Federal law is quite clear that the Federal Aviation Administration (FAA)  exercises exclusive control over the nation’s airspace, regardless of the state and local jurisdiction involved.  Under the principle of “pre-emption” the FAA’s authority supersedes all other authority – without exception.  In theory, in a legal showdown, federal courts might very well uphold the FAA’s authority, rendering the current – and ever expanding – patchwork of state and local laws governing drone use moot.

But there is a critical legal loophole that complicates the issue.  While the FAA controls the nation’s airspaces and the rules governing use of them, it does not establish and enforce laws relating to launching and landing sites; states do.  Use of the air, which flows freely across a common sky, is one thing; use of the ground, which is territorially bound, is another.  And since aircraft must take off from somewhere and eventually land somewhere, the FAA’s exclusive authority may not be so exclusive after all – except in theory.  If nothing else, as a practical matter, some degree of formal cooperation between federal and state/local authorities in establishing drone rules and regulations is probably essential – and therefore, inevitable – many observers believe.

In light of this legal ambiguity, the FAA and state/local governments seem highly reluctant to try to litigate this issue.  Instead, states and localities continue to pass their own laws and ordinances, sometimes demarcating where drones can and cannot fly – for example, over local public parks.   In many and perhaps most cases these restrictions actually complement FAA rules – for example, the 400 feet altitude ceiling on drone flights is universally accepted, as are restrictions on flights near airports or government buildings, especially military installations. Nevertheless, as the number and scope of these state and local laws continues to grow, the FAA has become increasingly vocal about its authority to “pre-empt” these laws, should the need arise.

Many in the drone industry who side with the FAA on this issue – and few others, it seems – would like to see the matter clarified.  They see the current patchwork of state and local laws as a hindrance to the development of a more robust drone industry.  Faced with the demands of different, often adjacent, jurisdictions, many commercial operators fear exposure to liability and the attendant risk of protracted and costly litigation.  As a result, they exercise undue caution on the development of drone operations that might be more scalable, efficient and profitable, industry advocates say.

At the AUVSI Xponential conference in Denver last week, several of those drone advocacy experts were on hand to make the case for a reaffirmation by the US Congress of the FAA’s pre-emptive authority.  They included  Kenji Sugahara representing the Drone Service Providers Alliance, Scott Shtofman of the American Unmanned Vehicle Service International, David Heath, Pennsylvania Drone Association; and Rob Olson of the Illinois Drone Association.  Vic Moss, an award-winning photographer who teaches aerial photography at the DroneU, moderated the panel.  All five men were at pains to re-emphasize the importance of pushing back against the growth of state and local laws governing drone use, which are hindering the drone industry and are at odds, they insisted, with the FAA’s sweeping legal authority under federal law.

Moss has even gone so far as to publish “An Open Letter to State and Local Policy-Makers” which seeks to educate state and local officials about the potential consequences of passing laws at odds with the FAA’s own rule-making prerogatives.  “It is in the best interest of your state or town for you to educate not only yourselves about who has authority over the NAS, but your constituency as well,” reads his letter. “Not only will it save [the] time and resources of your municipality, you won’t have to sit in front of an angry group of constituents asking why their taxes went up in order to pay for a federal lawsuit.”

Moss and the other advocates want drone industry stakeholders to take their case to the Hill and to lobby federal lawmakers who are holding reauthorization hearings for the FAA.  He says part of the problem is simply lack of education on the part of state and local policy-makers.  Another is the exaggerated influence of noisy local citizens groups that may push officials to pass laws that are unlikely to hold up in court, if challenged.

“There are a lot of politicians who want to work within the law.  I think most simply don’t understand the federal framework,” Moss says.

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