Statutory & Case Law on federal aviation preemption
By Henry H. Perritt Jr.
WASHINGTON D.C. (Texas Insider Report) On 17 December 2015 the FAA issued its first public statement on
federal preemption of state and local drone regulation. It makes clear that
most state and local drone registration requirements are preempted and that regulations imposing drone operator (DROP") qualification requirements vehicle design requirements
and operating rules are likely preempted as well.
A fact sheet issued by the FAA Chief Counsel reviews statutory and case law on federal aviation preemption and includes an appendix citing specific Supreme Court and court of appeals cases.
No state or local government may impose an additional registration requirement...."
It offers examples of state and municipal regulations that are preempted: A city ordinance banning anyone from operating UAS within city limits... or within certain distances of landmarks."
This section of the fact sheet however invites consultation with the FAA suggesting some flexibility. It summarizes the limited preemption exception for traditional state and local regulation of facilities owned by units of state or local government and for traditional matters of state concern such as prohibitions against voyeurism requirements for warrants to authorize police use hunting regulations and prohibitions against attaching weapons to drones.
The fact sheet expresses concern that state and local regulation of drones is proliferating and that the contents of such proposals often are poorly thought out and do not reflect an understanding of well-established principles of federal
preemption. It encourages state and local decision-makers to consult with the FAA before adopting drone regulations.
The statement is a welcome step by the FAA to forestall what it called a patchwork of inconsistent regulation. It will benefit news organizations who are trying to figure out how to navigate around FAA limitations in section 333 exemptions only to be confronted by more restrictive municipal or state proposals.
While it may be controversial its analysis reflects mainstream legal doctrine. Before the relationship among federal state and local regulation of drones is settled litigation is likely; the FAA Chief Counsel is not the final authority on constitutional federal-state relations. Nevertheless the statement serves as a shot across the bow of state and municipal legislators who are in a rush to respond to overblown and ill-informed public concerns. It also should provide important guidance to state and federal courts confronted with challenges to state or municipal regulation.
Timidity is not a virtue moving forward. Journalists must be willing to take the risks of challenging drone restrictions now that they are armed with an FAA pronouncement.
FAAs new drone registration rule paves way to next steps
On December 14 2015 the FAA issued an interim final rule (IFR) requiring the
operators of all drones weighing more than half-a-pound to register them with the FAA before flying them outdoors.
Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident... and also provides an immediate and direct opportunity for the agency to educate UAS owners on safety requirements before they begin operating" the FAA said in its summary of the new rules.
The motivation for moving quickly to impose a registration requirement was the FAAs expectation that some 1.6 million drones intended to be used as model aircraft would be sold in 2015 with half of that number sold in the fourth quarter. It expects another 600000 to be sold to commercial operators once its February-2015 proposed rule is finalized sometime in 2016.
The IFR imposes different requirements for recreational and hobbyist drones which the FAA calls small unmanned aircraft used as model aircraft and for commercial users. Hobbyist and recreational users must provide only basic information: name address and email address and user registration covers an unlimited number of drones operated by that user.
Commercial users must provide information about aircraft serial number manufacturer as well as the basic information required of model drone users. Each commercial drone must be registered and will receive a unique registration number. The new registration site for recreational operators will have a single profile that contains all of their aircraft each of which will have a unique registration number. Both categories of users must display the registration number on the drone. Drones flown only indoors need not be registered.
Recreational and hobbyist operators of drones that have never been flown must register through the new system after December 21 before flying any drone. Operators of hobbyist and recreational drones that were operated before December 21 must register no later than February 19 2016. Commercial operators must register their vehicles either under the traditional paper-based system or under the new system after March 31 2016.
The preamble to the IFR and accompanying frequently asked questions (FAQs) explain the registration requirements in terms that can be understood by unsophisticated casual purchasers explaining drone purchasers can determine whether a new drone must be registered by comparing its weight to that of two sticks of butter.
The IFR adopts a user self-registration system rather than point-of-sale registration preferred by many commenters. Several commenters argued that a point-of-sale registration system would have greater integrity because no drone could be sold without the vendors registering it. But the retail industry vigorously opposed such an approach asserting that existing point-of-sale systems are not capable of acquiring the additional information necessary for registration and questioning the FAAs authority to impose such a requirement.
The IFR essentially embraces the approach to impose a self-registration requirement immediately with a gradual evolution toward point-of-sale registration. The agency encourages innovation in point-of-sale registration as it may provide the agency with a means by which to receive information regarding small unmanned aircraft in a seamless
fashion and promised to work with retailers and manufacturers to facilitate development of such systems.
The FAA recognizes the compliance with the new registration requirement will be uneven. It also recognizes that a registration requirement alone is an incomplete solution for deterring irresponsible or malicious drone use. Adherence to safe practices depends ultimately on the effectiveness of an intensified public education program. Nevertheless requiring a drone to be registered and numbered will assist state and local law-enforcement and FAA inspectors to trace drones back to their owners when mishaps occur.
The registration rule is a boon for newsgathering helicopter and drone operators. It is an initial first step to gain control over the thousands of hobbyist flying outside the social control model aircraft clubs and the commercial operators who ignore FAA rules for safe flight thereby jeopardizing aerial newsgathering operations.
It also is a boon for operators of newsgathering drones who have section 333 exemptions authorizing them to fly commercially because it gives them an alternative to the archaic paper-based registration process which requires use of a multipart carbon paper form. The present system also requires completion and submission of a notarized affidavit of ownership and sales receipt or transfer of title. The FAAs discussion recognizes that its traditional paper-based system is too onerous for small unmanned aircraft owners and the FAA. The new system permits exemption holders to register new vehicles online.
An interim final rule under federal administrative law is an agency rule that takes effect immediately but also invites comments with the expectation that it may be modified in a relatively short timeframe.
Henry Perritt Jr. is a law professor and former dean at Chicago-Kent College of Law. He has written and co-written several articles about the potential use of drones in news-gathering and co-owns Modovolate Aviation LLC which was formed to conduct drone research experimentation demonstration & education.
