UAS: Hasn’t Anyone Heard of Preemption?

As the FAA works towards the issuance of a rulemaking, we see a number of state legislatures starting to step in and fill the void, or, at least, the void which they perceive exists.  According to a recent AP article, citing the National Conference of State Legislatures, bills regulating UASs were introduced in 40 states in 2013.  Thirteen of them became law. www.startribune.com/politics/national/253559731.html

As anyone with even a passing interest in the UAS area knows, there are a number of interests in play in this area, including privacy, safety and security.  Every one of the many interests has a constituency.

The apparent trend towards state legislatures taking action in this area will likely increase and, almost certainly, will result in conflicting and inconsistent results.  One state, Washington, already had their UAS legislation vetoed since the Governor felt that it would be impossible to comply with the provisions of the bill. http://www.law360.com/aerospace/articles/525618?nl_pk=a099d4f8-8d4b-40e7-ab2a-f11a8b3ab534&utm_source=newsletter&utm_medium=email&utm_campaign=aerospace

For whatever reason, some or all of the legislatures taking action in the UAS area have failed to recognize or acknowledge that control of the navigable airspace resides with the Federal Government, specifically the FAA. Any state legislation which purports to regulate UASs in that airspace is likely to find itself being challenged by the Department of Justice.

UASs are aircraft and the navigable airspace doesn’t observe state boundaries.  State legislators should step back from what they’re doing and recognize the realities of the situation.

Moreover, the FAA should recognize that the longer they wait to step in and fill the regulatory void, the more untangling will have to be done.

This is a situation where the absence of haste on the part of the FAA, is virtually guaranteed to make waste.

(Originally posted April 11, 2014)

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