A Weird Time for Drone Operators

No drones (or dogs) allowed in this area of Boston, Mass.
Photo: Nick Higham/Alamy
No drones (or dogs) allowed in this area of Boston, Mass.

Late last month, a federal court dismissed a lawsuit brought against a Kentucky man who shot a drone out of the sky when it allegedly flew over his property in 2015. The man, who used a shotgun to take out the drone, later dubbed himself the “Drone Slayer.”

The drone operator, who filed the lawsuit in 2016, argued that his DJI Phantom 3 quadcopter, flying at an altitude of some 200 feet, was in federally protected airspace and was in no way trespassing based on the Federal Aviation Administration’s rules and even the trespassing laws of his state, which according to his suit prohibit a person from intruding, not a drone.

Why didn’t the federal court back him up? In short, it wasn’t because it thought this drone operator was incorrect; it was because it didn’t deem the matter important enough to make a decision that might influence the delicate balance between federal and states’ rights. And one of the justifications for that conclusion was that the FAA hadn’t involved itself in the incident.

Why not? An FAA spokesperson answers simply: “The FAA does not intervene in civil litigation to which the FAA is not a party,” adding that it would file an amicus brief if asked to do so by the court. Still, that doesn’t really explain why the FAA took no enforcement action against the guy wielding the shotgun. After all, the FAA has been loudly asserting its authority over drones flying in federally protected airspace, which it’s been claiming extends down to the level of the grass.

So is an irate property owner free now to take pot shots at drones flying over his or her property? Or are responsible drone operators, ones who fly their diminutive craft in a safe and reasonable way, able to operate them anywhere they please, so long as they follow the FAA’s rules governing drones and don’t break any state or local laws? And can state and local governments even make laws about the use of small drones, now that the federal government has clearly asserted itself in this realm?

Today, there are no clear answers to these questions.

“State and local regulation of drones is preempted by federal law—it’s absolutely clear,” says Henry Perritt, Jr., a professor at the Chicago-Kent College of Law who has written widely on this topic. “But because it’s preempted in my mind doesn’t mean every judge will agree with me.”

Before the FAA issued its Small UAS Rule in 2016, many states filled the vacuum by enacting their own laws for drones. In Texas, for example, you aren’t allowed to fly a drone over various places considered to be “critical infrastructure,” including a port or a railroad yard. According to North Carolina state drone laws: “It shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system” (though the statutes don’t make clear whether the drone could be used for spotting purposes). Many other states have their own sets of rules.

Regulations arose at the city level, too. Chicago for one issued a drone ordinance that speaks of “Chicago airspace” and requires operators, among other things, to register their drones with the city at a cost of US $50 per drone per year.

“In many instances, these statutes are in conflict with federal rules,” say Brendan Schulman, an attorney and vice president of policy and legal affairs for the world’s leading drone manufacturer, DJI, headquartered in Shenzhen, China. “That’s a concern to me—and it makes it hard for us to educate our customers.”

But Schulman is not arguing that state and municipal governments should simply defer to the FAA on anything that has to do with drones. “There are issues of local concern that are legitimate, which I think we need to address,” he says, stressing that the small kinds of drones we’re talking about are fundamentally different from manned aircraft, and local authorities are many times in a better position to figure out what the appropriate use of such a drone is. The problem, of course, is that a patchwork of drone rules is going to be very difficult for any drone manufacturer, much less any individual drone operator, to keep up with.

Some of the local authorities imposing drone rules seem to recognize that the regulation of drone flight is now in the federal realm. But they are nevertheless curbing drone use in some places by stipulating that drone takeoff and landing is prohibited. That end-run won’t suffice, though, should the FAA widely authorize the use of long-range drones for tasks that take them beyond the operator’s visual line of sight.

Schulman and others on the FAA’s Drone Advisory Committee’s Task Group 1 have been asked to consider the issue of state and local drone regulation. That group met just last week to consider possible approaches. “We have stakeholders who are trying to come up with creative solutions,” says Schulman. “At some point we’ll probably get there.”

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