We wrote previously about the growing threat that a “crazy quilt” of state and local UAS regulations will interfere with the creation of a safe and predictable federal regulatory system. A number of influential groups with a strong interest in UAS issues, including the Motion Picture Association of America, Textron, and Rockwell Collins, have asked the FAA to do something about it. On October 10, 2014, a letter was sent to Administrator Huerta, asking that the long awaited small UAS regulations, expected at the end of this year, include a specific provision expressly preempting any state or local law relating to the “design, sale, distribution, use or operation of small unmanned aircraft systems.”
In the past, when questions have arisen about whether a given state or local law impermissibly interferes with some part of the Federal Aviation Regulations, it has resulted in litigation. While these suits eventually settle the question of whether a given local law is preempted by federal law, the time and effort involved is substantial. Moreover, in some cases, the issue can be in doubt for more than a decade, and still not be resolved.
For example, in Abdullah v. American Airlines, 181 F.3d 363, 367 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit held that state common law tort standards that would require an air carrier to do anything beyond what is required in an applicable Federal Aviation Regulation are preempted. Over the past 15 years, that ruling has percolated through the federal courts, with several circuits agreeing and several disagreeing. No doubt the United States Supreme Court will resolve the dispute at some point in the future. Until then, the question of whether the standards in the Federal Aviation Regulations are a floor, or a ceiling, will depend on where you sue.
We welcome action by Administrator Huerta on this proposal. A uniform federal system would halt the uncertainty that is creeping into UAS regulations. Left unchecked, this uncertainty will give rise to unnecessary disputes, as well as the needless waste of time and money to resolve them.
In addition, including this language in the draft UAS regulations will provide an opportunity for the public, and the states, to be involved in the policy debate in a meaningful way through the notice and comment process. If people have an opportunity to be heard, they are more likely to respect the validity of a rule, even if they do not agree with its content. In this way, a consensus can be reached on whether it is in the best interests of the nation to have a uniform regulation or rely on a system of state and local law supplementing the FAA’s regulations. We sincerely hope it is the former.
(Originally posted October 14, 2014)