There is still room for state and local regulation.19 None of the three categories of preemption (express preemption, field preemption, and conflict preemption) applies to land use and zoning regulation of UAS.20 Express preemption occurs when Congress has expressly stated it is preempting the area. Field preemption occurs “[w]hen Congress intends federal law to “occupy the field.”21 Conflict preemption can be found when “it is impossible for a private party to comply with both state and federal law, and where “under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.””22 The Supreme Court has found that determining whether the obstacle is significant “is a matter of judgment to be informed by examining the federal statute as a whole and identifying its purpose and intended effects[.]”23
There is no express Congressional preemption for UAS unless they are “used commercially to transport property for compensation across state lines,” then “the Deregulation Act preempts any state regulation related to its price, routes, or services.”24 FAA implied field preemption applies to “[o]perational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace.”25 However, there is a carve-out for non-commercial UAS within the FAA Modernization and Reform Act of 2012 (FMRA) that leaves space for state and local governments to act.26
Others agree that FAA’s implication that it has preempted the field is a stretch.27 Keep in mind that it is state and local governments that determine “where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed” and it is the state and local governments that incur the attendant takings liability for aircraft noise based on these decisions.28 These state and local governments — not the federal government — then make the decisions about the location of the low altitude flights in and out of their communities by choosing the location of their airports and runways. These state and local governments own airports and make aviation related decisions that affect their communities. Furthermore, it is the same state and local governments that own and operate airports that are required to protect the airspace near their federally obligated airports. And it is these state and local governments that are interested in protecting their investments in their airport infrastructure by insuring nothing impacts the utility of their airports.
This article argues that Congress has not occupied the entire field of UAS regulation in the NAS29 and state and local regulation of model UAS operations near airports is appropriate to help protect the safety of manned flight. To begin with, Congress has explicitly allowed for the regulation of noncommercial30 UAS through promulgation of community-based safety guidelines.31 Second, the FAA has delegated the responsibility to protect the airspace surrounding their facilities to their grant obligated airports via grant obligations.32 Third, there is a significant resource allocation problem created by the sheer numbers: the federal government does not have the resources to address the risks posed by the hundreds of thousands of UAS that exist today let alone the millions that are expected to enter the NAS over the next five years.33 Consequently, a coordinated response between the federal government and state and local governments is necessary.34 Fourth, the FAA has created a robust regulatory framework to govern commercial UAS operations and required education regarding airspace and rules to mitigate potential conflicts and licensure for commercial operators. But, the noncommercial UAS operators (who are not engaged in commerce and do not require the same education before they fly) require a different approach when it comes to regulation and enforcement of applicable rules to protect the NAS.35 Land use and zoning regulation, as an exercise of local government police powers, is the most appropriate means to protect airspace near airports because it will provide local law enforcement officers the tools they need to police UAS flights near airports. Furthermore, UAS operators are engaged in land use because they control the UAS from the ground and local communities have always had a say in the location of the airports and heliports.36 The FAA has acknowledged that local land use and zoning regulations fall within the ambit of police powers not preempted by the federal government.37
This article does not address other grounds upon which state and local governments likely have the police power to regulate UAS including restrictions on surveillance, prohibitions on voyeurism, hunting and fishing limitations, and prohibitions on attaching firearms to UAS because FAA generally acknowledges that state and local governments are not preempted in these areas.38 Nor does this article address larger policy driven questions raised by UAS operations.39 This article does address a narrow area in airport terminal airspace where there is a lack of clear regulation that raises potential enforcement and safety issues associated with manned aircraft and non-commercial UAS operations in the same vicinity.
I. UAS are Federally Regulated Aircraft
“ ‘National Airspace System’ (NAS) means the common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. Included in this definition are system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.”40 Although the United States has declared that it has exclusive sovereignty of airspace of the United States,41 it regulates the NAS under authority granted to it via the Commerce Clause.42 It remains an open question whether the NAS extends down to the ground everywhere or just at airports and heliports.43 Regardless of the answer to that question, Congress has directed the Administrator of the Federal Aviation Administration (Administrator) to prescribe air traffic regulations on the flight of aircraft for: “(A) navigating, protecting, and identifying aircraft; (B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles; and between aircraft and airborne objects.”44 The Administrator must “promote safe flight of civil aircraft in air commerce” and carry out his or her duties in a way that “tends reduce or eliminate the possibility or recurrence of accidents in air transportation.”45 These goals are accomplished through a significant number of formal FAA regulations, informal advisory circulars46 and, in the case of Airports, contractual grant assurances.47
This broad authority has led the FAA to imply that field preemption applies to UAS regulations in the NAS.48 The courts have pushed back. “Congress surely understands that state and local authorities are (usually) well positioned to regulate what people do in their own backyards. The Constitution creates a limited national government in recognition of the traditional police power of state and local government. No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground.”49 Congress has stated the non-commercial UAS can be regulated based on community-based standards.50
Thus, there remains a great deal of uncertainty. UAS were determined to be aircraft because: “An aircraft is any device that is used for flight.”51 Section 14 CFR Part 91 governs the operations of aircraft. Violations of these regulations could endanger safety in the NAS. Actions that could create risk between Manned Aircraft and UAS are largely prohibited by existing federal regulations. An example of regulations governing manned aviation safety includes, a prohibition for aircraft operating below 1000 feet above the highest obstacle within a horizontal radius of 2000 feet and in congested areas and 500 feet above the surface except when taking off or landing.52 (This regulation does not make much sense for UAS who must operate below 400 feet above ground level (AGL).) Aircraft are also forbidden from operating so close to each other to create a collision hazard.53 Likewise, the operation of an aircraft in a “careless or reckless manner so as to endanger the life or property of another” is prohibited.54 Dropping objects that create a hazard to persons or property is also banned unless reasonable precautions are taken to avoid injury or damage to persons or property.55 These could all be examples of operations that endanger the safety of the NAS. “No person may operate model aircraft so as to endanger the safety of the national airspace system.”56 Part 91 provides some guidance to UAS operators to discern how a UAS could endanger the NAS.
II. UAS Regulation in a Nutshell
The existing federal framework for regulation and control of aircraft in the NAS was not designed with UAS as a component. FAA regulation of UAS stems from FMRA, which provides the basic framework to bring UAS into the NAS. Currently, there are five primary categories of UAS operation:
- FMRA § 333 Operations
- 14 CFR Part 107 Operations
- Public Aircraft Operations
- Operations under an Airworthiness Certificate
- FMRA § 336 Operations
What follows is a brief review of each of these recognized categories of UAS operations with a slightly deeper focus on FMRA § 336 operations. FMRA § 333 directs the Secretary of Transportation to “determine if certain unmanned aircraft systems may operate safely in the national airspace system”.57 It opened the door to commercial UAS operations in the NAS. It created the Certificate of Waiver or Authorization (COA) process. This process is relatively complex and in depth. To relieve some of these burdens, the FAA created a UAS exemption under FMRA § 333 upon certain conditions58 and granted a blanket COA for flights at or below 400 feet except in restricted airspace.59
FAA then promulgated 14 CFR Part 107 to further regulate commercial operations of UAS in the NAS. If § 333 opened the door, this rule opened the floodgates for commercial operations. Part 107 has stringent requirements60 including limiting operations to a maximum altitude of 400 feet AGL or within 400 feet of a structure.61 This rule prohibits any person from operating a “small unmanned aircraft in a manner that interferes with operations and traffic patterns at any airport, heliport, or seaplane base.”62 In addition to the operational requirements, the remote pilots in command must be certified by the FAA. Part 107 does not require notification of Airport Operators of UAS operations in Airport vicinities however depending on the Airspace of the UAS operation, Air Traffic Control may require notification.63 If someone wishes to operate outside of the parameters of Part 107, there is a waiver process or he or she could avail themselves of the Section 333 process. The key requirements for Part 107 operation are that the “operator must be certified and the small UAS must be registered.”64 Thus, through the 333 COAs and Part 107 operations, the FAA has developed a fairly robust regulatory regime governing commercial operations of UAS within the NAS by requiring training, coordination with Air Traffic Control and limiting altitudes, mitigated potential manned aircraft — UAS conflicts.
Different rules apply to public use of UAS in the NAS and are beyond the scope of this article. Government entities may fly: (1) under the small UAS Rule, Part 107, (2) under a public COA that permits flights in Class G airspace at or below 400 feet or (3) via an emergency COAs in special circumstances.65
The other method to obtain approval to fly an UAS in the NAS is through a Special Airworthiness Certificate. FAA Order 8130.34C provides the process. It “establishes procedures for issuing special airworthiness certificates in the experimental category or special flight permits to unmanned aircraft systems (UAS), optionally piloted aircraft (OPA), and aircraft intended to be flown as either a UAS or an OPA, under the designation “OPA/UAS.”66 A special airworthiness certificate is primarily granted to civil aircraft to allow for “research and development, crew training, and market surveys.”67 Certain commercial operations are prohibited. FAA imposes other flight restrictions on operations.68
III. License? I Don’t Need No Stinkin’ License
These types of UAS operations (FMRA § 333, Part 107, Public and Airworthiness Certification) are a drop in the bucket compared to overall UAS operations. The majority of UAS are noncommercial69 and herein lies the biggest safety concern. “The exclusion of model aircraft from FAA regulation has major impacts on security within the NAS and on the ground.”70 FMRA § 336 created an exemption for model aircraft operations that meet certain criteria. It defined model aircraft to include an unmanned aircraft “that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”71 It provided certain restrictions on the operations of model aircraft that include:
- the aircraft is flown strictly for hobby or recreational use
- the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization
- the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization
- the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft
- when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).72
Note that flights near airports are not prohibited operations although noncommercial UAS operators must provide notice. There is fear that there is significant non-compliance with the notice provision.73 FMRA ties the FAA’s hands when it comes to regulation of UAS because it explicitly states that the Administrator of the FAA may not promulgate any rule or regulation regarding a model aircraft.74 The FAA has found a workaround by broadly interpreting the caveat in paragraph (b) that nothing in this section would prevent the FAA “to pursue [an] enforcement action against persons operating model aircraft who endangers the safety of the NAS.”75 Unlike the other UAS Operators, model operators do not require licensure.76 The OIG has criticized the FAA for its lack of enforcement in the UAS space.77
In December 2015, FAA adopted a rule that required recreational UAS operators to register their UAS and pay a $5 fee. Failure to comply could result in civil or criminal penalties.78 FAA also published an Advisory Circular to provide additional guidance to non-commercial UAS.79 It states that the FAA has the ability to bring enforcement actions against noncommercial UAS to enforce compliance with various flight restrictions including Temporary Height Restrictions and to enforce compliance with Flight Rule Areas and enforce compliance with Notices to Airmen (NOTAMs).80 It also states: “Model Aircraft should follow best practices including limiting operations to 400 feet above ground level” leaving an open question whether Model UAS operations above 400’ AGL would per se endanger the safety of the NAS and then be subject to FAA’s enforcement mechanism.81
John Taylor challenged the registration rule and the restrictions contained in the Advisory Circular.82 The D.C. Circuit held that the Registration Rule violated FMRA § 336 because it is a rule or regulation restricting a model aircraft.83 The Court acknowledged that “Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system”” but did not connect the registration rule with safety.84 With respect to the Advisory Circular, the court found a procedural defect in that Mr. Taylor failed to challenge it within 60 days.85 As a result, it did not reach the merits on it and it still stands.86 Arguably, under the standards announced in Taylor, the Advisory Circular would survive challenge since it focuses on setting forth rules for operations of UAS that can be tied back to safety in the NAS.
IV. State and Local Governments are Best Poised to Respond to Non-Commercial UAS in the Terminal Vicinity
The FAA implied it has preempted the field concerning the operation or flight of aircraft.87 Courts have broadly interpreted the Commerce Clause grant of authority to allow regulation of potential threats to aviation operating in interstate commerce.88 As a result, the federal government has a stronger interest in the airspace near airports than other airspace. This is borne out by the FAA’s regulatory regime where the most restricted airspace surrounds the busiest airports.89 However, the airspace around airport terminals, approach corridors and departure corridors is regulated by local government too; especially with respect to preventing obstructions to air navigation. For instance, 14 CFR § 77.98 requires Airports to Protect space above imaginary surfaces used for departures and arrivals from obstructions. The FAA requires notice for all construction 200 feet above ground level. However, FAA does not have enforcement under 14 CFR Part 7790 and relies on the grant assurances it receives from Airports to protect the airspace above the 14 CFR Part 77 surfaces used for departures and arrivals. So although the Federal Government may have a very strong interest in the airspace near airport terminals, it is not an exclusive interest.
As a result, the FAA expects Airport Sponsors91 to play a major role in protecting airspace around their facilities via the grant assurance process. In exchange for various federal grants, federally obligated airports are responsible to:
- “[B]e operated at all times in a safe and serviceable condition …” and not “cause or permit any activity or action thereon which would interfere with its use for airport purposes.”92
- “[T]ake appropriate action to assure terminal airspace is cleared and protected by removing existing hazards and preventing future hazards.”93
- “[T]ake appropriate action, to the extent reasonable, to restrict the use of land in the vicinity of the airport to activities compatible with normal airport activities.”94
It is uncertain whether these specific requirements would create a legal duty for Airport Sponsors to address UAS. On their face, it appears that Airport Sponsors must play a role in regulating UAS in their terminal airspace and vicinity, however, the FAA issued conflicting guidance on December 17, 201595 taking a “bold position”96 implying that local or state restrictions on “flight altitude, flight paths; operational bans; [and] any regulation of the navigable airspace,” could be preempted and at the very least require consultation with the FAA.97 The FAA’s approach of going alone with respect to UAS regulation and broadly implying local authority is preempted has been criticized as impractical and inefficient.98
V. No One Is Guarding the Henhouse
The risk for manned aircraft-UAS conflict is real and reports of near misses are common.99 There is no uniform mechanism (technologically or otherwise) in place to monitor the millions of UAS flights that are occurring. One such technological solution, requiring ADS-B100, was rejected by the FAA in its Part 107 rulemaking process as too costly.101 As a result, collision avoidance for UAS largely relies on the UAS operator.102 This is a problem if the operator is inexperienced, is not aware of rules and regulations; chooses to ignore the rules and regulations; or is a bad actor.
Likewise, there is no good enforcement mechanism for hobbyist and model violators. FMRA § 336 states that the Administrator may pursue enforcement actions against persons operating model aircraft who endanger the safety of the NAS.103 It is a federal crime to willfully damage, destroy, disable or wreck any aircraft.104 But it would not be a criminal act to negligently do so? It is a criminal act to violate the National Defense Airspace.105 There is no such corresponding crime related to violating airport terminal airspace. To exacerbate matters, FAA’s hands are tied with its administrative remedies because the model and hobbyist UAS operators are not licensed by the FAA.106 And now recreational UAS vehicles are no longer required to be registered.107 It is a violation of 14 CFR 91.13 to operate an aircraft in a careless or reckless manner. After Taylor, does 14 CFR 91 apply to recreational UAS operators? The FAA recognized these limitations pre-Taylor by emphasizing that “most violations of FAA’s regulations may be addressed through administrative enforcement measures.”108 It is telling that #5 on the Law Enforcement Officer Guidance checklist is “take action based on local laws ordinances.”109 Federal enforcement options were limited and now post-Taylor are even more uncertain. OIG questioned whether the FAA has the resources or willpower to take comprehensive enforcement action.110
The FAA’s Law Enforcement Guidance for Suspected Unauthorized UAS Operations issued on August 11, 2016 sums up the difficulties faced by Law Enforcement related to suspected violations of UAS rules and regulations:
It is extremely difficult to provide a “one size fits all” guide to cooperative investigation of suspected unauthorized UAS operations considering the myriad jurisdictions and the associated statutory and constitutional restraints and requirements. State and local officials are urged to use their governmental unit’s legal resources and their own management chain to develop acceptable protocols for dealing with these instances.111
And so, on the Law Enforcement Side, it appears that the FAA is pleading for help in enforcement. Although FAA’s hands may be tied when it comes to regulation of noncommercial UAS, state and local governments have the authority to regulate UAS.112 The FAA has recognized that “certain legal aspects concerning small UAS use are best addressed at the State or local level because they are within state and local police power.”113 They include:
Laws traditionally related to state and local police power — including land use, zoning, privacy, trespass, and law enforcement operations — generally are not subject to federal regulation.
- Requirement for police to obtain a warrant prior to using a UAS for surveillance
- Specifying that UAS may not be used for voyeurism.
- Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
- Prohibitions on attaching firearms or similar weapons to UAS (emphasis added).114
Since all non-commercial operations must maintain line of sight or they are not model aircraft under Section 336 and should fly no greater than 400 feet AGL,115 land use and zoning regulations limiting or prohibiting certain UAS flights, to the extent that they articulate communitybased safety guidelines, are appropriate exercises of State and Local Government Police Power. Such land use or zoning regulations could assure that no activities are permitted that would interfere with the use of the Airport for Airport purposes, assure that the terminal airspace is cleared and protected by preventing hazards, and appropriately restrict the use of land in the vicinity of the airport to activities compatible with normal airport activities. These regulations can regulate activities at the surface and prohibit an operator using land to operate an UAS in airspace that above the 400’AGL threshold.
The Supreme Court has stated that airspace can be owned “at least as much of the space above the ground as he can occupy or use in connection with the land.”116 It is doubtful that FAA’s exclusive jurisdiction in the NAS extends down to the blades of grass immediately above the ground. Model UAS operations, in order to be in compliance with FMRA § 336, must be operated below 400’AGL,117 within the line of sight of the operator118 and without interfering with manned aircraft.119 FAA’s exclusive jurisdiction may not extend this far since it is below the 500’ AGL minimum standard for manned flight. In order to operate, the majority UAS are launched and retrieved from land and therefore properly the subject of land use regulations. This attendant land use by the operator in a UAS line of sight operation is the fundamental distinction between UAS and traditional airplanes and helicopters which are operated from the airspace once airborne. Airport siting decisions are local and once sited, airports require massive amounts of community investment to remain operational. Airport sponsors have a safety and investment obligation to protect that infrastructure from structures or other objects that could interfere with the airport’s utility. This is accomplished through land use and zoning regulations in the vicinity of their airports. Most state and local governments have height zoning frameworks that exist for buildings and other objects (i.e. trees) in their vicinity.120 These regulations provide distinct zones within which certain heights are not allowed. These laws or ordinances help airport sponsors comply with grant obligations 19, 20 and 21. State and local governments have decades of experience working cooperatively with the Federal Government to protect airspace near airports from structures and other objects.
A very simple regulation could prohibit using land UAS flights not authorized by the FAA above 400’AGL and in the airspace beyond runway ends in which manned aircraft could be operating below 400’ AGL.121 Since all commercial UAS flights should be authorized by the FAA in order to fly above 400’ AGL and no recreational UAS operators should fly above 400’ AGL per the Advisory Circular, there would be no conflict from a preemption standpoint for the vast majority of airspace. Supreme Court precedent in the takings arena related to airport siting provides ample police power justification for prohibiting land use for non-FAA authorized UAS operations in the near vicinity of airports in order to protect both manned aircraft and the public safety near airports.
Local authority to regulate land use and zoning is not generally preempted.122 Regulating non-commercial UAS operators from operating their UAS in the vicinity of airports to (1) prevent interference with airport purposes, (2) clear and protect airspace by removing existing hazards and preventing future hazards and (3)restricting the use of land in the vicinity of the airport to activities compatible with normal airport activities is consistent with airport grant assurances. These regulations should be community based and focused on safety. A catchall category could be included to ban reckless activity.123 Thus, state and local governments can protect their airports by prohibiting or regulating land uses that allow UAS operations. Such land use regulations could be part of a more comprehensive state or local scheme to regulate use of UAS that includes restrictions on surveillance, prohibitions on voyeurism, hunting and fishing limitations and prohibitions on attaching firearms to UAS.124