States continue to pass laws in conflict with FAA’s authority

By UAS Magazine Staff | September 17, 2015

At least 30 states have now passed laws dealing with the regulation of unmanned aerial systems (UAS). That’s not necessarily a positive development, said Sarah Nilsson, a pilot and an assistant professor of aviation law and regulations at the Embry-Riddle Aeronautical University College of Aviation in Prescott, Arizona.

Nilsson publishes a white paper about UAS law, policy and regulation on her website that she frequently updates as states pass UAS-related legislation or as new legal and regulatory developments occur. She said that states—impatient for the U.S. Federal Aviation Administration (FAA) to implement UAS regulations—are taking matters into their own hands, sometimes passing laws in direct conflict with the agency.

“Essentially, the states may run into an issue where they’re passing laws in airspace over which they have no jurisdiction,” Nilsson explained. “That’s the primary issue that I see right now. Until the FAA comes out with its small UAS rule, there’s a void that states have taken it upon themselves to fill by implementing their own laws.”

While many states have passed legislation supporting UAS development, California’s Senate bill 142 has been criticized for doing the opposite, drawing fire from Brian Wynne, president and CEO of the Association for Unmanned Systems International and Gary Shapiro, president and CEO of the Consumer Electronics Association.

The organizations agree that the privacy issue should be addressed, but they said the bill took the wrong approach and labeled it an “unnecessary, innovation-stifling and job-killing proposal.”

The two organizations also noted that the “Supreme Court long ago ruled that property rights do not extend infinitely into the sky. In other words, only the Federal Aviation Administration (FAA) can regulate airspace; states and municipalities cannot.”

This highlights the problem Nilsson emphasized in her paper of state’s infringing upon the FAA’s jurisdiction. Texas, for example, passed legislation making it illegal for anyone to operate a UAS over critical infrastructure below 400 feet. But FAA regulations say UAS can’t operate above 400 feet.

“We need to remember that based on the 1958 Federal Aviation Act, the FAA has sole jurisdiction over the national airspace,” Nilsson said. “When state and federal law conflict, federal law preempts state law.”

Another problem she’s identified with state laws is a tendency to lump all UAS under one blanket category.

“They don’t break it down like the FAA does where certain rules apply to civilian use, certain rules apply to model use and certain rules apply to public use,” Nilsson said. “These definitions themselves have lots of holes in them.”

Nilsson said there are areas such as hunting and privacy—which isn’t in the FAA’s jurisdiction to regulate—where it makes sense for states to enact their own UAS laws. In addition, she noted that state and local governments have the authority to limit the aeronautical activities of their own departments and institutions.

However, Nilsson said it’s inevitable that many state laws will be appealed to higher courts where legal precedents will be established. She writes in her paper that more than 50 companies, universities and government organizations are developing and producing around 155 unmanned aircraft designs, meaning that the FAA has “a critical, if not daunting, task” ahead of it to formulate laws governing UAS.

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Legal List: State Laws Vs FAA Regulations
Legal experts like Nisson that are tracking the rules, regulations and laws related to UAS at the state-level, often point to the same reminders about the issue of UAS state-based laws versus federal regulations issued by the FAA.

-UAS laws already exist in 30 states, and the number is expected to rise.

-Privacy concerns in California have given way to a controversial bill.

-Conflicting regulations between states and FAA are highlighting the power of states and the Federal government.

-Federal law preempts state law, but that hasn’t stopped states like Texas issuing laws that counteract the FAA’s established rules.

-State laws lack clarity on which type of unmanned aircraft vehicles (hobbyist or commercial) are under regulation.

-More than 50 companies are building, selling or planning more than 155 UAS platforms. It will be daunting for the FAA to keep track of this number of UAVs in the sky.