on federal law. It states that UAS “operations must be conducted in strict compliance with all Federal Avia- tion Administration regulations applicable to the par- ticular operation.” 318 Furthermore, “[e]xcept for UAS operations specifically authorized by the FAA, the area within five (5) miles of and on airport property is a no drone zone. Unauthorized UAS operations in the Notwithstanding the foregoing, the Miami-Dade ordinance, by its own terms, does not intend to pro- hibit, limit, or otherwise restrict any person who is authorized by the FAA to operate small unmanned aircraft in any city air space, pursuant to Sections 331–336 of the FAA Modernization and Reform Act of 2012 or certificate of waiver, certificate of authoriza- tion, or airworthiness certificate under section 44704 of Title 49 of United States Code, other FAA grant of authority for a specific flight operation or operations, or from conducting such operation(s) in accordance with the authority granted by the FAA.311 Yet, the ordi- nance also sets out a detailed process at the local level that requires completion of an application for certain activities so that city officials and employees can regu- late activities that would tend to damage private and/ or public property, endanger the public or event attend- ees, or which are likely to create an atmosphere which would discourage use of city-owned property, other locations, or venues for their intended purpose.312 C. State Preemption and Local UAS Ordinances As detailed above, local lawmakers, like their coun- terparts at the national and state level, have tried to manage the proliferation of UAS operations over, near, at, and around airports, critical infrastructure, and public and private property by enacting various codes, ordinances, and policies.313 An unsuccessful attempt by the town of Deer Trail, Colorado, to authorize the issu- ance of licenses to allow residents to hunt and shoot down drones is perhaps the most notable example.314 Like their state counterparts, too, local authori- ties who perceived the efforts of federal regulators to be lagging have acted (see, e.g., Appendix G). In November 2015, for example, Chicago became the first major American city to pass a comprehensive drone ordinance. The co-sponsor of the ordinance, Alderman Edward Burke explained the need for a local ordinance by stating, “[n]otwithstanding those proposals being discussed in Washington, Chicago simply needs local laws in place to authorize the city to take action against those who operate drones recklessly and threaten public safety.” 315 311 Id. at § 37-12(e). 312 Id. at § 37-12(d). 313 To access a broad listing of county and municipal UAS legislative proposals, see institute for nAt’l seCu- rity And Counterterrorism, syrACuse uniVersity, domes- tiCAting the drone, http://uavs.insct.org/local-regulation/. 314 E.g., Katy Steinmetz, Colorado Town Won’t Issue Drone-Hunting Licenses, time, (Apr. 2, 2014), http://time. com/46327/drone-hunting-deer-trail/. 315 Fran Spielman, Drone Regulations Fly with City Council, ChiCAgo suntimes, (Nov. 18, 2015), http://chicago. suntimes.com/politics/drone-regulations-fly-with-city- council/. 316 Chicago, ILL, Municipal Code of Chicago, § 10-36- 400(b). See also nAt’l leAgue of Cities, Cities And drones: WhAt Cities need to knoW About unmAnned AeriAl Vehi- Cles (uAVs), 2016, at 21. 317 Id. § 10-36-400(d). 318 lAWton, oklA., Code of ordinAnCes, § 7-3-2-343(A)–(B).

39 • No locality in Virginia is permitted to regulate the use of privately owned, unmanned aircraft sys- tem within its boundaries.324 In contrast to these jurisdictions, in North Carolina, a unit of local government has explicit authority to adopt an ordinance to regulate the use of the local government’s property for the launch and recovery of UAS.325 The right of a state to preempt and subordinate local law is sometimes referred to as Dillon’s Rule, named in connection with court decisions issued by Judge John F. Dillon of Iowa in 1868.326 It affirms a narrow interpre- tation of a local government’s authority, in which a local or municipal government (i.e., a “substate”) may engage in an activity only if it is specifically sanctioned by the state government.327 The tenets of Dillon’s Rule have become a cornerstone of American municipal law and have been applied to municipal powers in most states, providing that a municipal corporation can exercise only the powers explicitly granted to them; those neces- sarily or fairly implied in or incident to the powers expressly granted; and those essential to the declared objects and purposes of the corporation, not simply con- venient, but indispensable.328 no drone zone are strictly prohibited.” 319 Whether these laws (i.e., Miami-Dade, Chicago, Lawton, and elsewhere) could survive a preemption challenge by federal regulators is a legal question that has not been tested in court. Some states have cut off the ability of cities, municipalities, and local governments to regulate UAS in the first place by enacting state statutes giv- ing state UAS law a preemptive effect. For example: • Alaska state law preempts local law with respect to images captured by drone, stating, “[a] municipal- ity may not adopt an ordinance that permits the re- lease of images captured by an unmanned aircraft system in a manner inconsistent with Alaska Stat. 18.65.903, which governs the retention of images.320 • Arizona state law provides that “[e]xcept as authorized by law, a city, town or county may not enact or adopt any ordinance, policy, or rule that re- lates to the ownership or operation of an unmanned aircraft system or otherwise engage in the regula- tion of the ownership or operation of an unmanned aircraft or unmanned aircraft system. Any ordi- nance that violates this subsection, whether enact- ed or adopted by the city, town or ordinance before or after the effective dates of this section, is void.321 • Maryland codified a law that vests the state gov- ernment with exclusive authority to regulate the test- ing or operation of UAS, preempting the authority of counties and municipalities: “Only the State may en- act a law or take any other action to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems in the State.” As such, the law “pre- empts the authority of a county or municipality to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems; and supersedes any existing law or ordinance of a county or municipality that prohibits, restricts, or regulates the testing or operation of unmanned aircraft systems.” 322 • In 2016, Rhode Island enacted its first drone law, giving the state and the Rhode Island Airport Cooperation exclusive authority to regulate “any ob- ject capable of flying, which is remotely controlled, and flies autonomously through software controlled flight plans embedded in the object’s system by a global positioning system, commonly known as un- piloted aerial vehicles, remotely piloted aircraft, drones, or unmanned aircraft systems.” But all of this may be for naught as the law concludes by stat- ing that “if federal law preempts any provision of this chapter, that provision shall not apply.” 323 319 Id. 320 AlAskA stAt. § 29.35.146. 321 Ariz. reV. stAt. § 13-3729. 322 md. Code Com. lAW § 14-301. 323 2016 R.I. lAW Ch. 16-256 (16-S 3099); 2016 Rhode Island Law Ch. 16-261 (16-H 7511B). 324 VA. Code § 15.2-926.3. See also Office of the Attorney General, Opinion, July 13, 2015, available at 2015 WL4502248 (“It is my opinion that the federal Deregulation Act expressly preempts state or local regulation of the routes, rates, and services of commercial drones used to transport property across state lines. Furthermore, the Avi- ation Act and FMRA preempt state and local regulation of drone safety, operational standards, and airspace designa- tions, including particular issues relating to drone certifica- tion, training, and licensure. There are certain exceptions to federal preemption… States remain free to enact laws relat- ing to drones if the laws fall outside the scope of the Aviation Act and FMRA and do not conflict with other federal laws or regulations. In particular, states may regulate small drones that are exempted from federal regulation under the FMRA, and they may also enact laws for drones that address issues of privacy and property and also criminal offenses, so long as the laws do not conflict with the language or purpose of any existing federal aviation law.”). 325 N.C. stAt. § 15A-300.2(b). 326 nAt’l leAgue of Cities, Local Government Authority, http://www.nlc.org/build-skills-and-networks/resources/ cities-101/city-powers/local-government-authority. 327 1 J. dillon, CommentAries on the lAW of muniCipAl CorporAtions § 237 (5th ed. 1911). 328 Thirty-nine states employ Dillon’s Rule to all munici- palities: Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, West Virginia, Washington, Wisconsin and Wyoming. Eight states employ the rule for only certain municipalities: Alabama, California, Colorado, Illinois, Indiana, Louisiana and Tennessee. The only excep- tion to the exclusive selection of home rule or Dillon’s rule is the state of Florida, which employs home rule but reserves taxing authority for the state.

Next: VI. UAS AND TORT LAW: STATE POLICE POWERS »
Evolving Law on Airport Implications by Unmanned Aerial Systems Get This Book
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TRB's Airport Cooperative Research Program (ACRP) Legal Research Digest 32: Evolving Law on Airport Implications by Unmanned Aerial Systems provides guidance to enhance understanding of the basic legal and operational issues presented by civil unmanned aerial systems (UAS), and evaluates best practices for managing these issues. The digest covers background on UAS uses, applications, regulations, and definitions, leading to operations within the National Airspace System (NAS), the issues of federalism as it relates to local and state laws, tort law implications, operations at airports, and best practices for airport operators. Appendix B—Guidance and Policy Documents and Appendix I—Summary of Interviews and Poll Results are available online.

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