A handful of lawmakers are pushing to tweak language in the reauthorization of the Federal Aviation Administration that state and city officials fear would curtail their ability to establish and enforce local laws dealing with drones.
But the sponsors of the bill appear unlikely to support any efforts to change the provision, arguing that local governments aren’t precluded from carrying out privacy and safety laws related to drones as long as the statutes don’t specifically mention drones, also known as unmanned aircraft systems (UAS).
The FAA measure, which would green light the agency’s programs through fiscal 2017, creates a federal preemption for state or local laws related to the design, manufacture, testing, licensing, registration, certification, operation or maintenance of UAS.
The language specifies that local governments could not enact or enforce laws related to airspace, altitude, flight paths, equipment or technology requirements and pilot requirements, according to the bill text.
Drone policy is likely to take center stage this week as the Senate resumes consideration of the FAA bill, which already contains a number of provisions on UAS.
Of the dozens of amendments that have been filed to the FAA measure, at least two address the drone preemption language.
One from Sen. Edward J. Markey (D-Mass.) would clarify that state and local governments can enact and enforce privacy laws that are related to drones.
Another backed by Dianne FeinsteinDianne Emiel FeinsteinSenate advances Biden consumer bureau pick after panel logjam Republicans caught in California's recall trap F-35 fighter jets may fall behind adversaries, House committee warns MORE (D-Calif.) would limit the preemption language so it only pertains to the manufacture and design of drones. It would still allow federal preemption of operational laws, unless the FAA hasn’t issued a rule on the issue. In that case, states and localities would be able to enact their own rules.
North Carolina Republican Thom Tillis and Connecticut Democrat Richard Blumenthal also support the amendment.
“Reckless drone use varies significantly in different states and even within a state, which is why we need to maintain the ability for states to set their own standards of drone operation,” Feinstein said in a statement.
Even though drone use has exploded, it has taken time for federal regulators to catch up. As the government works to craft a federal framework for the burgeoning technology, dozens of states have enacted drone laws and scores more have considered legislation.
Some cities have ordinances that mandate what time of day drones can be flown and whether they can operate near certain areas such as schools, stadiums or public parks. Other statutes address privacy concerns associated with drone surveillance, which has become a particular concern in cities like Miami and Los Angeles where paparazzi are prevalent.
Matthew Colvin, principal associate of infrastructure and development for the National League of Cities, said local governments are best suited to tailor laws to the different needs and wishes of their communities — not the federal government.
“The cities should have some degree of say as to when and where the drones are operating in their jurisdictions,” Colvin said. “If you’re a bike friendly city, that doesn’t mean people can bike all over the streets and side walks. You put in bike lanes and say here is where you can safely operate.”
A survey from Public Policy Polling found that 68 percent of respondents feel that the federal government does not know the particular concerns of their community well enough to be the sole regulator of commercial drones in their city.
Colvin maintains that the current language in the FAA bill goes beyond the agency’s authority to regulate the safety of the national airspace and infringes on a local government’s right to protect its citizens.
“That space just feet above your head has never been regulated by FAA,” he said.
Although states and cities generally agree that the federal government’s role should involve governing the manufacture and safety of drones, they argue that they should be able to establish zoning laws and other restrictions.
“Much like automobiles and land use development regulations, local leaders know best how to regulate issues that affect their residents in their own backyards,” the National League of Cities and the United States Conference of Mayors wrote in a letter to the Senate Commerce, Science and Transportation Committee last month.
Both groups support Feinstein’s amendment, as does the National Conference of State Legislatures, the National Governors Association and the National Association of State Aviation Officials.
But supporters of the preemption language now in the bill maintain that cities and states are able to govern privacy, safety and other issues associated with drone use without having to regulate UAS in the national airspace, which falls squarely under FAA’s jurisdiction.
The FAA bill clarifies that it shall not undermine local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage or other illegal acts resulting from the use of drones, as long as the statutes are not specifically related to UAS.
“The preemption language included in the Senate FAA Reauthorization legislation merely clarifies the current treatment of this aviation technology, which is that the FAA has exclusive jurisdiction over the airspace,” said Michael Drobac, senior counsel at Akin Gump and executive director of the Small UAV Coalition.
Supporters also maintain that the preemption provision helps prevent a messy patchwork of regulations, which they say could hinder innovation and growth in the drone industry.
“There are some industries and areas that require uniformity with a federal approach, and U.S. airspace is one of them,” Drobac said. “This provision is essential to the prosperity of technology that will transform the way we live for the better and save lives.”