Drones Present New Challenge in the Regulatory Landscape THE EYE IN THE SKY

Transcription

1 THE EYE IN THE SKY Drones Present New Challenge in the Regulatory Landscape As drones grow in popularity, from recreational enjoyment to the inspection of infrastructure, townships need to know where to draw the line on regulation so they don t butt heads with the Federal Aviation Administration. BY J. STEPHEN FEINOUR, ESQ. / NAUMAN, SMITH, SHISSLER & HALL, LLP 50 PA TownshipNews AUGUST 2016

2 Editor s note: The author would like to acknowledge the assistance of Timothy G. Joseph, a third-year law student at Penn State Dickinson School of Law and law clerk at Nauman, Smith, Shissler & Hall, LLP, in the research and drafting of this article. Unmanned aircraft systems (UAS), commonly known as drones, are a hot topic these days, drawing the attention of the Federal Aviation Administration (FAA), state and local governments, and even Disney World. Corporations, such as Amazon, view the technology as an innovative customer delivery service and an opportunity to increase their profits or market share. State and federal law enforcement agencies may find that drones offer more efficient policing techniques. Real estate firms are using drones to more efficiently survey property. Amateur hobbyists who received drones as holiday gifts have found new sources of recreational entertainment. And drones are increasingly used for inspection of transportation and utility infrastructure, such as bridges, viaducts, power lines, railways, and roads. However, the addition of thousands of new machines to the air raises significant safety and privacy concerns. Unskilled users may lose control of their drones, crashing them into people or property, causing injury. Many are also concerned about the invasion of privacy, either through audiovisual snooping or data collection. Against the recent proliferation of drones and competing interests, the regulatory and legal landscape is still evolving and far from settled. Current drone regulation Congress passed the FAA Modernization and Reform Act of 2012, directing the U.S. Department of Transportation and the Federal Aviation Administration to establish regulations for the safe operation of drones in American skies. In response, on February 23, 2015, the FAA published a proposed rule imposing weight, airspeed, and altitude restrictions, a line-of-sight requirement, and operator certification. The FAA will likely release the final rule later this year. As of December 21, 2015, owners of drones weighing 0.55 lbs. to 55 lbs. must register them with the FAA. Owners of drones over 55 lbs. must register using the separate Aircraft Registry process. Owners who purchased their drones before December 21 were required to register before February 19, 2016, or face potential criminal or civil penalties. Under the FAA s proposed rule, drone operators must do all of the following: 1) yield the right of way to all other users of the national airspace; 2) abide by a maximum speed limit of 100 mph; and 3) fly no higher than 500 feet above ground level and operate within visual line-of-site within three miles of visibility. Most recently, on February 24, 2016, the FAA established an aviation rulemaking committee to develop operating standards for microdrones, defined as weighing no more than 4.4 pounds and constructed of frangible materials that break, distort or yield on impact. Based on the committee s findings, the FAA will propose rules for these drones so they may be operated safely over people while minimizing potential hazards. The committee sent a report to the FAA administrator on April 1. Municipal regulation of drones On December 17, 2015, the Federal Aviation Administration, Office of Chief Counsel, issued an administrative guidance fact sheet titled State and Local Regulation of Unmanned Aircraft Systems. Federal law may preempt regulations that place drone restrictions on flight altitude, flight paths, operational bans, or any regulation of the navigable airspace. The FAA provides an example of an ordinance that may be pre-empted: a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. The FAA also suggests that mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be pre-empted. If the municipality is considering an ordinance related to these areas, the FAA recommends it first consult with the agency. The FAA has noted that [s]ubstantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If some municipalities restrict the use of drones and others do not, the FAA fears that the resulting patchwork quilt of restrictions could limit its flexibility to maintain a safe and sound navigable airspace. However, municipalities still have room to regulate drones. Laws traditionally related to state and local police power are not subject to federal regulation. These include laws on land use, zoning, privacy, trespass, and enforcement operations. According to the Congressional Research Service, states and municipalities can restrict or prohibit certain activities, such as launching, operating, or recovering a drone, on state- or municipal-owned land. Against the recent proliferation of drones and competing interests, the regulatory and legal landscape is still evolving and far from settled. AUGUST 2016 PA TownshipNews 51

3 THE TROUBLE WITH DRONES Municipal regulation allowed by the FAA includes: A requirement for police to obtain a warrant before using a drone for surveillance. A prohibition on the use of drones for voyeurism. Prohibitions on the use of drones for hunting or fishing or to interfere with or harass someone who is hunting or fishing. Prohibitions on attaching firearms or similar weapons to drones. State and local governments passing drone regs Despite the FAA s pre-emption warning, state and local governments throughout the country have either Drones have become very popular with amateur hobbyists, who see the unmanned aircraft as a new source of recreational entertainment. However, unskilled users may lose control of their drones, crashing them into people or property and causing injury. passed or are considering legislation restricting and regulating the operation of drones. According to the National Conference of State Legislatures, 45 states considered 168 drone-related bills in Cities, such as Los Angeles, Chicago, and Pittsburgh, have placed operational restrictions that differ from the FAA regulations. Pittsburgh passed an ordinance last October prohibiting the operation of a drone or any other mechanized or motorized devices within, above or in the vicinity of public parks. Previously, the city code had prohibited the operation of motorized model airplanes. Another municipality, East Goshen Township in Chester County, passed a more expansive ordinance last March prohibiting the operation of a model aircraft, amateur rocket, or other flying objects of a similar nature at an elevation of less than 200 feet over property not owned by the operator without the permission of the property owner. The township defines a model aircraft as any unmanned aerial vehicle, including without limitation, model airplanes, remote-controlled aircraft and drones, and the equipment associated with such unmanned aerial vehicle. Research to date has not disclosed any instance where someone has filed suit challenging a municipal drone ordinance although such a challenge is not far off. At the state level, according to reports from the LNP Media Group, Pennsylvania Game Commission officers have cited drone operators for entering wildlife propagation areas and harassing wildlife, violations that carry fines up to $1,500. The report also notes that the commission is considering 52 PA TownshipNews AUGUST 2016

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5 THE TROUBLE WITH DRONES regulations making it illegal to operate an unmanned aerial vehicle of any size, design, or specification for any purpose whatsoever over lands or waters designated as state game lands. Drone litigation Landowners do not have an absolute right to the airspace above their property. The Restatement (Second) of Torts, reflecting a 1946 Supreme Court case, United States v. Causby, recognizes a trespass by aircraft if it enters into the immediate reaches of the airspace next to the land and interferes substantially with the owner s use and enjoyment of his land. In Causby, the Supreme Court had held that an aircraft flying over a property at 83 feet was trespassing. With so many drones in the air these days, many people are concerned about the invasion of privacy, either through audiovisual snooping or data collection. The first reported case to deal with conflicting state and federal drone laws, Boggs v. Merideth, No. 3:16-cv (W.D. Ky. Jan. 4, 2016), is pending in Kentucky federal court. At issue is the tension between state privacy laws and the free navigation of drones. In this case, the plaintiff, John David Boggs, is seeking a declaratory judgment and damages against the defendant, who shot down Boggs s drone as it allegedly flew 200 feet over his property. A Kentucky district court judge ruled that the defendant was within his rights to shoot the aircraft. Boggs is asking the federal court for a judgment that the federal law governing aircraft pre-empts an individual s right to remove a drone from his property. Under Kentucky law, a landowner may use physical force upon another person when the person believes that such force is immediately necessary to prevent the commission of criminal trespass. Federal law, however, prohibits the destruction of aircraft in the navigable airspace. The court has not yet rendered a decision. Municipalities considering drone legislation should limit themselves to those ordinances that fall within the traditional police power of municipalities as recognized by the Federal Aviation Administration. The FAA strongly discourages the creation of conflicting laws regulating aircraft operation, regardless of size, that are pre-empted by the federal regulations. This is a rapidly evolving area of the law as the Federal Aviation Administration attempts to balance technological innovation and economic interests with the safety and privacy of people and their property. F 54 PA TownshipNews AUGUST 2016

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