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FAA Updates Fact Sheet on State and Local Drone Regulation
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Since before the passage of Part 107 in 2016, regularizing business drone use in the USA, state and native laws – sometimes in conflict with FAA regulations – have developed. This issue is typically discussed as Drone Federalism, similar to the failed “Drone Federalism Act of 2017,” or as FAA Preemption, which is the concept that the FAA rules the airspace from the bottom up. Former FAA Administrator Michael Huerta warned against the proliferation of state and native drone laws, saying that a “patchwork quilt” of regulations across the U.S. would only create confusion, limiting the business industry and never enhancing safety.
In 2015, the FAA published a “Fact Sheet” to state and native governments (since faraway from the FAA website.) In that Fact Sheet, the FAA emphasized their position that airspace regulation belongs strictly to the federal government, citing “authority to control the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source.”
The Softening Stance
Since then, the FAA has softened it’s stance somewhat. The 2017 UAS Integration Pilot Program (the precursor of the FAA BEYOND Program) strove to provide state and native governments input into the event of drone regulations. State drone laws, nonetheless, have continued to be enacted: sometimes to the severe detriment of the business industry or with no full understanding of the technology.
The 2023 Fact Sheet still emphasizes FAA authority, but recognizes the existence of state laws.
The final balance between Federal and state authority within the context of aviation regulation is well established. The Federal Aviation Administration (“FAA”) has the exclusive authority to control aviation safety and the efficient use of the airspace by aircraft. Attempts by state and native governments to control in those fields are preempted.1 Outside those fields, the States are generally free to control—even by enacting laws which might be aimed toward or affect aviation—so long as their laws don’t conflict with FAA regulations or relate to the costs, routes, or services of business air carriers.
The Fact Sheet clarifies preemption, and provides examples of drone laws that will or is probably not preempted.
- State laws are subject to conflict preemption when compliance with each Federal and state regulations is inconceivable, or when the state law stands as an obstacle to the accomplishment and execution of the total purposes and objectives of Congress.
- Even when a state law regulates outside the fields of aviation safety and airspace efficiency and is subsequently not covered by field preemption, it should still be preempted if it conflicts with a number of FAA regulations.
Examples of drone laws that could be preempted by federal aviation regulations include selling or leasing air rights above highways, bans over entire cities, or local licensing or registration fees. State and native drone regulations focused on criminal acts like trespass, voyeurism, criminal mischief, or transportation of controlled substances, wouldn’t be preempted.