FAA Efforts Aim to Reduce Drone Jurisdictional Disputes

November 19, 2019Articles Law360

The Federal Aviation Administration and local governments continue to vie for control of the airspace being used by drones. This tension is only going to intensify as we approach the year's end and enter 2020.

The FAA has been working hard to put new rules in place to permit drones to fly directly over large concentrations of people. The main holdup has been the creation of the so-called remote identification rules that will allow for detection and identification of unmanned aircraft no matter where they fly. After more than a year of delay, the FAA is slated to release the remote ID rules for public comment in December.

Once this regulatory foundation is laid, the public will see unmanned aircraft systems, or UAS, flying in places they are not accustomed seeing them, including directly over them while they are in crowded public spaces. This will no doubt prompt a new round of complaints by constituents to their local representatives, which will put added pressure on them to try to control the airspace in their jurisdictions.

In July, a legal group that drafts bills for state legislatures was forced to put off — for the second year in a row — a vote on legislation modeled to help state legislatures regulate drone flights over private property. Members of the Uniform Law Commission, or ULC, had traveled all the way to Anchorage, Alaska, for their 128th annual meeting. Amid vigorous disagreements over the so-called Uniform Tort Law Relating to Drones Act, they went home without a resolution.

Meanwhile, confusion and conflict continue to surround efforts to regulate drones at the municipal level. As noted by The Chicago Sun-Times in a report published in July, drone pilots in the Windy City are complaining of a vexing problem: local police summarily shutting down drone flights based on what appear to be overly broad interpretations of Chicago’s UAS law.

And New York City real estate developers are battling a 71-year-old statute that appears to prevent pilots from flying UAS within most of the Big Apple. As noted by The Wall Street Journal, the statute restricts takeoffs and landings of aircraft (including, by definition, FAA-regulated UAS) to Port Authority-designated airports or other facilities. Since the FAA generally disallows drones at airports, developers believe they are barred from making those dramatic UAS flyover videos of their properties.

Local and state laws on drones are widespread, but so, too, is confusion and disagreement over federal and state jurisdiction, how trespass should be defined and other issues. According to the National Conference of State Legislatures, during the 2017 legislative session (the latest for which compiled statistics are available from the NCSL), at least 38 states had considered such UAS-related laws.

Plenty of cities and towns have also stepped in to regulate UAS. As noted by the Center for the Study of the Drone, located at Bard College in Annandale-on-Hudson, New York, as of March 2017 at least 135 localities in 31 states had passed drone rules in one form or another.

“The most common local restrictions include prohibitions against flying drones over public and private property without the property owner’s consent,” the center notes. “A number of these rules may contravene federal authority, and could result in legal conflict.”

Indeed, the FAA continues to control U.S. national airspace with near-total authority, which is a big part of why American aviation has such a remarkable safety record. However, UAS operators (especially hobbyists) need to understand that private citizens do enjoy some rights with respect to the low-level airspace immediately above their properties (these rights go all the way back to a landmark U.S. Supreme Court ruling in 1946).

Land and zoning decisions are also an integral part of state and local lawmaking. As a result, these governments certainly can legislate where drones are permitted to take off or land within their jurisdictions. They can also pass laws related to other matters that stand to be affected by drone operations, such as privacy, trespassing or emergency operations.

Ideally, these distinctions would be easy for all police officers, lawmakers and pilots to grasp. In reality, some stakeholders struggle on this front. The case of Singer v. Newton is one graphic illustration of this.

In the town of Newton, Massachusetts, local officials passed an ordinance that banned drone flights over private property below 400 feet without the property owner’s permission. However, federal law had already established a 400-foot altitude maximum for drones. In Singer’s view, the local law functioned as an unlawful regulation of FAA-controlled airspace. In September 2017, the U.S. District Court for the District of Massachusetts ruled in Singer’s favor.

Ongoing Efforts to Provide More Clarity

Experts are working hard to chart a path to greater clarity on these issues. Their efforts, though, illustrate just how challenging it can be to find solutions.

A couple of years ago, the ULC rang alarm bells among FAA officials and the UAS sector when it first discussed the aforementioned Uniform Tort Law for drones. In most states today, trespassing onto another’s land carries a presumption of injury and a right to sue. The ULC’s initial draft law would have made UAS encroachment over another’s land a form of trespass that conveyed a presumption of damages, so long as the altitude of the flight was 200 feet or below.

But the measure’s introduction of an altitude limit, from the perspective of the FAA, amounted to illegal interference in the FAA-controlled national airspace. If enacted by a state, it would have triggered an immediate federal challenge.

That 200-foot altitude limit was removed from the new ULC draft debated in Anchorage. The new measure enumerated two forms of trespass a drone operator could commit: “aerial trespass” and “trespass to land.” If a drone touched upon a landowner’s property — by hitting a roof, let’s say, or dropping into a backyard swimming pool — the violation would be trespass to land.

However, the definition of aerial trespass proved to be contentious. The solution in the latest version of the act was to use the “totality of the circumstances” as a test. According to ULC’s website, the court could consider “factors such as the amount of time, the altitude, and the number of times the drone has been operated over the property” to determine if aerial trespass had occurred.

In Anchorage, property owner representatives argued for a one-or-zero definition of aerial trespass. The basic line of argument: “If your drone flies over my property, you have trespassed.” However, representatives of the UAS industry and others strongly supported the more nuanced “totality of the circumstances” approach. They wanted landowners to show substantial interference with the use and enjoyment of their properties before claiming aerial trespass.

The Next Steps

The UAS sector is bound to see more confusion and/or conflict over state and local drone laws until the aforementioned issues are resolved. In addition to the ULC, participants in the FAA’s Drone Advisory Committee Subcommittee and UAS Integration Pilot Program are among those working to find those solutions.

In the meantime, how should drone operators navigate the conflicts? At the risk of sounding glib, the answer is: very carefully.

The FAA in some cases has provided guidance to local and state governments on what they can and cannot regulate with respect to drones. Pilots should never assume it is okay to ignore a local or state law because “the FAA is the only authority here” or “FAA regulates the airspace from the ground up.” They need to study in detail any prevailing legislation, not just Part 107.

Likewise, common sense dictates that pilots should avoid engaging in behavior that could easily be construed as invasive or dangerous — piloting drones so that they soar over sunbathers, for example, or hover near office building windows with a clear view inside.

In a mischaracterization of the actual law, one Chicago officer reportedly told pilots, “You can’t fly anywhere in the city.” If confronted by a local cop who appears to be misinformed, the safest bet is to be respectful. One option is to politely ask the officer for permission to call your local FAA Flight Standards District Office representative for clarification. If your request is declined, go home and regroup. (My rule of thumb: Never argue with the party carrying a gun.)

Lastly, on an industry level, UAS stakeholders should consider lobbying to make remote identification and counter-UAS technology more accessible, because these tools stand to greatly improve the chances of all sides coming to a resolution. If threatening drones can be more easily stopped, or privacy-invading ones instantly identified, it will go a long way toward alleviating anxiety about UAS — and battles over jurisdiction.

Reprinted with permission from Law360(c) 2019 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.