By: Barbara E. Lichman, Ph.D., J.D.

On July 20, 2018, the Federal Aviation Administration (“FAA”) issued a Press Release unequivocally clarifying its views of the distribution of regulatory authority between federal and local governments with respect to the operation of aircraft, and, more specifically, unmanned aircraft systems (“UAS” or “drones”). “Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local laws are not permitted to regulate any type of aircraft operations such as flight paths or altitudes or the navigable airspace.”

The FAA’s position is not new, but arises directly from the Federal Aviation Act (“FAA Act”), 49 U.S.C. §§ 40103(a)(1) [“The United States government has exclusive sovereignty over the airspace of the United States”], and 49 U.S.C. § 47524(c)(1)(A)-(E), enacted as the Airport Noise and Capacity Act of 1990, which prohibits local limitations on Stage 3 aircraft operations in the absence of approval by the Secretary of Transportation and all aircraft operators at the relevant airport.

This seemingly spontaneous reiteration of Congress’ and the agency’s long held positions comes not without provocation.

FAA’s position statement is, instead, provoked by nationwide attempts at the state and local levels to regulate the use of drones for numerous uses including delivery of packages and recreation which are threatening to become endemic in the airspace above populated areas. For example, a California legislator recently introduced legislation purporting to “authorize the [California Department of Transportation] to adopt rules and regulations governing the conditions under which UAS may be operated for the purpose of protecting and ensuring the general public interest and safety and the safety of persons operating the UAS.” See SB 347 [hearing cancelled at the request of the author].

FAA has, however, thrown local governments a “bone” in the form of the Department of Transportation’s UAS Integration Pilot Program (“IPP”). The IPP was initiated ostensibly to “provide FAA with insight on how to best involve local jurisdictions in the integration of UAS into the airspace,” (State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet) and, presumably, to forestall any congressional initiatives generated by constituents to wrest power over drone operations from the FAA.

On May 9, 2018, FAA finalized the selection of 10 state, local and tribal governments to participate in the IPP. These include: (1) Choctaw Nation of Oklahoma, Durant, OK; (2) City of San Diego, CA; (3) Virginia Tech – Center for Innovative Technology, Herndon, VA; (4) Kansas Department of Transportation, Topeka, KS; (5) Lee County Mosquito Control District, Ft. Myers, FL; (6) Memphis-Shelby County Airport Authority, Memphis, TN; (7) North Carolina Department of Transportation, Raleigh, NC; (8) North Dakota Department of Transportation, Bismarck, ND; (9) City of Reno, NV; and (10) University of Alaska-Fairbanks, Fairbanks, AK. The stated purpose of such inclusion is to, among other things, “foster a meaningful dialogue on the balance between local and national interests related to UAS integration.”

Given the renewed assertion of local prerogatives in the face of continued growth of UAS commercial and personal usage, whether the IPP will satisfy its stated goal remains an open question. Meanwhile, stay tuned for continued controversy between the federal and state governments over the burgeoning uses for UAS in the modern economy.

Source: Aviation & Airport Development Law News