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 Drone/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.