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The Murky State of Drone Law
October 11, 2015

That buzzing you hear in your neighborhood may not necessarily be the neighbor’s weed-whacker. Small, unmanned aircraft (“drones”) have become so inexpensive and easy to fly that sales is rapidly increasing. Carrying small cameras, your neighbor can hover his drone nearly anywhere including right over your yard where you used to feel safe gardening in private in your swimsuit. And, the inevitable march of technology will bring us ever smaller, lighter, more automated, and more capable drones.

The controversy surrounding these little invasions of our privacy is mounting. The discussion pits those concerned with privacy and safety against those against government intrusion into our freedom. There is growing pressure all over the country to create local restrictions of drone operations.

As often happens when technology advances so rapidly, the existing laws regarding drones were not created with drones in mind. It has only been in the last few years that someone could hover a device capable of taking video a few feet off your backyard lawn. As a result, the state of regulations as they apply to drones is murky. The public is confused.

Local Regulation

Responding to local concerns for privacy and safety, some jurisdictions are passing local regulations restricting drone operations. Restrictions tend to address where drones can fly, who can fly them, and what can be done with the drones (e.g. surveillance). In San Juan County, the Port of Friday Harbor has prohibited drone operations at least at Jackson’s Beach. (The minutes of that meeting are not posted yet.) Can local jurisdictions regulate drones?

The answer depends on what is regulated and even then is not yet clear. The federal government’s regulations of aircraft and airspace can preempt local regulations. In general, under the Supremacy Clause of the United States Constitution, when Congress declares an intent to preempt state law, or when federal law “occupies the field” being regulated, states and local jurisdictions cannot regulate that area. It seems clear that regulations attempting to restrict the flight path of drones in “navigable airspace” are preempted by federal law and are thus invalid. Congress has stated, “The United States Government has exclusive sovereignty of airspace of the United States.”  49 USC § 40103(a)(1). However, states can still pass regulations that address concerns as owners of land and concerns traditionally addressed by the police powers of the states so long as those regulations to do intrude in exclusively federal areas.

A good example of the distinction between preempted and non-preempted aviation-related law can be found in National Helicopter v. City of New York, 137 F.3d 81 (2nd Cir. 1998). In that case, the City of New York attempted to impose a set of regulations on a particular helipad designed to reduce helicopter noise. The court upheld the reasonable regulations restricting operations out of the heliport itself, such as curfews and restrictions on weekend operations, as allowed essentially because the city was imposing those regulations as the owner of the heliport. However, it invalidated the regulation that restricted the flight path of the helicopters as preempted by federal law.

Although federal aviation regulations are not currently designed to address drones, they still apply. The term “aircraft” in those regulations includes drones. In the 2014 case of Huerta v. Pirker, the National Transportation Safety Board, which hears appeals of FAA administrative enforcement decisions, upheld an FAA finding that a drone operator violated the catch-all regulation prohibiting careless or reckless operation.

What seems clear is that a governmental landowner can prohibit launching and recovering drones on its property. It also seems likely that the government cannot generally regulate the flight path of drones. I say “likely” because it is not entirely clear whether federal law preempts flight path regulations at all altitudes. A drone operator can fly a drone a few hundred feet over private property without permission. But can an hover it a few feet off the ground over someone else’s property without permission?

There are some grey areas. For example, some local laws restrict surveillance using drone cameras. It is not yet clear whether these regulations are within the local police power or whether they are preempted by federal law because they constitute flight path regulations. If they restrict drone flight paths, even if for a purpose within the local jurisdiction’s legitimate scope of concern such as surveillance, then the restrictions are likely invalid. But if the restrictions do not restrict where drones can go but only restrict what can be done with drones in certain airspace, they may not be preempted.

There are no court cases addressing the exactly preemption lines when it comes to drone regulations. Certainly this issue will make its way to the courts. Until then, the power of local jurisdictions to regulate drones is murky.

Federal Regulation

It is clear that federal aviation regulations apply to drones because they are “aircraft.” It is also clear that, as of yet, these regulations are not designed for the unique attributes of drones. The FAA has provided some guidance for “model aircraft.” And, it is working on drone-specific regulations.

When, as kids, we flew our radio-controlled aircraft in our local park, those aircraft were subject to federal aviation regulations. However, many of those regulations did not make sense when applied to our RC planes. As we now know from Pirker, FAR 91.13, prohibiting careless or reckless operation, has always applied. However, fixed wing aircraft are not allowed to fly closer than 500 feet of any person, vessel, vehicle, or structure unless taking off or landing. FAR 91.119(c). We violated that regulation every time we flew our RC planes.

The FAA has a long-standing policy of exercising its discretion to not apply the aviation regulations to “model aircraft” so long as they meet certain criteria. See Advisory Circular 91-57 (now cancelled). Those used to include an altitude limit of 400 feet and a notification to an airport if operating within 3 miles of that airport.

Congress recently passed the FAA Modernization and Reform Act. This Act includes a provision that excludes model aircraft from FAA regulation if the aircraft meet certain criteria. PL 112-95 § 336. Those criteria include operation only for hobby and recreational use, operations within visual sight of the operator, a weight limit of 55 pounds, and a requirement of notification to an airport if operating within 5 miles of that airport. The Act does not limit the FAA’s ability “to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

The FAA has proposed to interpret Congress’s Act very broadly. See FAA Docket No. 2014-0396. The FAA wants to interpret the Act to not prevent the FAA from including model aircraft in regulations not-specific to model aircraft, i.e. regulations applicable to all aircraft. Also, rather than requiring simple notification to an airport within 5 miles, the FAA interprets the Act to require the airport’s authorization of the proposed model aircraft operation. The FAA published this interpretation of the Act as a proposal. I am not sure what the status is of this proposal.

In the meantime, the FAA revised its guidelines for model aircraft just last month. See Advisory Circular 91-57A. The new policy reflects the new criteria for model aircraft in the FAA Modernization and Reform Act, including the criteria listed above. It does not include all of its proposed interpretations. Instead, it includes some vague statement about endangering the national airspace system and lists some specific regulations that apply, such as not flying into airspace where flight is prohibited to all aircraft. It does, however, suggest “best practices” such as not flying above 400 feet.

The FAA is also UAS Notice of Proposed Rulemaking that would apply to drones that are not “model aircraft.” These regulations would apply to drones not used for hobby and recreational purposes. For example, they would apply to a drone operated by or for a realtor who is taking pictures of property to sell. The regulations are somewhat broad but pretty reasonable. They do require passing a knowledge test. Interestingly, they do not require notification to nearby uncontrolled airports. It appears that if a hobby drone operator met these rules when they are finally promulgated, that operator would not need to notify uncontrolled airports.

The Bottom Line

We can no longer take our new toys to the park and fly them without knowing the applicable rules. Drone operators should (1) check to be sure the land owner where the drone is to be launched and recovered has not prohibited drone operations, (2) fly drones in a safe manner away from people, (3) notify an airport located within five miles of the proposed operation, (4) stay under 400 feet, and, importantly, (5) not use the drone for commercial purposes. If the operator wants to use the drone for commercial purposes, a call to the FAA is advisable and soon will be required.

Can drones fly over private property without permission? Yes. How low they can go is still unclear. At some point, the drone could be considered a hazard to safety triggering the “careless and reckless” aviation regulation. Although not yet clear, perhaps local jurisdictions can prohibit surveillance using drones. One must be careful of the criminal voyeur statutes. A victim of surveillance in some limited cases may be able to take advantage of stalking laws to get a protection order. And, publishing of private information obtained with a drone may expose the operator to civil suit for damages. But there is no comprehensive set of laws that clearly delineate where a drone can and cannot go.

There has been some suggestion that drones flown near private property without permission can be shot down.  Washington law does allow the use of “reasonable force” to protect private property from trespass. But there are at least two problems with the use of a weapon to shoot down a drone. First, as I have already stated, it is not clear when a drone is trespassing. It is well established law that we do not own all of the airspace above our property. I am unaware of any case that found a trespass by an object that never touched the ground or something on the ground. Second, discharging a weapon into the air may very well not be “reasonable force” under the circumstances. Illegally shooting down a drone may itself be a crime.

No doubt this article will be out-of-date within a few months or years. So drone operators are best advised to keep up with the developing law on drones.

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