The FAA has just updated its policy statement regarding the legal considerations applicable to state and local regulation of Unmanned Aircraft Systems (UAS). Originally issued in 2015, the FAA “fact sheet” was intended to stem the rising tide of state UAS regulations. The FAA made clear that federal preemption applies equally to both crewed and uncrewed aircraft operations, and the states can only regulate a small part of UAS operations.
The updated fact sheet provides the following summary of the general principles of federal preemption of aviation and how they apply to UAS:
- States and local governments may not regulate in the fields of aviation safety or airspace efficiency but generally may regulate outside those fields.
- A state or local law will be preempted if it conflicts with FAA regulations.
- State or local laws affecting commercial UAS operators are more likely to be preempted.
The fact sheet points out that since 2013, virtually every state has passed laws relating to UAS. Most of these laws address issues such as privacy, the illegal use of UAS (such as the delivery of prison contraband), and the use of UAS by state and local governments for firefighting and law enforcement, and are not preempted. However, some jurisdictions continue to attempt to regulate UAS issues that are properly within the federal sphere, such as prohibiting UAS operations over certain areas, trespass, setting minimum flight altitudes and providing rules for how aircraft may be operated beyond visual line of sight.
The FAA also reiterates its position that there is no minimum altitude under the regulations for the operation of UAS in the National Airspace System. As a result, all state laws that attempt to set a blanket minimum altitude for UAS flight over public or private property are preempted. In addition, the fact sheet states that the Airline Deregulation Act of 1978 applies to unmanned aircraft, and potentially preempts any state law that has a “significant impact” on the “rates, routes and services” of commercial UAS operators.
Finally, the fact sheet recognizes that state and local governments are free to regulate privacy issues involving UAS operations, but also warns that the laws must be narrowly tailored to meet the issue.
For example, a privacy-related ban on UAS operations over an entire city would very likely be preempted because it would completely prohibit UAS from using or traversing the airspace above the city and impede the FAA’s and Congress’s ability to safely and effectively integrate UAS into the national airspace. In contrast, a privacy-related restriction applied to the lower altitudes over facilities where people could likely have an expectation of privacy—such as parks or schools—would more likely be permissible because of its lesser impact.
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 updated “fact sheet” will bring the issue back into focus and head off new attempts by state and local governments to pass laws that are outside of both their jurisdiction and area of expertise