Why Many State and Local Drone Laws Will Not Fly

 Why Many State and Local Drone Laws Will Not Fly

 Part One in a Series on Federal Preemption - Mark Del Bianco

The explosive growth in commercial and hobbyist use of drones (a/k/a unmanned aircraft or UAs) is creating fears among citizens and state and local officials about invasions of privacy and possible injuries or property damage. The result is a proliferation of laws and regulations designed to limit or prevent many commercial and personal uses of drones. It is obvious that many of these regulations will be struck down when they are challenged. However, this will be a lengthy, piecemeal process akin to legal whack-a-mole.

For those keeping score at home, or those just looking to predict outcomes, here are the grounds that courts will most likely use to strike down local drone regulations.  I’ll address each of them in more detail in future blog posts. Interestingly, the likely grounds for challenge will shift over time, as more comprehensive federal regulations come into effect and improvements in technology enable longer drone flights and greater payload capacity.

  1. Conflict Preemption

For the next few years, conflict preemption will be the most likely basis for striking down state and local drone regulations. Conflict preemption is a doctrine created by courts to sort out conflicts that regularly arise in the U.S. Under our federalist system of government, legislative bodies at different levels of government can enact laws or regulations that address identical or overlapping issues or behavior. When the laws or regulations impose different requirements, or when one law permits and another prohibits certain behavior, a conflict arises. People and companies affected by these discrepancies need to know what they can and cannot do.   That’s when they ask courts to step in and clarify their obligations.

The federal regulations governing commercial drone use are in flux right now. The FAA has both a process for obtaining one-off exemptions for commercial use of small UA systems (sAUS) (the 333 exemption process) and an ongoing proceeding to establish comprehensive rules for commercial use of sAUS. It hopes to finalize the rules before the end of 2016.

Once the more comprehensive federal rules are in place, conflicts with new and inconsistent state and local laws while inevitably increase. Look for conflicts preemption challenges to state and local laws to proliferate in the next few years. Examples of state enactments that raise potential conflicts preemption issues are the 2015 Virginia drone law and California’s SB 142, which was recently vetoed by Gov. Jerry Brown. The FAA has specifically permitted hobbyists and holders of commercial Section 333 exemptions to make drone flights at altitudes up to 400 feet above ground level (AGL) for a variety of purposes. SB 142 would have made most such flights illegal if they took place in California and were below 350 feet AGL. The potential conflict was clear – SB 142 would have created civil liability for flights that the FAA has already determined to be legal (and which would continue to be legal once the sUAS rules go into effect). Had Gov. Brown not vetoed the bill, a challenge on conflicts preemption grounds would have been swift and likely successful.

  1. Express Preemption

In the ongoing sAUS rulemaking, several parties have asked the FAA to include an express preemption provision in the new rules. Such a provision would affirmatively state that the new federal rules are intended to preempt state laws and regulations applicable to the operation of drones. If the FAA does decide to include a preemption provision – and there is no guarantee that it will – the scope of the preemption language will be crucial. It could range from near-complete preemption to a preemption of just certain types of state regulation, such as flying height restrictions or aircraft marking requirements.

  1. Field Preemption

Another possible basis for a court to strike down a state or local drone law is the doctrine of field preemption. This doctrine is applied when a court concludes that (even in the absence of an express preemption provision) the federal regulatory scheme sufficiently pervades a particular subject area that it was the intent of Congress or the implementing agency for federal law to occupy the entire field and to preclude state or local action. In general, the breadth of any field preemption argument depends on the specificity and comprehensiveness of the federal regulatory scheme in question. The more specific and comprehensive the federal law or regulations, the more likely a court is to find field preemption.

Courts have to date found relatively broad, but not total, field preemption in the federal regulation of aviation. They generally acknowledge the pervasive power of the federal government to regulate aircraft safety and crew qualifications, but have recognized a more limited preemptive scope in areas such as products liability actions. It is safe to say that the strength of any field preemption argument will depend on the scope and comprehensiveness of the sUAS regulations whenever they finally go into effect.

  1. First Amendment infringement

Numerous state and local ordinances are being introduced to address citizens’ privacy concerns and to limit private parties’ ability to use drones to capture data (often referred to in the laws as “conducting surveillance”). There is an inherent tension at all levels of government between privacy and various First Amendment freedoms, including freedom of the press and the right of individuals to gather information, as part of speech or a precursor to it. For example, in recent years, numerous courts have recognized First Amendment protection for videotaping and audio-recording police and private individuals in and around public spaces. The logic of these cases theoretically applies to data acquisition that takes place when a drone is in public airspace, even if the activity about which the data is being acquired is taking place on private property.

There are numerous examples of existing or proposed state laws that are potentially vulnerable to First Amendment challenges. One is House Bill 5 introduced in Georgia this year, which provides that “(a) It shall be illegal for a person to use an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on such individual or property.” This provision is almost certainly unconstitutional, because it imposes overly broad restrictions on fundamental First Amendment rights. It makes the violation dependent on the intent of the actor, singles out one type of technology – UAs – while permitting the use of other types of technology (e.g., ladders, manned aircraft and satellites) to “capture an image” or otherwise conduct surveillance, and does not require that the surveilled party have any, much less a reasonable, expectation of privacy.

The potential for conflicting laws and regulations will only increase over the next few years. Within that period, technological developments will enable longer and autonomous flights by sAUS. Many of these, particularly in large metropolitan areas such as New York, Chicago or Washington, D.C. that border more than one state, while be interstate flights. While the pending FAA regulations will not permit autonomous sUAS flights or flights beyond the operator’s line of sight, the FAA will inevitably revise its rules to permit such flights, probably within 3-5 years. Once the FAA rules are revised, other grounds for striking down state and local laws will come into play. For example, a state that prohibited drones with data acquisition capability (which would be all drones) from flying over private property in the state would arguably violate the Interstate Commerce Clause by imposing unjustifiable burdens not only on a wide swath of interstate commerce originating or terminating in the state, but also on substantial amounts of commerce between other states, commerce which would be burdened by not being able to take a direct route and fly over the enacting state.

About Attorney Mark Del Bianco 

Attorney Mark Del Bianco is Special Counsel to Antonelli Law’s DSC_2812Drone/UAS Practice group. Mark has more than three decades of experience representing clients in federal administrative rulemaking, enforcement proceedings, and court reviews at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. He has litigation experience ranging from state trial courts to case briefs in the United States Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy. He also provides transactional and regulatory assistance to a wide array of clients, including fiber networks, satellite service providers, business owners, application developers and cloud services providers.

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Join the UAS attorneys at Antonelli Law October 5-7 at the Commercial UAV Expo at Caesar’s Palace

Join the UAS attorneys at Antonelli Law October 5-7 at the Commercial UAV Expo at Caesar’s Palace and learn how we’ve helped our clients with Section 333 approvals and beyond in the GIS, power infrastructure, engineering, and construction industries.

We are at Booth 412 http://www.expouav.com/exhibitor-list/

Antonelli Law –

Meet Our New Client Concierge Olivia Fowler

Meet Antonelli Law’s Client Concierge Olivia Fowler

Olivia is the Drone/UAS Practice Group’s Client Concierge, acting as liaison between our clients and attorneys. Her duties include informing clients of the progress of their Section 333 exemption petition and related legal projects, and assisting the attorneys to collect needed information.

Olivia’s organizational and clients skills are a tremendous asset for our clients, helping to keep them informed of the status of their FAA  petitions.

Olivia Fowler Antonelli Law Client Concierge
Olivia Fowler Antonelli Law Client Concierge

Section 333 Templates And Sloppy Copy/Paste Jobs Can Jeopardize Your Insurance Coverage

I am the first, and perhaps only, lawyer who publicly stated you do not have to be a lawyer to file a Section 333 petition with the FAA for commercial UAS operations – I did this even before the FAA began its Summary Grant process.

What I have said is that hiring a law firm to prepare your petition can save you a great deal of time, leave you knowing the petition has been done correctly, and that the petition is right for the proposed operations you will actually be performing.  Plus, you started a relationship with a lawyer who can help you with your post-333 needs.

However, we are seeing folks sloppily copying other companies’ petitions without regard to their content (Eg.: “UAV is the Inspire…flight time is 40 minutes”). Perhaps some of this is coming from companies with non-attorneys selling templates online.

However these errors are occurring, though, the danger in submitting a Section 333 petition that does not match how you actually run your operations, even though it becomes approved by the FAA, is in the event there is an accident your commercial UAS insurance may deny you coverage for the accident claims.

This  is because the Section 333 approval you provided to the insurance carrier in your application for coverage contains the text of your petition as well as the manuals you submitted – and are part of the conditions of your FAA approval. Moreover, the Section 333 is part of the factual representations made to the insurance company. The insurance carrier reviewing the accident claim may notice that your operations are not what you represented them to be in the copy and paste job/Section 333 template – and then deny you coverage.

So, if you cannot afford to hire a lawyer to do it for you, do yourself a favor and take the time to tailor your Section 333 petition to the real operations you will be performing. The days you spend doing this work is a far cry from the stress and possible financial consequences you could face taking short cuts that could leave you not only in trouble with the FAA, but also on the scary end of a hook for personal injury lawsuit judgments and attorneys fees.

Note: In my prior work as an attorney I have worked for insurance company clients and participated in litigation involving insurance coverage. If you want to learn more about how an insurance company can legally deny you coverage, just google “insurance coverage declaratory judgment action.”

Disclaimer: None of the information in this website including this blog post is legal advice. Please consult an attorney if you have legal questions. This website is attorney advertising.


Antonelli Law UAS Client Richter Studios Receives FAA Approval

Antonelli Law UAS client, Chicago’s Richter Studios received approval from the FAA on August 11th to operate the DJI Inspire 1 for aerial cinematography. The FAA approved the petition in less than 90 days.

To contact Richter Studios visit http://www.richterstudios.com/

A copy of the FAA Grant of Exemption under Section 333 can be viewed here: Richter Studios – 12422-1

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Top 3 Reasons to Hire Antonelli Law to Register your UAV (N Number)

1. Registering UAVs purchased from foreign countries like through DJI.com is a complicated bureaucratic process. Why bother to go through this bureaucratic process yourself? Do what you do best instead.

Registering your UAV purchased online from  manufacturers or sellers located in another country will involve not only obtaining FAA official original carbon copy forms but also tedious details including making requests directly with foreign Civil Aviation Authorities for assurances to the FAA that the UAV was previously registered or had a registration that was canceled. Eg: FAA Letter re Sci Aero – Australia Registration

This includes purchases through:

If you can plan ahead of time we recommend purchasing these drones/UAVs domestically if possible to avoid the extra layer of complexity in registering a UAV purchased from a manufacturer or seller located in another country.  

2. Establish a lawyer-client relationship with one of the leading drone law firms in the country. 

By hiring Antonelli Law for your N Number registration you are establishing a lawyer-client relationship and have the ability to call or email us in the future with questions or concerns you have with  at reasonable hourly rates and without high minimums. It will be good to have knowledgeable go-to attorneys when you are operating in the ever-changing regulatory environment of drones.

Even if you obtained your Section 333 Grant of Exemption without Antonelli Law’s help we can assist your company in obtaining their required N Number registrations, also referred to as the ‘tail number.’

3. Obtaining an N Number is required by the FAA prior to commercial operations.

Before you can use that highly coveted Section 333 Grant of Exemption, each UAV you use must have a “Tail Number” also known as an N-Number signifying it is registered with the FAA.

“All aircraft operated in accordance with this exemption must be identified by serial number, registered in accordance with 14 CFR part 47, and have identification (N−Number) markings in accordance with 14 CFR part 45, Subpart C. Markings must be as large as practicable.”

For a flat fee of $250 per UAV/drone, Antonelli Law’s experienced staff will do all the paperwork for you and deal with any necessary back-and-forth with the FAA.

A service like this should not be necessary in our modern digital age but is needed. We love our clients and hope this service will help alleviate a lot of the frustration of trying to deal with the FAA yourself. Note: Some registrations may be higher.

Contact Antonelli Law by clicking here to have us handle the FAA process to obtain your FAA registration and obtain your required N Number.

Obtaining your N Numbers can be done any time prior to commencing commercial flights, even prior to filing your Section 333 petition. You will not be allowed to file for a non-blanket COA without an N-Number.

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Drone Democracy Improves With N Number Registration, Lower Price

Antonelli Law is proud to announce its Drone Democracy program now includes one FAA N number registration and a lower Section 333 legal fee of $1,500 for simple uses like residential real estate,  home and roof inspections, and nature photography with certain drones already approved by the FAA like the DJI Phantom 3.

In June Antonelli Law launched  its Drone Democracy Section 333 service as an experiment, to serve people wanting to use drones for simple uses and at a lower legal cost than our traditional Section 333 petition services for GIS, cinematography, oil & gas, mining, engineering, forensics, and other sophisticated uses.

Please note the Pilot License Requirement:

The company or individual running the operation that holds the Section 333 Grant of Exemption does not need to be a licensed pilot, but the person actually flying the drone/UAV must be. The licensed pilot may be a company employee or an independent contractor, as long as the licensed pilot has the UAV competency and other qualifications articulated in the holder’s Section 33 Grant of Exemption.

The FAA currently allows a sport or recreational pilot license (officially called an airman certificate) to operate drones/UAVs under a Section 333 Grant of Exemption. A driver’s license may substitute for a current medical certificate.

Please click here for Drone Democracy.

For GIS, cinematography, oil & gas, mining, engineering, forensics, and other sophisticated uses:

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Jeffrey Antonelli

Note:  None of the information in this website is legal advice.
Please consult an attorney if you have legal questions. This website is attorney advertising.

Press Release – Chicago Law Firm Secures Federal Approvals for Commercial Drone Use Under Firm’s Section 333 Filing Service

Press Release 8-4-2015

Chicago Law Firm Secures Federal Approvals for Commercial Drone Use Under Firm’s Section 333 Filing Service

Growing number of commercial players in the emerging drone industry seek Antonelli Law’s drone law services to help secure clearance from the Federal Aviation Administration to conduct drone flights

The attorneys of Antonelli Law, a leading Chicago-based drone law firm that specializes in federal commercial drone law, have secured a total of 11 Section 333 Grant of Exemptions, which allow operators of unmanned aircraft vehicles to conduct aerial surveillance for data collection and for a variety of other commercially-driven purposes. The leading drone lawyers at Antonelli law offer a full spectrum of commercial drone law services that have helped clients in the real estate, engineering, and cinematography fields clear the FAA’S legal hurdles to be able to start flying drones in just a few months.

During July 2015 alone, the law firm’s team of legal and aviation experts have successfully secured four Section 333 approvals. Camera and video-equipped drones are increasingly being used by companies large and small to conduct aerial surveillance. And while thousands of U.S. commercial users want to seize on the potential of drones to leverage their businesses, only about 820 total petitions have been approved by the FAA as of July 2015.

The FAA is expected to finalize its laws for commercial drone operators within the next year, but until then, laws dictating commercial drone use will continue to evolve. Obtaining FAA approval for certain types of drone use has become easier in 2015. Recent changes that took effect earlier this year have allowed Antonelli Law’s Drone/UAS Practice Group to secure Section 333 approvals faster than ever—in as few as 90 days. Previously, every petition filed for commercial drone use had to be reviewed by the FAA on a case-by-case basis with full regulatory analysis and publication in the Federal Register.

Kansas City, Missouri-based engineering firm, Burns & McDonnell Engineering Company Inc., is one of Antonelli Law’s latest clients to receive FAA approval. The company—which provides engineering, architecture, construction, environmental and consulting solutions—received clearance on July 14 to operate a variety of small drones, including the DJI Inspire 1, Draganflyer X4-ES, and SenseFly eBee. Burns & McDonnell is one of several clients of Antonelli Law to obtain FAA approval within 90 days.

“The opportunity for Burns & McDonnell to start deploying drones for 3D aerial utility corridor mapping and infrastructure inspections will not only quicken our ability to deliver quality-driven results to our clients, but drones will undoubtedly increase the safety, productivity, and remote sensing options of our existing aerial data gathering operations,” said Steven Santovasi, department manager, geospatial services for Burns & McDonnell. “Federal drone law is not easy to navigate, however. Securing FAA approval to fly required us to engage the services of the drone law experts at Antonelli Law.”

While drones are showing their positive value in fields such as agriculture, architecture, construction, and real estate; smaller business owners interested in launching commercial drone operations often discover the pursuit to be anything but a low-cost, small-investment decision.

This summer, Antonelli’s Drone/UAS Practice Group launched “Drone Democracy,”—a lower-fee Section 333 service intended to help potential operators of commercial unmanned aircraft systems (UAS) obtain expedited legal clearance from the FAA—as a way to help more commercial users be able to fly drones. Created as a division of Antonelli Law’s Drone/UAS Practice Group, “Drone Democracy” exclusively serves commercial UAS users seeking FAA approval to operate drones for small-scale uses like residential real estate and nature photography.

The firm also now assists clients with obtaining the FAA-required N Number registration, a required step in the process to be able to fly a drone also referred to as the “tail number,” which identifies each drone by a serial number. Obtaining an N Number for drones obtained from outside the U.S. can be particularly difficult, but for a fee of $250 Antonelli Law will handle the lengthy, bureaucratic process of obtaining N Number registration for commercial drone users.

As an avid drone-user himself, Antonelli’s passion for the law intersects with his interest in flying unmanned aerial vehicles for fun. On his Drone Laws Blog, Antonelli regularly highlights updates in the FAA’s changing regulations for drone users and keeps followers updated with the latest Section 333 exemptions his firm has secured.

“We’re still on the brink of unearthing the many ways drones can aid in so many facets of society—from aiding in search and rescue missions to speeding-up survey work—we haven’t even begun to tap into the full benefits of drones,” Antonelli said.

For a full list of clients that have successfully secured Section 333 approval with the help of Antonelli Law, visit http://dronelawsblog.com/antonelli-law-clients-receiving-section-333-aproval-faa/.

About Antonelli Law

Located in Chicago, Antonelli Law focuses on drone/UAS law, intellectual property, commercial law, and educational fraud.

Antonelli’s Drone/UAS Practice Groupis leveraged by the legal and aviation expertise of attorney Kate Fletcher, an experienced commercial pilot with one of the world’s largest airlines, and Mark Del Bianco, a Washington D.C. attorney with substantial experience in federal administrative agency rulemakings, enforcement proceedings, and appeals. Antonelli, Fletcher, and Del Bianco together create a unique legal practice to serve clients in the emerging legal landscape of drone law.

Antonelli Law is committed to drawing upon the skilled resources of both technical and legal talent for drone/UAS clients. For more information, visit Antonelli Law or go to Antonelli’s Drone Laws Blog. More information on “Drone Democracy” is available at http://www.dronedemocracy.com.


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The Secret Advice I Have Been Giving About Pilot Licenses & Section 333

I am finally letting the cat out of the bag.

For more than a year now, I have been telling potential clients who  call me about filing a Section 333 Grant of Exemption with the FAA about a wonderful “workaround” if they don’t have a pilot’s license and don’t want to get one.

The issue for so many people and small companies is they simply do not have the time, financial resources, or willingness to go through full fledged flight school to obtain their pilot’s license (“airman certificate”) which the FAA currently requires for flying drones under a Section 333 Grant of Exemption.

So What Should I Do?

There is a terrific loophole in the FAA Section 333 process: a business can apply and receive a Section 333 Grant of Exemption to fly drones commercially and legally, even if the employees and business ownership does not have a pilot’s license, as long as the person actually flying the drone does have a pilot’s license.

Therefore, it is perfectly fine for a company to hire outside licensed pilots to fly their drones. Some companies are cropping up that will supply other companies with licensed pilots who are already familiar with flying drones. One is a client of ours. But there simply are not enough available at this time.

So What is Your “Secret”?

I learned several years ago that many traditional radio-controlled aircraft hobby clubs sanctioned by the AMA (Academy of Model Aeronautics), including my very own rc club, have members who are already FAA licensed pilots who love flying remote controlled airplanes, helicopters, and multirotors – aka drones.

A company can simply call up or visit the AMA model clubs and ask if any of their members are licensed pilots who might be interested in being hired to fly drones for their company.

There is a very easy way to find the contact information for all the clubs in your area: A simple link where you type in your zip code:


Scroll down to see a sample search result for the Los Angeles zip code.

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

If you are a small real estate or home inspection company, you are eligible for our $2,500 Drone Democracy program: click here.

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Sample search on AMA website for Los Angeles – over 40 RC clubs to recruit licensed pilots from within just 25 miles of zipcode 90012!








Copyright permission to display site search results obtained from Academy of Model Aeronautics


Antonelli Law UAS Client Helios Imaging Receives FAA Approval

Antonelli Law UAS client Helios Imaging received approval from the FAA on July 21th to operate the Helios 960, a proprietary design based on the Tarot 960 airframe for closed-set cinematography and construction inspection. Likely due to the custom nature of the proprietary design, the FAA approved the petition in just less than 4 months.

This is the 4th Antonelli Law UAS client this month to receive FAA approval, for a total of 11 widely varied industry clientele.

A copy of the FAA Grant of Exemption under Section 333 can be viewed here: Helios Imaging Inc- 12107

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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An Antonelli Law blog on UAS/Drone Law