North Dakota passed a law authorizing drones within its borders to permit the use of non-lethal weapons such as tasers, rubber bullets, tear gas, pepper spray and sound cannons on UAVs.
California banned unmanned aerial vehicles (UAVs) from flying within 350 feet above property ground level without the operators having received express permission.
Are these statutes valid? Have the actions taken by the FAA over the recent past to regulate drones of UASs permit or prohibit these local laws? The answers are not simply stated; because the analysis of whether the local laws may stand involves “federal preemption.”
Federal preemption is one of the most complex principles of Constitutional Law. The term “Supremacy Clause” sounds more daunting than its denotation conveys; for the actions which a federal agency takes may result in express or implied exercise of its powers. When regulations are issued, assertion of its statutory powers may result in its “occupying the field.” A court looks to see whether the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals and then determines a state law is or is not preempted.
The record of FAA regulatory actions in the drone arena is replete with actions; the paramount example is the issuance of a draft Part 107.
The various FAA pronouncements on UASs have not spoken to what may be or not be mounted on these aircraft. There were no statements about armed UASs. The absence of any rule on what may be included on the vehicle may have been an intentional omission or an inadvertent error. Under its existing TC/PC/AC statutory powers, the FAA may determine whether the equipment is airworthy or not.
It may be asserted that a gun on a UAS might impact its ability to operate based on the discharge of its bullet. Its configuration might limit the aircraft’s ability to maneuver or the existence of an explosive on board might impact the drone if it hit a power line or was struck by lightning. A valid airworthiness issue might include concerns about an armed UAV if the operator loses control and if a third party was able to “hack” its control with malevolent intent.
A court might well decide that those are powers which the FAA may take under its statute; North Dakota’s statute may be found to have interfered with that implicit statutory authority.
The FAA has yet to react to the Connecticut state case in which a student created, operated and fired an armed UAS. If the agency’s response to that flight is it was beyond the scope of its powers, a court may regard that failure to assert its federal preemption.
This assertion of State’s Rights, colored in privacy claims (a Hollywood anti-paparazzi statute?), may be a clearer example of invading the FAA’s safety powers. As the charts below show, the FAA has a very pervasive set of regulations as to the use of airspace by all aviation users—all airplanes: commercial aircraft, rotorcraft, gliders, airships/hot air balloons, GA aircraft, ultralights, SUAS, model aircraft, etc. must adhere to the requirements (equipment, weather, ATC notification) of each of the letter designated airspaces.
Before drones became a reality, the FAA clearly occupied the regulation of airspace; one would expect that, if a state passed a law similar to CA’s prohibiting an airplane from flying without permission, the FAA would take strong action against such a proposed limitation.
The case against the proposed regulation of drones by California is even more persuasive. The FAA’s proposed UAS rules mandate that these vehicles operate below 500’; that altitude was selected to assure separation from the aircraft which must fly, 14 CFR § 91.119, no lower than 500’ over uncongested areas and 1,000’ in congested areas. The CA law would have the effect of cramming all of the UASs between 350’ and 500’. Under certain weather conditions or with a large number of drones flying in an area (particularly when they are flying at different altitudes and/or directions), Senate Bill 142 would dramatically decrease the safety in such areas.
AUVSI’s arguments against the Senate bill focus primarily on commerce considerations (“unnecessary, innovation-stifling and job-killing proposal”). Safety and federal preemption are given only a glancing mention.
Since privacy appears to be the State’s primary consideration, why not ban photographing over property for which the drone operator has not obtained permission? Seems that Senate Bill 142 is overly broad and against the FAA’s Congressional mandate to regulate safety, it most likely will be found PREEMPTED.
These are the first of many, many state and local statutes which will try to regulate the use of UASs in those jurisdictions. Lawyers will be engaged to draft these measures and equal number, including the FAA staff attorneys, will be employed to examine their constitutionality. In AUVSI’s terms, UASs will generate a lot of legal commerce. If the aggressiveness of the defenders is inadequate, the drone business may be harmed. For example, if the FAA counsel does not adequately define its interest in the Connecticut “gunship” case, courts may regard that omission of a concession that the issue is not within the penumbra of the agency’s powers.