Morris Manning & Martin, LLP

Update: Congressional Action on Drones Could Preempt State and Local Laws

04.06.2016

A measure pending in Congress could give the Federal Aviation Administration (FAA) exclusive power to regulate drones. If it passes, protection of privacy and property rights may suffer.

On March 16, 2016, the Senate Committee on Commerce, Science and Transportation approved a new FAA Reauthorization bill that would drastically alter the evolution of the nation’s drone laws. Section 2142 would make the FAA the nation’s sole drone regulator. If the provision makes it through the political process and becomes law, drone operators would be free to ignore state and local restrictions. For example, the Georgia Legislature’s recently adopted law would be largely preempted.

Georgia’s new drone law – assuming Governor Deal signs it – would make weaponizing a drone a felony, and limit law enforcement's use of drones in surveillance and evidence-gathering. It would also preempt local and county ordinances adopted after April 1, 2016. Finally, it would create  the Georgia Unmanned Vehicle Systems Commission.

I doubt that anything other than the creation of the Commission would survive preemption, depending on how broad terms such as “manufacture” and “operation” are construed in the Congressional bill.  Even evidence-gathering could be construed as an “operation,” and since the new Georgia legislation is geared toward use of unmanned aircraft systems (UASs) specifically in law enforcement and evidence collection, it would likely be preempted if the Senate Bill passes in its present form.  I believe the ban on equipping drones with a weapon in the Georgia legislation would also be clearly dead, as would Georgia’s power to regulate drones in the state. 

While the U.S. Senate Bill leaves state and local laws governing nuisance, voyeurism, harassment and several others in place, it does so only if the laws were not specifically related to the use of drones for the illegal acts.  Unfortunately, drones present some unique challenges in the areas of nuisance and voyeurism, for example, which might not be addressed adequately under state laws that have been around for decades, if not longer.

The U.S. Senate Bill certainly goes further in terms of preemption than the FAA apparently thought it could do on its own, based on the guidance that came out in a December 2015 FAA Fact Sheet.  In fact, a majority of what was in the Georgia legislation was included in the Fact Sheet as areas that were not preempted, and could be enacted without consulting the FAA.  The desire to avoid a patchwork of state and local regulation that would hinder development of the drone industry does not appear to justify this breadth of preemption, particularly in areas seemingly outside the FAA’s traditional role. There is clearly a lot of opposition and it will be interesting to see how this develops. Stay tuned for updates.

The proposed Senate Bill can be read in detail here and the Georgia legislation as adopted can be read here.

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John Fry is a partner with the law firm of Morris, Manning & Martin, LLP. This column is presented for educational and informational purposes and is not intended to constitute legal advice.

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