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.