Drones – The Looming Battle of Preemption

The long-standing issue of federal preemption in the immigration context has found a new corollary in the battle over how states, counties, and municipalities are dealing with the rise in drone use.  As drone use continues to increase, states and municipalities are trying to determine whether their broad police powers are sufficient to regulate drones, and how such regulations might be affected by the regulatory authority of the federal Federal Aviation Administration (“FAA”).  The FAA, which is part of the Department of Transportation, is responsible for the safety of civil aviation, and drone use has fallen under its regulatory authority.  With the proliferation of recreational drone use and the likelihood that commercial drone use will only expand, does the FAA’s regulatory authority preempt local regulation?  This question is unsettled and will inevitably be dealt with in the years to come.

Around twenty states have already adopted laws regulating the use of drones.  According to the National Conference of State Legislatures, in 2014, 35 states considered UAS or drone-related bills and resolutions, and 10 states enacted new laws.  Much of the new legislation is focused on privacy issues, especially as it relates to law enforcement’s use of drones.  How the FAA intends to deal with the myriad of new state and local regulations remains to be seen.  The FAA has the broad regulatory mandate to regulate drone operations.  Indeed, the FAA is supposed to issue a regulatory framework for drone use by September 2015, but will likely miss this deadline due to the technical and regulatory obstacles that must be resolved before any such regulatory framework can be implemented nationwide.  Some have commented that the FAA faces so many hurdles that it is unclear whether drones can be integrated into civilian airspace.  One of the primary concerns is safety.  According to a Washington Post article from this summer, “drones rely on GPS signals to navigate and are controlled by pilots or operators on the ground via a two-way radio transmission link. But those links are not completely reliable, and it is common for operators to lose control of a drone for seconds or minutes at a time.  With no pilot in the cockpit, drones also lack the technology to see and avoid other aircraft, raising the risk of a midair collision. The inspector general called that problem the ‘most pressing technical challenge to integration.'”

Until the FAA acts, there is no question that state and local governments will continue to use their broad police powers to control drone use.  Until the FAA finally puts in place a regulatory framework, undoubtedly, questions about whether federal law will trump local regulations will persist.  Unfortunately, drone manufacturers, operators, and commercial entities seeking to employ drones will continue to lack unified guidance on what they can and cannot do.  The patchwork of state, county, and local regulations will persist until the FAA provides the necessary regulatory framework to allow drone use to expand.

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