Category Archives: preemption

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.

Contact Antonelli Law

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

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.

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

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.

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

How to Evaluate a Drone Law Attorney in 5 Easy Steps *

How to Evaluate a Drone Law Attorney in 5 Easy Steps*

By Jeffrey Antonelli, Antonelli Law

I was recently given some free advice from someone who works with a legacy international company that is a household word. He is also a serial entrepreneur and he gave me some unsolicited, helpful advice.

He told me I should increase my Google ranking by having articles published (outside of this blog) with certain appropriate keywords – like drone lawyer, drone law, UAS – and sprinkle them throughout several times in the content so that search bots “feel” its right. Oh, and to have those articles link back to our law firm website at Antonelli-Law.com. 

I know he is right. That will probably work. During the Great Recession I accepted a dinner-with-a-catch function sponsored by American Family Insurance. That very nice dinner included some helpful hints to writing blog content. One of those pieces of advice was to include a number in the headline like 3 Ways to Catch Your Spouse Cheating, The Top Ten Hollywood Actors Who Have Gotten Fat, or How to Evaluate a Drone Law Attorney in 5 Easy Steps.

One of the things that motivates me personally, a core value if you will, is my authenticity. I have the freedom in my law practice to actually implement authenticity in my practice since it is my own firm. I require it and related behaviors including honesty in everyone I hire and associate with. It is even in the legal contract all my employees must sign to be a part of my firm.

Now that drone law is not new as it was in January 2014 when I launched our drone law practice (March 2014 PR here) there seems to be a lot more competition from other lawyers –  including some I have my doubts about. That is to be expected with something that is often in the news and thought of as a “hot” area like drones .  Some I don’t mind and they should be fine – I see some lawyers who are manned aviation pilots, and that makes sense for drones. But I see others who are clearly in it to make a buck only (my opinion) including copying the motivation that I and a certain much more famous drone lawyer who is no longer in private practice have had – flying RC planes – by using RC planes as props.

I think my passion for flying drones and rc planes and the really intriguing technology that brought me to drone law in 2013 including flight stabilization and fpv will continue to push me to keep learning and be on the cutting edge. I remember watching someone at my flying field with a multirotor perhaps in 2012. How was he controlling each of the motors at one time? That made me eventually learn about flight controllers and their inception at least for the hobby folks, using components from their game consoles and cell phones.

One of my former bosses, who had been a capital partner at a very large law firm, once told me that for lawyers to do a great job it often means putting in a real effort to dig deeply. This might mean checking more legal cases, taking another deposition, and cross-checking testimony from a number of different people. In drone law, I think it means continuing to delve deep into the regulations (proposed and final); maintaining and growing relationships with subject matter experts far and wide in aviation, government, law, and technology; and attending the substantive meetings at conferences where the real experts of technology are talking, not just the fun demonstrations of robots, selfies, and media opportunities.

But it also means going back to what got me started in this field – flying fixed wing rc airplanes. I will never do the incredible things my friend Kevin does here, but it is something I enjoy and it brings together friendship, sunny skies, and flying.

One of the things that drone law will be called upon to answer are the concerns about privacy. I don’t think many law firms throwing their hat into the “drone law” ring will have much to say about it. One thing that I think makes my drone law firm great is my co-counsel Mark Del Bianco. Mark holds the Certified Information Privacy Professional/US designation from the International Association of Privacy Professionals. Mark has been involved with the internet, cloud, telecommunications law and privacy for a long time.

Now that the FAA Reauthorization Act may be requiring  drone manufacturers to obtain software certification and other regulatory approvals, the industry is going to need serious guidance from seasoned, respected professionals. I am pleased to have Douglas Marshall with us. Doug is one of the very top UAS and aviation consultants in the country. He is currently chair of the ASTM F38.02.01 Task Group on Standards for Operations Over People, and serves as a United States delegate to ISO TC 20/SC 16, UAS Subcommittee. We are lucky to have him in our corner.

I think larger fixed-wing UAS is going to be a major area of development, and folks with just general aviation experience aren’t going to cut it.  Federal Express is expressing desire for unmanned cargo jets, and agriculture and energy infrastructure needs high endurance aircraft to survey hundreds – and possibly thousands – of miles of pipeline and towers. That means larger fixed wing, probably in the hundreds to thousands of pounds.  The experience of professional pilots like our Kate Fletcher are going to be the ones in the room that get paid attention to. In addition to being an attorney, Kate has well beyond 10,000 flight hours as a pilot for the world’s largest airline flying the 767, 757, and 737.

Our creative clients like iCam Copters and Richter Studios are tops in their field. It helps me embrace the creative side of myself. Unlike my amateur beginning efforts such as here here here and here, our clients are at the top of their game. Creative professionals need to protect their work with intellectual property including copyright and trademarks, and use appropriate forms for protection like NDAs, Non-Competes, and licensing agreements. Attorney Amelia Niemi is not only learning from me in drone law and assisting with Section 333 petitions, special COAs, and drone related business issues, but she significantly helps the firm when it comes to our IP work. She studied IP at DePaul College of Law’s Center for Intellectual Property which has always been highly ranked nationally. I could have used her help when I was responsible for all the legal work for my first client, an IT company that supported data centers across the US for large clients including Walgreens, Acxiom, and Sallie Mae. I had to learn about NDAs, SHARK drives, storage silos, and a lot of other technology on my own then. I am grateful to offer my clients a great deal more resources today than in 2007.

Like much in business, the drone space is highly competitive with manufacturers releasing new models and new features constantly. New players appear and large players disappear or reinvent themselves.

Sometimes pushing the boundary means finding yourself in trouble with governmental entities. Or having to sue a competitor because they broke the law in order to unfairly compete with you.  I am admitted to the federal trial bar of the Northern District of Illinois (and numerous other federal courts) and litigation was most of my practice until recently. When it comes to fighting in court, I rely on the assistance of my experienced federal litigation associate Melissa Brabender in addition to other resources including our local counsel. In business most people try to stay out of court and one of our jobs as lawyers is to help them do just that. But when it is inevitable, our experience shows we know how to fight. Other lawyers may never have conducted a single trial.  We are looking for great cases challenging local drone laws and other issues as they arise. Our team has deep experience and many years in law and aviation. Due diligence of your lawyer should be a part of your business plan just as checking out potential business partners should be.

Part 107 will be coming out soon. Will it have a new airman certification, a drone pilot license? A written test? Implementation soon or in 6 months? We will find out. When it is published, we will then know what drone law will become in its newest iteration. That is, until the FAA Reauthorization comes out. What will remain the same is my commitment to providing value, honesty, and professional competence to our clients. I could have done a lot of things in business or other fields, but being a lawyer I want to remain being a trusted confidant, zealous advocate, and terrific employer. I also enjoy putting clients together when the synergy is right.

If you have any questions, feel free to contact me at Jeffrey@Antonelli-Law.com or call our client concierge Olivia Fowler at 312-201-8310.

*It looks like I went over 5 steps in How to Evaluate a Drone Law Attorney in 5 Easy Steps. Hopefully I exceeded your expectations in more ways than just the title.

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

Your Help is Needed NOW to Protect UAS Industry in Congress

Your Help is Needed NOW to Protect UAS Industry in Congress

Congress is currently in that famous “sausage-making” stage of creating new laws regarding the commercial (and hobby) use of drones. Your help is needed to persuade our lawmakers to make good decisions that will help our industry thrive.

Please consider supporting the express federal preemption ban on local “drone laws” by clicking here:

Please also consider supporting Senator Inhofe’s amendment to protect the model aircraft hobby by clicking here.

Why Your Help Is Needed

While many of us have heard of federal preemption over states and local governments regarding airspace, some in Congress want to allow states and local governments the freedom to pass their own drone laws. Senator Dianne Feinestein (D CA) is an example.

While federal preemption is already in place for airspace, putting in an express preemption provision in the FAA Reauthorization Act could make quick(er) work to fight what has become a “whack-a-mole” of local drone laws popping up all over the country. Without a good case going up to the US Supreme Court fighting these local drone laws (and that takes YEARS and has much uncertainty) many local entities may be stubborn and try to keep their local drone laws on the books with local enforcement actions on the books.

Here is the Opportunity to Help

The US Senate 2016 FAA Reauthorization bill contains a provision called Section that expressly says the following:

“No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.”

Senator Feinestein has introduced a bill that “would preempt state and local laws relating to the operation of drones. These laws would be preempted even if FAA does not take action to address the growing problem of reckless drone use. According to the National Conference of State Legislatures, 26 states have enacted drone laws and 41 states have considered laws in the 2016 legislative session.”

The manned and unmanned airspace industry is fighting back. A group of ten industry groups including DJI, AOPA, and AUVSI have written a letter to all US Senators to “[oppose] Sen. Feinstein’s amendments #3558 and #3650 or any other amendment that would change or strike the federal preemption provision, section 2152, of the FAA Reauthorization Act and put safety at risk.

Contact your US representative and advise them on why these actions to support the UAS industry are needed, the jobs it will create, and the safety arguments against a patchwork of local drone laws across the land.

If you have any questions or would like our help in your efforts to lobby Congress, please contact us through the form below or call Jeffrey Antonelli at 312-201-8310.

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

FAA Fact Sheet on State and Local UAS Regulations: Prelude to Odysseus’ Revenge?

FAA Fact Sheet on State and Local UAS Regulations: Prelude to Odysseus’ Revenge?

While the FAA has been working on its small drone regulations, States and local authorities have been passing legislation purporting to regulate the operations of drones. In Greek mythology King Odysseus of Ithaca spends twenty years abroad, the first ten years conducting the Trojan War and the second ten years returning home – engaging in a variety of dalliances along the way, even passing through Hades. Upon his return, Odysseus is surprised to find how things had changed in his twenty year absence and learns of those who had been defying his authority. In one reading of the myth Odysseus exacts horrible revenge.  The FAA’s December 17, 2015 Fact Sheet entitled “State and Local Regulation of Unmanned Aircraft Systems (UAS)” may not be committing the murderous rampage of Odysseus, but it bears some resemblance because in it the FAA asserts its sole authority in most matters to regulate the national airspace rather than local and state authorities. The guiding principle here is federal preemption.

The Fact Sheet provides two types of state or local laws regulating UAVs for which “consultation with the FAA is recommended”: (1) operational restrictions on “flight altitude, flight paths; operational bans; any regulation of the navigable airspace;” and (2) mandating equipment or training for UAS related to aviation safety, which would likely be preempted. The Fact Sheet contains citations to federal case law indicating that the FAA is the boss, not state or local governments:

Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example –a city ordinance banning anyone from operating UAS within the city limits, within the air space of the city , or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). (Emphasis added).

States and local authorities who have attempted to pass legislation that fall into the first category have widely been criticized. In September 2015, California Governor Jerry Brown vetoed SB 142, which would have banned UAV flights below 350 feet AGL over private property due to concerns over burdensome litigation and new causes of action. Chicago Mayor Rahm Emmanuel, unfortunately, has not taken similar steps regarding the recently-passed Chicago Drone Ordinance. Without the Mayor’s veto (unlikely at this point, especially given the political pressures he and the city are currently facing), the Ordinance will ban all hobby or recreational operations within the city unless the property owner has given permission for the flight. In addition, flights over school yards – and all flights flown by first person view (FPV) goggles are banned– even with tiny drones that fit in the palm of your hand. Such laws have been widely criticized because of the real potential to stifle the nascent drone industry and may be particularly punitive, especially for operators from out of state who may have difficulty navigating these varying state and local laws.

Having a federal authority, rather than a mishmash of state and local jurisdictions, issue standard requirements makes sense. The importance of having a single agency oversee the national airspace cannot be understated. In his excellent legal history of aviation, Who Owns the Sky author Stuart Banner traces the debates which took place a hundred years ago in the first Golden Age of Aviation regarding authority to legislate airspace. Prior to the creation of a new federal aviation agency, questions were raised as to pilots’ having to know the various states’ laws as they crossed state boundaries. Serious suggestions were made to institute having high-flying balloons alerting  airplane pilots of the state line boundaries. How else to know where each state’s jurisdiction ended and another state’s began? Each state’s regulation of flight differed from the next.

In the Fact Sheet, the FAA states:

“Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.” (Page 2, emphasis added)

States and local municipalities may be well-meaning, attempting to pass legislation to quell reasonable (and sometimes unreasonable) citizens’ concerns and to protect the public against unsafe operators. The FAA acknowledges that states and local authorities may pass laws “traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations.” But having a standardized, federal set of rules to follow is a very important and achievable goal. Even though the FAA has yet to make any real progress into filling the void, its recent Fact Sheet is a reminder to state and local legislative bodies that they should not attempt to do so.

 

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.

Your Name (required)

Your Email (required)

Subject

Your Message

captcha

Virgina Drone Laws – Preempted?

Recently the Virginia General Assembly passed a number of bills related to privacy and new technology. Among the bills is one requiring police to obtain a warrant before using a drone for surveillance. As technology increases and privacy has the potential to decrease, it is telling that the Virginia General Assembly realizes this danger and enacted legislation to restrict drone use by government agencies.

The legislation could have far reaching effects as the Federal Aviation Administration (FAA) considers new regulations. There is more to the Virginia legislation than just protecting privacy, however. It gives certain local governments the power to restrict anyone, including hobbyists, from flying drones, regardless of the weight. This could create huge issues in the future when the FAA allows drone use by commercial operators. Currently the FAA allows hobbyists to fly drones that weigh less than 55 lbs provided they follow safety guidelines. Would the local government ban on drones apply to commercial operators that the FAA has specifically allowed to fly? Would the local law be pre-empted by federal law? We think, yes, the local laws will be preempted by Federal law.

Preemption, by virtue of the Supremacy Clause of the U.S. Constitution, states that when activities are considered more national than local in character then the federal laws related to them preempt, or take precedence, over state laws. To the extent the Virginia law purports to outlaw conduct that Congress or a federal agency with subject matter jurisdiction, here the FAA, has specifically held is or should be legal, there is conflict preemption and the state law is invalid. We expect a challenge to the Virginia state law restricting drone use sooner rather than later, but certainly when the FAA approves the proposed regulations. Further, if the FAA grants a Section 333 exemption to a Virginia operator, that law may get challenged soon.

One of the Antonelli Law Firm’s attorneys lives (and is licensed) in Virginia and is keenly watching the legislation and the associated privacy concerns. While privacy does need to be protected, it seems there are better ways to protect it than a blanket law restricting all drone use. As far back as 2011, privacy concerns were in the news as Texas police used drones in high risk operations. The ACLU had comments then stating they did not disapprove of drones, absolutely. They went on to say that they object to the pervasive use of drone surveillance on the general public. There are many good uses for drones including searching for missing persons and even high risk police operations.   These activities do need to be tempered with privacy protections. However, local laws cannot and should not be those protections.

Something to watch especially for our Virginia residents and clients.

Today guest blog was written by attorney and airline pilot Kate Fletcher who is of counsel to Antonelli Law’s Drone/UAS Practice group. Kate’s aviation experience, along with special counsel Mark Del Bianco’s federal rulemaking and privacy issues experience, greatly add to the firm’s capabilities.

If you would like more information or would like to speak with the firm’s Principal Jeffrey Antonelli call us at 312-201-8310 or use the contact form below.

Your Name (required)

Your Email (required)

Subject

Your Message

Enter the code below.
captcha