In 2015, virtually every state considered some form of UAS law or regulation, and over half of the states enacted new UAS laws. This year’s crop of new laws, however, is different from what we have seen in past years. The states, most notably Nevada and California, have started to move from fairly standard privacy laws into the areas of airspace control and pilot qualifications. It appears that this new breed of state UAS regulations has finally spurred the FAA into action.
The FAA has just released a 7 page document entitled the State and Local Regulation of Aircraft Systems (UAS) Fact Sheet. In it, the FAA presents a very clear and concise explanation of what the national airspace system is, and why Congress has vested the FAA with exclusive control over the airspace. The FAA is charged with ensuring the efficient use of the airspace and regulating how, where, and when aircraft fly, as well as protecting both the safety of aircraft and individuals and property on the ground.
While the FAA does not call-out any specific state law as inappropriate, they do provide examples “of state and local laws that should be carefully considered” prior to adoption in any state. These include municipal UAS bans, attempts to control flight paths or altitudes, or flight within certain distances of landmarks. In addition, the FAA states that any effort to mandate specific types of technology, like geo-fencing, is inappropriate. Reading between the lines, this is a clear indication that if the states do not stop their venture into airspace regulation under the guise of privacy, legal action would be appropriate to protect federal interests.
Of course, there is nothing new in what the FAA is saying. The supremacy of the FAA in all things aviation was well established even back in the 1940s, when Justice Jackson eloquently wrote:
Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway, it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone, and not to any state government.
History has proven, however, that just because something is well established does not mean that everyone is aware of it. Hopefully, this new “fact sheet” will bring some perspective to legislators, who can stop wasting their time on laws that would just be overturned, and focus on laws that might make a difference for their constituents.
(Originally posted December 18, 2015)