National Airspace: Not an Area for State Lawmaking

As the UAS rulemaking grinds slowly forward, the specter of state and local regulation of UASs looms ever larger.  The public is continuing to push state legislatures into enacting stringent UAS privacy laws.  While many see safety and privacy as completely separate issues, local restrictions on when and how a UAS may be flown impacts uniformity, which in turn, can impact safety.

Going all the way back to the enactment of the Federal Aviation Act of 1958, Congress found that the creation of a single, uniform system of regulations governing use of the national airspace was vital to increasing air safety Abdullah v. American Airlines, 181 F.3d 363, 366 (3rd Cir. 1999); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).  In fact, the House and Senate Reports from the 1958 Federal Aviation Act specifically state that “[a]viation is unique among transportation industries in its relation to the federal government – it is the only one whose operations are conducted almost wholly within the federal jurisdiction, and are subject to little or no regulation by States or local authorities.”  See S. Rep.  No. 1811, 85th Cong., 2d Sess. 5 (1958).

The fact that state or local governments are acting in what they believe are the best interests of the public does not affect the necessity for federal law to completely occupy this area.  As a number of federal courts have held, in the field of aviation, any state law “must yield to the force of federal law . . ., notwithstanding that it is constructed upon values familiar to many and cherished by most, and notwithstanding that it might fit neatly alongside the federal scheme.”  Abdullah, 181 F.3d at 374.

The creation of a patchwork of laws and regulations by state and local government would undo all of the benefits of a uniform aviation system.  Predictability is the key to aviation safety.  Inconsistent state and local regulations over where and how a UAS can be flown would make it difficult for a pilot to predict where hazards might be lurking.  If, for example, there are two states with different views and, in the name of privacy, one state prohibits UAS from public land, while another requires that they be used exclusively in public parks or other public land, then the result will be confusion and increased danger.  A pilot may not know if the state he is flying over is one where public land is free from hazard, or whether it has become a magnet for hazards by operation of local law.

This is not to say that there should be no privacy rules.  To the extent the public wants these matters to be a part of aviation policy, the better path would be for the FAA to work with the executive branch to create uniform federal rules or standards for privacy.  In fact, press reports indicate that a multi-stakeholder process will soon be announced that will be led by the National Telecommunications and Information Administration of the Department of Commerce.  Hopefully this process, proceeding in parallel with the UAS rulemaking, will maximize uniformity and safety.

(Originally posted October 9, 2014)

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