Hobbyists May Have Shot Themselves In the Foot

State and local governments have not been shy about attempting to regulate drone use.  So far in 2015, 45 states have considered 153 bills related to drones.  As these laws proliferate, it is only a matter of time before UAS operators who are caught up in this patchwork of state laws will begin to challenge them.  One of the most obvious avenues of attack is federal preemption.  Courts will have to determine the boundaries of the FAA’s authority, and what issues are left for the states to control.  Earlier this week, the Commonwealth of Virginia provided a preview of how those issues may develop.

On July 13, 2015, the Virginia Attorney General issued a memorandum addressing the question of “whether the Commonwealth or its localities may regulate the use of drones, or whether such actions are preempted by federal law.”  The answer, not surprisingly, is “it depends.”

The Attorney General began his analysis by noting that the federal government has asserted exclusive sovereignty over the airspace of the United States.  In addition, the Federal Aviation Act grants the FAA broad authority to regulate “air safety, the operation of aircraft, and the use of navigable airspace (i.e. airspace management).”  As a result, the Federal Aviation Act has consistently been held to preempt “the entire field of aviation safety,” as well as aircraft operation and airspace management.  The Virginia Attorney General also concluded that, based on the ruling in the Pirker decision as well as the plain language of the FAA Modernization and Reform Act of 2012, it is beyond dispute that UAS are aircraft.  As a result, it is clear that “Congress intends to occupy the fields of drone safety, operation, and airspace management – including specific standards governing drone certification and the training and licensing of pilots.”

So, what does that leave for the states?  According to the Opinion, privacy, property rights and model aircraft.  The first is not surprising.  The FAA has repeatedly stated that it has neither the inclination nor the expertise to regulate privacy.  With regard to property rights, the Attorney General recognizes the exclusive sovereignty of the United States over the airspace, but also notes that the Supreme Court has previously held that land owners have a right to the use of the “immediate reaches” or “superadjacent airspace” over the land.  The Attorney General does not, however, attempt to define an altitude at which the state’s ability to regulate ends.

The Opinion’s position regarding hobbyists may have the greatest impact on UAS use.  The Attorney General argues that the explicit carve-out for model aircraft in the 2012 Reform Act should be read as an implicit grant of broader control over recreational UAS use.  Arguably, this reasoning could support a broad system of state or municipal laws regarding when, where, and how model aircraft are flown, including setting licensing or piloting standards.

It is somewhat ironic that the greatest triumph of the UAS hobbyist community, receiving a broad carve-out from FAA jurisdiction, may have the effect of enmeshing recreational flyers in a web of conflicting local laws.  It will be interesting to see what Virginia legislators do with this green light to regulate.

(Originally posted July 16, 2015)

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