Another Drone Bill Seeks ‘Local Control’ Of Unmanned Aircraft

Another bill seeking to spread the regulation of unmanned aircraft systems (UAS) down to the state and local levels has been proposed.

Introduced by U.S. Rep. Jason Lewis, R-Minn., the Drone Innovation Act, H.R.2930, addresses the operation of drones flying below 200 feet in altitude and “within the lateral boundaries of a state, local or tribal government’s jurisdiction.”

Although it recognizes that the Federal Aviation Administration (FAA) “retains control over the national airspace,” the legislation directs the U.S. Department of Transportation (DOT) secretary to “work with state and local officials to develop a framework for local operation … to encourage innovation and protect privacy.”

According to a press release from Lewis, the congressman “seeks to balance the principles of local control and a right to privacy with a need to continue encouraging American innovation in cutting-edge technology.”

“America continues to lead the world in technological advances. It’s clear to me that drones have a growing role to play in interstate commerce, and that’s vital to maintaining our economic strength at home and competitiveness on the world stage,” he says in the release. “The Drone Innovation Act will promote that spirit of invention by establishing a clear framework for the operation of unmanned aircraft systems. Importantly, my legislation also lays out clear protections for your right to privacy and gives local governments the primary responsibility in forming guidelines for how drones can be used in our communities.”

According to a summary of the bill, the framework developed by the DOT secretary and local officials would maintain the FAA’s “preemptive authority over existing statutes” but would direct the agency to “preserve traditional state and local interests.” These include “protecting public safety, personal privacy and property; managing land use; and restricting nuisances and noise.”

Specifically, the summary states that the framework would do as follows:

• “Help harmonize and standardize reasonable time, manner, and place limitations and restrictions across the nation;
• Create an environment that is friendly to innovation and fosters rapid integration of UAS; [and]
• Aid states in adopting unmanned traffic management (UTM) and making limitations publicly available to all users.”

The bill says this policy framework would be published in the Federal Register six months after the legislation is enacted.

The bill argues that local governments should be able to deal with potential drone issues on their own terms: Specifically, the legislation says they “may find and implement more innovation-friendly policy than federal agencies” and that “problems that are merely common to the state, local and tribal governments will not justify federal action.”

However, the summary of the bill notes that the act would not interfere with first responders’ drone operations or prevent the FAA from issuing Temporary Flight Restrictions or from “pursuing action against unsafe UAS operators.”

In addition, it would not affect drone operations taking place on one’s own property or “right of way,” and it would “preserve state and federal statutes and common law rights.” However, it would keep the FAA from “authorizing the operation of an unmanned aircraft in local airspace above a property without permission of the owner.”

The Drone Innovation Act would also establish pilot programs in which 20-30 state/local/tribal governments would partner with the DOT secretary to create a report on best practices for other state/local/tribal governments on their regulation of drones. The report would need to be submitted to Congress within 18 months of the program’s establishment. Further, the legislation would also ensure that NASA consults with the pilot program participants in the development of UAS traffic management.

Legislation seeking to empower local authorities to regulate drones is nothing new: Just last week, for example, the Association for Unmanned Vehicle Systems International and 13 other organizations sent a letter to members of Congress to warn them of “dramatic, unintended consequences” of a similar bill rolled out last month, the Drone Federalism Act.

Similarly, the Drone Federalism Act would “establish a process for federal, state, local and tribal governments to work together to manage the use of recreational and commercial drones,” but the UAS stakeholders opposing the bill argued that a “consistent framework, agreed upon by all parties involved, is essential for the future regulatory system governing one of the fastest-growing areas in the aerospace and technology sectors.”

Even back in 2015, California Gov. Jerry Brown vetoed a bill that would have created a no-fly zone for drones 350 feet or fewer above private property in the state. At the Drone World Expo, industry stakeholders extensively discussed the federal preemption topic at a session entitled “Emerging state legislation: solution or quagmire?”

This latest legislation, which was introduced on June 16, is co-sponsored by U.S. Reps. Julia Brownley, D-Calif.; Todd Rokita, R-Ind.; and John Garamendi, D-Calif.

In a statement, Brownley remarks, “Congress needs to do more to spur innovation in this exciting new field of aviation while, at the same time, promoting the safe integration of unmanned systems into the national airspace. As this process moves forward, it’s important that we explore the proper role of state and local governments in helping to foster innovation. The pilot program created by the bill would be one step that can help lead us forward.”

Though many in the drone industry have long been advocating for one set of federal rules governing UAS operations, rather than a “patchwork” across the nation, Dr. Greg McNeal, co-founder of AirMap and professor of law and public policy at Pepperdine University, brings up a point: “If the FAA itself thinks federal preemption doesn’t have a future, the drone industry has to ask itself, ‘What is a reasonable compromise?’”

In a statement to UAO, McNeal explains that the agency has already “declined to formally and completely preempt regulations by state and local governments.”

“In fact,” he continues, “the FAA appears to be weighing an expanded role for state and local authorities.”

To serve this point, McNeal quotes FAA Administrator Michael Huerta himself, who said at a recent DAC meeting that there must be more collaboration with state/local authorities in order to get their take on how they can become more involved with UAS rulemaking.

“We are open to looking at the question of how we can resolve this … The first thing we need to understand is what it is what exactly the state and local governments would like to [control] and how can we find a way to coexist,” Huerta reportedly said.

Pointing back to the Drone Innovation Act, McNeal says, “We now know what state and local governments are asking for: the right to make reasonable time, manner and place rules.”

In turn, he suggests looking at the newly proposed legislation pragmatically: “We can spend the next decade in the courts, trying to secure federal preemption while fighting state and local drones rules that affect all of low-altitude airspace below 400 feet. Or we can consider taking the compromise we’re being offered today: protections for the FAA’s role in protecting the safety of the national airspace and a ceiling – in other words, a limit on state and local rules at 200 feet. And that’s only if state and locals decide to act; many may not.”

So, what would happen if we did adopt the Drone Innovation Act?

“We’d have a legal standard that would allow us to work with states to define reasonable rules,” McNeal says. “We’d get pilot programs that let us test UTM solutions not just with NASA and the FAA, but also with states and communities. Above 200 feet, we would secure the federal preemption we’ve long been advocating for so a right of transit across jurisdictions can be protected. And we could focus our attention on growing our companies and developing innovative solutions that advance the future of the drone industry, instead of lawsuits.”

In conclusion, he asks whether the UAS industry should “take a compromise we can live with now” or, rather, “risk getting a worse deal as community opposition mobilizes across America.” Though it’s “still an open conversation,” he says, “what’s clear is state and local [authorities] want to have the conversation in Congress, not in an unrepresentative committee,” referring to the DAC.