Senate bill would offer guidance on drones

This summer, when unwelcome drones disrupt backyard barbeques or fly over crowded beaches, local law-enforcement officers in most communities won’t be able to offer much help.

Even though millions of Americans now own drones, most states and municipalities still haven’t enacted laws to govern conflicts between drone operators and landowners.

The primary cause of their delay has been the FAA’s repeated insistence that it has near-exclusive drone regulatory authority and can preempt most state and local drone restrictions. That aggressive position has left communities with few protections, because the Federal Aviation Administration lacks the resources necessary to effectively govern most local drone disputes on its own. Good luck getting an FAA official to show up at your weekend barbeque and scare the drone away.

Fortunately, a bipartisan bill introduced in the Senate would provide guidance regarding the scope of the FAA’s authority to regulate civilian drones. If enacted, the Drone Federalism Act would help to resolve a longstanding dispute between the FAA and the states by making clear that the agency is not empowered to preempt all state and local restrictions on low-altitude drone flying.

The federal government already has well-established authority to govern certain aspects of the civilian drone industry. For instance, the FAA is clearly empowered to regulate drones to the extent necessary to ensure the safety of manned flight and to protect the borders, military installations, critical infrastructure and other important national interests. The federal government also has authority to develop and enforce uniform nationwide drone manufacturing standards and drone identification and tracking systems.

Unfortunately, the FAA has sought in recent years to extend its regulatory jurisdiction into some inherently local aspects of drone activity. For instance, in a fact sheet issued in 2015, the FAA suggested that it could authorize private parties to fly drones even in places where a city’s ordinances had specifically prohibited them.

Aspiring drone-delivery companies such as Amazon could benefit from such preemption, after receiving a single FAA authorization. But such an approach would also preclude states and municipalities from using their firsthand knowledge to tailor drone laws to fit the distinct preferences and characteristics of their own jurisdictions.

The Drone Federalism Act would end much of the FAA preemption controversy. The bill’s language prohibits the FAA and other federal agencies from preempting most state and local restrictions on civilian drone activities, meaning that states and cities could more freely restrict the time, place, and manner of drone operations on their own.

The bill also contains provisions that would encourage more collaboration and coordination between states, municipalities and the FAA in the development of civilian drone policies.

Like most legislation, the Drone Federalism Act is far from perfect. Its greatest shortcoming is that it only confronts landowner-rights issues for drones flying in airspace less than 200 feet above the ground.

By declining to address these issues all the way up to the general “navigable airspace” line of 500 feet above ground level, the bill leaves considerable ambiguity regarding property rights between 200 and 500 feet.

Courts adjudicating these issues within that layer of airspace would have to continue making fact-specific inquiries into whether particular drone activities might “interfere with the enjoyment or use of the property” below — questions that are inherently difficult to answer.

Still, the legislation does simplify drone laws in much of the airspace above land and would unquestionably be a victory for cities, states and landowners, as well as for facilitating the growth of the drone industry.

Sponsored by two Democrats and two Republicans, the Drone Federalism Act presents a much-needed opportunity for Congress to unite behind a worthy cause. Countless innovators throughout the country are eager to integrate drone technologies into their business models, and this bill would do much to propel that effort upward.

By enacting this bill, Congress would simultaneously clarify property interests, affirm state rights and foster the continued expansion of a fledgling industry for decades to come.

Troy Rule is a professor at Arizona State University’s Sandra Day O’Connor College of Law. Email him at trule@asu.edu.