As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.
Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations. According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish requirements for safe operations of drones posing little or no public risk or threat to the national airspace system. The FAA has required the registration of drones which it claims is consistent with its authority under the law. Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”
A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.
Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.