Soon after the FAA issued its controversial IFR on Registration, a far more innocuous document was issued labeled Fact Sheet on State and Local UAS Laws. The registration rule compels thousands or millions of drone pilots to submit information and pay a fee to the federal government. The Fact Sheet is an exercise of federal preemption.
This simple document establishes what the FAA claims as its exclusive jurisdiction. It does so with the innocuous, less aggressive sounding phrase “federal regulatory framework.” The foundation for this assertion is primarily the promulgation of Part 107, Federal Aviation Administration’s (FAA) proposed rule, “Operation and Certification of Small Unmanned Aircraft Systems” (Docket No. FAA-2015-0150).
The Office of the Chief Counsel premised its Fact Sheet with an important precursor to the quiet assertion of federal over state laws in the UAS sector: “In 2015, approximately 45 states have considered restrictions on UAS.” In response to those legislative initiatives, the memorandum then establishes the metes and bounds of what is the FAA turf. The document also explains the boundaries of legal powers for which the states/cities may claim authority, but must first consult with the FAA. A final category provides examples of laws which the states should consider adopting:
- Requirement for police to obtain a warrant prior to using a UAS for surveillance.
- Specifying that UAS may not be used for voyeurism.
- Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
- Prohibitions on attaching firearms or similar weapons to UAS.
This is a classic example of the assertion of “express preemption” and secures a broader swath than implied preemption (conflict or field).
Interestingly, unlike the registration IFR which engendered so much negative (and positive) responses, the Fact Sheet was almost immediately greeted with a laudatory press release issued by Consumer Technology Association (CTA)TM. Its vice president, technology policy, Douglas Johnson, said:
“We appreciate the FAA reminding state and local officials that the federal government has exclusive jurisdiction over UAS safety, including flight altitudes, flight paths and no-fly zones. State and local ordinances in these areas are invalid and preempted, and state and local requirements for drone registration are impermissible.
Increasingly, local government leaders and elected officials are addressing the importance of safe drone usage and dangers of flying drones carelessly. But the myriad of misaligned and conflicting local rules now emerging across the country threatens to throttle this nascent technology.
Overzealous regulation will damage entrepreneurs and startups, stifle current job creation and hinder the remarkable economic potential the drone sector offers. This sloppy patchwork of rules will confuse casual hobbyists and commercial operators alike, and undercut federal and industry UAS safety initiatives.
The safe integration of drones will provide life-altering innovations such as the rapid delivery of life-saving diagnostics and medicine, and remarkable improvements in crop production and efficiency. But to realize this remarkable potential, local officials must defer to the FAA on federal rules that allow for drone operation and provide for continued industry and government cooperation.”
It is rare day when the FAA gets praise for asserting jurisdiction, but its issuance of its Fact Sheet received high praise.