Category Archives: local drone laws

Drone Regulations in 2017 – Will Growth of the U.S. Commercial Drone Industry be Collateral Damage of the Trump Surprise?

Part Four in a Series on Federal Preemption – Mark Del Bianco, Special Counsel to Antonelli Law

Prognosticators and pundits in Washington and far outside the Beltway are trying to read the (admittedly very skimpy) tea leaves and figure out what the unanticipated Trump victory means for [fill in the industry, country or policy area of your choice here].  I’ll play the game, but rather than opining on broad, sweeping issues, I’ll focus on the wonky issue of what the election means for the U.S. commercial drone industry.

I’ll start by stating a couple of assumptions that underpin my analysis.  First, unlike most industries, stakeholders in the commercial drone industry want more federal regulations.  The sooner, the better in most stakeholders’ view.  Second, the industry has only limited potential for growth absent federal rules permitting flights at night, flights over uninvolved people, flights beyond the operator’s visual line of sight (BVLOS), and autonomous flights. 

The state of play right now is that the FAA, having promulgated the initial Part 107 rule in August, seems to be picking up steam in its regulatory process. See http://www.dronedefinition.com/on-his-way-out-us-transportation-chief-anthony-foxx-sets-drones-free/. Its Pathfinder program is developing data on BVLOS and autonomous flight. The agency has been drafting a rule that would allow flights over uninvolved people, and according to reports has sent the draft to OMB for approval.  That OMB review can take 90 days or more, so it could easily stretch into the new Trump Administration.

Trump, like other recent Republican presidents-elect, has called for a moratorium on new federal agency regulations during the first part of his presidency.  According to the campaign website, the moratorium would apply to all new regulations “that are not compelled by Congress or public safety in order to give our American companies the certainty they need to reinvest in our community, get cash off of the sidelines, start hiring again, and expanding businesses.” See https://www.donaldjtrump.com/policies/regulations.  Neither the website nor any of Trump’s speeches provide much guidance about how long the proposed moratorium might last.  Given the uncertainty, it seems very possible that new drone regulations may not be in place until late 2017 or even 2018.  Given the explosive pace of technological development in the industry, this delay could leave the U.S. commercial drone industry at a tremendous competitive disadvantage compared to other countries that have put a comprehensive framework in place.  It is possible that the U.S. commercial drone industry’s growth could actually be collateral damage of the election.

There may be a small silver lining in the regulatory cloud.  Like many in the commercial drone space, I see the patchwork of problematic (and often unconstitutional) state and local laws as a substantial and growing roadblock to the growth of the industry in the U.S.  But now there’s news that Palm Beach, Florida, which had enacted an ordinance with scant care for whether it conflicted with federal law, has acknowledged the need to consult with federal authorities as it rewrites its law to protect its most famous resident, Donald Trump. http://m.palmbeachdailynews.com/news/news/local/drone-regulations-on-hold-to-discuss-trumps-safety/ns62W/. Perhaps the other localities where Mr. Trump owns homes (such as Los Angeles) will take a similar approach.  Who knows, common sense might break out nationwide.

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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Utah’s New Anti-Drone Law is a Bad Idea Whose Implementation Requires Violation of Federal Communications Law

Part Three in a Series on Federal Preemption – Mark Del Bianco, Special Counsel to Antonelli Law

Utah’s New Anti-Drone Law is a Bad Idea Whose Implementation Requires Violation of Federal Communications Law

This blog post was inspired by a comment on Twitter yesterday that prompted me to read the new Utah anti-drone law, S. 3003, which the governor signed into law this week. Like so much drone-related state and local legislation, the Utah law is well-intentioned but not fully thought through.  In fact, it’s one of the most troubling pieces of legislation I’ve seen in a long time.

In a nutshell, the key part of the law gives the “incident commander” of a “wildfire situation” the authority to “neutralize” an unmanned aircraft (drone) flying within a certain distance of the wildfire.  Neutralize “means to terminate the operation of an unmanned aircraft by: (i) disabling or damaging the unmanned aircraft; (ii) interfering with any portion of the unmanned aircraft system associated with the unmanned aircraft; or (iii) otherwise taking control of the unmanned aircraft or the unmanned aircraft system associated with the unmanned aircraft.”

This Utah law conflicts with a number of federal laws and regulations.  First, if an incident commander were to disable or damage an unmanned aircraft, he or she would be violating 18 U.S.C. § 32, which provides that anyone who “willfully . . . disables . . . any civil aircraft used, operated or employed in interstate, overseas or foreign air commerce . . .  shall be fined . . . or imprisoned not more than twenty years or both.”  To date, neither the FAA nor the U.S. Department of Justice have displayed any desire to prosecute even individuals who admit shooting down drones, so the risk that a Utah state official would be prosecuted under § 32 for disabling a drone may be more theoretical than actual.  But the conflict between state and federal law is real, particularly in light of the U.S. District Court ruling this week confirming that drones are in fact aircraft and the FAA has jurisdiction to regulate them.

Moreover, an incident commander used a jamming device to bring down a drone would be violating federal communications law and might face greater scrutiny from the Federal Communications Commission. There is no question that federal preemption exists here.  Unlike the somewhat convoluted preemption situation in the aviation industry, the Communications Act gives the FCC the sole authority to regulate “interstate and foreign commerce in wire and radio communication.” 47 U.S.C. § 151.  The Communications Act’s provisions and the FCC’s jurisdiction “apply to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received in the United States . . . .” 47 U.S.C. § 152(b). The federal courts have consistently confirmed that only the FCC has the authority to regulate services that are interstate in nature, or that have mixed interstate and intrastate components. Louisiana Pub. Serv. Comm’n, 476 U.S. 355, 368-369 (1986) and City of New York v. FCC, 486 U.S. 57, 63-64 (1988).

Jamming GPS, cellular or other radio signals used by the drone to navigate and to communicate would be a violation of the Communications Act of 1934.  The FCC has long taken the position that it is illegal for anyone – specifically including the state law enforcement officials – to jam such communications signals.  Take a look at https://www.fcc.gov/general/cell-phone-and-gps-jamming.  For example, Utah and other states have tried for more than six years to get FCC permission to jam cell phones that have been clandestinely smuggled into prisons. http://bigstory.ap.org/article/cff25c89135344acb773c4ec5dbb1837/gop-governors-ask-fcc-address-illegal-prison-cellphones. The FCC has to date refused, and is taking the position that its rules (47 C.F.R. § 2.803) prohibit the manufacture, importation, marketing, sale or operation of such devices within the United States except by federal government agencies that have received an FCC exemption (47 C.F.R. § 2.807).   In the FCC’s view, even owning a device capable of jamming such signals is a violation of the Communications Act, specifically Sections 301, 302(b) and 333.  Its website notes that violations are punishable by fines of up to $112,500 per violation, and could lead to criminal prosecution (including imprisonment) or seizure of the illegal device.

The question is whether the FCC Enforcement Bureau, which has demonstrated increased activity across a wide spectrum of violations over the last couple of years, would see a need to take action to preclude a spate of similar state laws. The Bureau has not hesitated to send warning letters to and impose fines on individuals and entities violating the jamming regulations. See “Recent Enforcement Actions” at https://www.fcc.gov/general/jammer-enforcement. It will be interesting to see if the FCC steps in.

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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FAA Punts on the Preemption Issue in Part 107

Part Two in a Series on Federal Preemption – Mark Del Bianco, Special Counsel to Antonelli Law

FAA Punts on the Preemption Issue in Part 107

The FAA’s recent announcement of Part 107, the final rule for commercial small unmanned aircraft systems (SUAS or drones), has justifiably received a lot of publicity and general praise.  There has been little comment on what the rule does, or rather does not do, on the issue of federal preemption of state and local drone regulations.

Federal preemption is what’s referred to in political circles as a “third rail” issue. Like the electrified third rail on a subway system, you don’t touch it unless you absolutely have to, and it can shock and hurt whatever or whoever touches it.  For that reason, it was not surprising that the FAA’s 2015 SUAS NPRM did not mention preemption.  Nonetheless, during the rulemaking proceeding the FAA received a number of comments on federal preemption. Most contended that without a preemption provision, state and local governments would continue to attempt to regulate small UAS operations, resulting in potentially conflicting rules and hampering the industry’s development. They argued that conflicting rules lead to confusion and litigation costs, burden commercial and hobbyist UAS users, and delay the adoption of UAS technology. Under the federal Administrative Procedure Act, the FAA had a duty to review the preemption comments and make at least some response showing that it had considered the arguments made by commenters.

What did the FAA do? It punted, concluding “that specific regulatory text addressing preemption is not required in the final rule.”  It went on to state that

Preemption issues involving small UAS necessitate a case-specific analysis that is not appropriate in a rule of general applicability. Additionally, certain legal aspects concerning small UAS use may be best addressed at the State or local level. For example, State law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS. On December 17, 2015, the FAA . . . issued a Fact Sheet on State and Local Regulation of Unmanned Aircraft Systems (UAS). The Fact Sheet is intended to serve as a guide for State and local governments as they respond to the increased use of UAS in the national airspace. It summarizes well-established legal principles as to the Federal responsibility for regulating the operation or flight of aircraft, which includes, as a matter of law, UAS. . . . The Fact Sheet provides examples of State and local laws affecting UAS for which consultation with the FAA is recommended and those that are likely to fall within State and local government authority. For example, consultation with FAA is recommended when State or local governments enact operational UAS restrictions on flight altitude, flight paths; operational bans; or any regulation of the navigable airspace. The Fact Sheet also notes that laws traditionally related to State and local police power—including land use, zoning, privacy, trespass, and law enforcement operations—generally are not subject to Federal regulation. . . .

The upshot of the FAA’s punt is that – unless Congress steps in – the next few years will see a continued proliferation of state and local anti-drone laws.  Many of these laws will conflict with federal law (including Part 107) and some will infringe Constitutional protections, but there will be few court challenges initially. Why is that? Because at first those most affected by restrictive local laws will be hobbyists and small businesses, who generally don’t have the financial resources to fund litigation. Legal challenges will eventually be brought as larger drones come into use and the operations of Fortune 1000 companies – think utilities, engineering firms and large services companies – are affected. They will have the incentives and the necessary deep pockets to fund litigation. But challenging the numerous state and local laws in effect by that time will be the equivalent of legal whack-a-mole.

It may be time for Congress to clarify the scope of federal preemption in the drone space.  There have been attempts to do that in various versions of the FAA reauthorization act bills now pending in the House and Senate.  Stay tuned for updates on the progress of that battle.

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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