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Focus on Regulation

FAA Warns State and Local Governments on Impermissible Regulation of UAS

The FAA’s Office of Chief Counsel yesterday released new guidance for state and local government authorities as they increasingly seek to regulate unmanned aircraft systems (UAS), or drones. The FAA’s State and Local Regulation of UAS Fact Sheet provides basic information about the federal regulatory framework for use by states and localities when considering proposing legislation or ordinances that would affect the use of UAS.

In response to a flurry of local and state UAS policy proposals, the FAA clarified that “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. To ensure the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions, FAA has regulatory authority over matters pertaining to aviation safety.”

This has broad implications for what states and localities are trying to do. Across the country, states and cities are attempting to impose their own registration and operational requirements for UAS. These may in fact be preempted. For example, the FAA declared that federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace. Therefore, no state or local government may impose additional registration requirements on the operation of UAS in navigable airspace without first obtaining FAA approval.

In the words of the FAA, “Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft.” As such, the agency recommended that local and state governments seeking to impose operational restrictions on flight altitude or flight paths, for example, would need to consult with the agency first. Lawmakers seeing to mandate equipment or training for UAS, such as geo-fencing, would likely be preempted.

However, the FAA also stated that laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Therefore, the FAA acknowledged that it is within local and state government purview to require their police to obtain a warrant prior to using a UAS for surveillance, or specifying that UAS may not be used for voyeurism.

Notwithstanding FAA’s view, we anticipate states and localities will continue to try to regulate in this area. Stay tuned.