Cities And Counties Will Inevitably Have A Say In When And Where Drones Operate
On September 6, 2017 I was quoted in a lengthy and well-researched article in American City & County Magazine.
Here are some excerpts:
The FAA’s regulations “focus exclusively on federal aviation safety concerns,” the NLC report notes. Among the rules, which are readily available online, is the requirement that drone pilots operating under Part 107 must fly their drones no higher than 400 feet above ground level unless they are flying within 400 feet of a structure.
“I think the most difficult thing for Newton is that they chose to regulate airspace from the ground up to 400 feet above the ground,” says Greg McNeal, a professor of law and public policy at Pepperdine University and co-founder of drone software company AirMap.
McNeal’s comment references an item in Newton’s ordinance that mandates pilotless aircraft must not be operated “over private property at an altitude below 400 feet without the express permission of the owner of said private property.”
Plaintiff Singer argues in court documents that this rule, when applied with the FAA’s rule for Part 107, “would presumptively prohibit sUAS over most of the land area of Newton, Massachusetts.” Moreover, he argues that the FAA holds authority over at least part of Newton’s airspace below 400 feet above ground level.
So who exactly governs U.S. airspace? The simple answer is that there isn’t a definitive one.
Ian Gregor, public affairs manager for the FAA’s Pacific Division, writes that by federal law, the FAA has “sole jurisdiction over the nation’s civilian airspace.”
McNeal however, argues that the areas of airspace the FAA has sole jurisdiction over are in fact, legally unresolved.
“The FAA has in different forums claimed to not have jurisdiction over areas where land use, zoning or the police power apply,” McNeal says. “In other forums, they have asserted much more widespread jurisdiction. No case has ever acknowledged authority down to the ground.”
McNeal likens the issue to cities trying to create drone activity rules within a box of “arguable federal preemption of any law they do.”
Privacy and trespass are only a few of the many regulatory issues that surround the local governance of private and commercial drone activities. Even drones without video cameras that fly over private property could constitute a privacy or property law concern, McNeal says.
While video cameras are now commonplace, the NLC report notes, “the scope of a drone’s perspective is often much larger with granular detail easily accessible.” The advent of superior filming technology opens up issues of privacy enforcement, since a pilot could be flying adjacent to a homeowner’s property but still looking inside their home, Swindell says.
“Enforcement is such a challenge with all of this that… privacy is almost a quaint question,” he notes. “But it’s also one that many people are very concerned about.”
Drones’ noise can also affect privacy, especially in densely populated areas, because drones would likely fly there. Swindell suggests that the noise created by lots of drones could also lower existing property values.
It’s a predicament that can play into larger aesthetic and character of the community issues, given potential noise complaints and the crowding of multiple drones in a small area of airspace.
“Local governments want to zone certain areas as residential,” McNeal says. “They want to zone others as commercial, and they want to have the ability to say what happens in those areas.”
Operational restrictions — or no-fly zones — are an issue that McNeal and Swindell agree are among the most pressing issues that local governments face in drone regulation.
McNeal offers the example of drone flight near Apple’s doughnut-shaped campus in Cupertino, Calif. Drones could fly beside the building and observe activity inside, as well as fly inside the inner area within the campus.
“[Apple employees] don’t want to wait until the drone is adjacent to the window or in the courtyard of the Apple campus… they want to be able to exclude the drone from the inner courtyard of the Apple campus in the same way that they can exclude you or I from walking into the inner courtyard without checking in at the front desk,” he says.
Such an exclusion would involve regulating an area of airspace. As local airspace regulation is currently a legally precarious action, legal experts recommend that city officials focus more on the ground if they deem it necessary to issue drone regulations in their communities.
The assumption is that by occurring on land, the takeoff and landing of a drone fall within land use or zoning authority, as well as potentially police power. A rule that looks like aeronautical activity regulation is less likely to be defensible than one that falls within local land use, zoning and police power, McNeal says.
The NLC ordinance uses similar phrasing to the ACC-OC ordinance, but it also uses the terms ‘operate’ and ‘operation’ in reference to reckless operation.
McNeal argues, however, that the line between preemption and permissibility isn’t clearly defined, citing the example of a regulation prohibiting drones from flying within “50 feet of a school playground while school is in session.”
“It’s still in the category of regulating airspace,” he admits. “But you’re on very strong ground to say, ‘there are a bunch of police power reasons why we want to do this’ — related to safety, related to nuisance, related to protecting the children.”
A counter argument to such a rule could be regulating harmful conduct instead of drone flight, he acknowledges. Issuing a rule such as his example, he argues, could prevent such harmful conduct from occurring.
Nevertheless, legal experts agree that governing conduct rather than issuing operation restrictions presents several advantages to cities.
“There are a bunch of other things [Newton] did that are reasonable,” McNeal says, highlighting Newton ordinance items prohibiting harassment with a drone and surveillance via a drone. “I might disagree on the policy judgment there, but it’s not clear to me that all of that would be considered unlawful.”
Rupprecht offers another perspective. “I think that Singer will win. I think that the court’s going to rule with that. Now, how narrowly will [the judge] rule and on what grounds, that’s going to be an interesting point.”
“The hard part is the higher you get in airspace restrictions, the more likely it is that airspace restriction will be challenged,” McNeal adds.
“In this political climate, to have bipartisan legislation in both houses of Congress and have an idea that has bipartisan support from the Obama Administration to the Trump Administration, just suggests to me the inevitability of state and local governments playing a bigger role in this,” McNeal predicts. “I think it’s an exciting time for cities and counties.”
Gregory S. McNeal
Along with being a successful entrepreneur, I am a tenured Professor of Law and Public Policy at Pepperdine University. I teach courses related to technology, law, and policy, and serve as a faculty member with the Palmer Center for Entrepreneurship.
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