A Change Afoot??

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Over the past six years, there has been growing support in Congress for stripping the Federal Aviation Administration of some of its authority over the lower levels of the national airspace system.  For example, the FAA Reauthorization Act of 2018 mandated several studies of FAA preemption and the proper role of state, local, and tribal governments in regulating airspace use.  Given this background, the latest move by Senator Mike Lee of Utah is worth watching.

Senator Lee has introduced a bill, captioned the “Drone Integration and Zoning Act,” that would give local governments increased power over “zoning” decisions that affect airspace use.  The act would apply to the “immediate reaches” of the airspace, which it defines as an altitude of 200’ and below.

The act would change the definition of “navigable airspace” in 49 USC 40102(32) to specifically exclude UAS operating below 200’.  It then directs the FAA to conduct a new rulemaking to define “navigable airspace” for UAS, in consultation “with appropriate state, local and tribal officials.”  The legislation requires the FAA to define the airspace between 200’ and 400’ as suitable for use by commercial operators and hobbyists in the rulemaking.  The FAA is given one year to perform the full rulemaking.  The act also makes clear that it does not diminish federal preemption over manned aircraft in any way, or limit the FAA’s authority for regulating UAS operating above 400’.

The second half of the act provides the “sense of Congress” related to the limits of the commerce clause, the role of state and local governmental police powers, and the rights of landowners.  Based on that sense of Congress, the bill provides additional guidance to the FAA on its rulemaking for the airspace below 200’.  The FAA is directed not to authorize UAS operation below 200’ “above property without permission of the property owner.”  In addition the “Administrator shall ensure that the authority of a State, local, or Tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level is not preempted.”  The types of restrictions that are “reasonable” is quite broad, and include speed limits, prohibitions of operations over schools, parks, roadways, bridges, “or other public or private property,” restrictions based on time of day or day of the week, or any other restriction intended to protect public safety, personal privacy, property rights or to limit noise pollution.

The Act also requires the FAA, within 18 months after the act is passed, to “establish a process for the designation of routes as authorized commercial routes” for UAS, although no commercial route may be below 200’.  Operators would have to apply for the route with the FAA, and the FAA is required to “consult with and heavily weigh the views of the State, local or Tribal government that has jurisdiction over the area of operation.”  The statute permits the FAA to delegate the entire approval process to the appropriate State, local or Tribal government if they wish.

While the act does place some limits on local authority to stop commercial UAS operations, those limits are very thin.  The bill only prohibits a local law that is a “complete and total ban on overflights over the entirety of the airspace in their jurisdiction” and also makes it “nearly impossible for civil unmanned aircraft to reach navigable airspace.”

The proposed law also creates a new system for regulating commercial UAS package delivery below 200’.  The law would remove all federal regulation of UAS for package delivery where the carrier is operating solely in intrastate commerce below 200’ and turn all such authorizations over to the states.  The bill would also give local governments a say in the design and operation of the future unmanned traffic management system.

Senator Lee explained the move in a press release as follows:

The FAA cannot feasibly or efficiently oversee millions of drones in every locality throughout the country,” Sen. Lee said. “Further, its current legal position claiming regulatory authority over every cubic inch of air in the United States – including air just inches above Americans’ private property – is both unsustainable and unlawful. In our constitutional system, the states have sovereign police powers to govern over inherently local issues, including the protection of property, land use, privacy, trespass, and law enforcement. The best way to ensure public safety, protect property rights, and unleash drone innovation is to empower the people closest to the ground to make local decisions in real time, which is exactly what the Drone Integration and Zoning Act does.

This bill represents the widest and most comprehensive effort to strip the FAA of its authority over the lower levels of the airspace and inject State, local and tribal governments into the regulation of aviation.  The law would seem to approve of virtually any restriction of operations, short of an outright ban.

Given the current precarious balance in Congress, it will be interesting to see who joins in pushing this bill.  One thing, however, is certain: if the law passes, there is no way the FAA could conduct an extremely contentious rulemaking of this magnitude, after fully consulting with “all appropriate State, local, and Tribal leaders,” in one year.

As always, we will keep you informed as matters develop.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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