Aviation attorney: FAA had to assert its regulatory authority

By Patrick C. Miller | December 31, 2015

An attorney and assistant aviation law professor believes that the U.S. Federal Aviation Administration was forced to defend its regulatory turf on unmanned aerial systems (UAS) because many cities and municipalities are passing their own conflicting laws.

Sarah Nilsson, a pilot and flight instructor teaching aviation law at the at Embry-Riddle Aeronautical University campus in Prescott, Arizona, said the fact sheet the FAA issued in mid-December stating its federal responsibility in the UAS regulatory area was long overdue.

“I think it’s because they’re seeing a trend with local governments making these ordinances,” she said. “Many cities and municipalities are passing ordinances contrary to what the FAA is allowing people to do.”

The FAA said the document “provides examples of state and local laws affecting UAS for which consultation with the FAA is recommended, such as restrictions on flight altitude or flight paths, regulation of the navigable airspace, and mandating UAS-specific equipment or training.”

Brian Wynne, president and CEO of the Association for Unmanned Vehicle Systems International (AUVSI), issued a statement welcoming the FAA’s action and encouraging governments to reach out to the organization guidance.

“We are pleased the FAA has asserted its authority over the national airspace, which AUVSI has called for several times,” he said. “Some recently proposed state and local legislation potentially conflicts with this federal jurisdiction, which would create a complicated patchwork of laws and ordinances and cause more confusion in the process.”

Nilsson referred to a recent ordinance passed by the city government in Paradise Valley, Arizona, which banned drones to protect privacy. Los Angeles, Chicago and Miami have also passed laws placing stringent restrictions on drone use.

Describing aviation law as a niche field, Nilsson said cities and municipalities passing UAS laws without consulting an aviation attorney will likely run afoul of the regulatory authority granted to the FAA by Congress.

She noted that the FAA fact sheet goes beyond stating the agency’s regulatory authority, but also cites the field preemption granted by Congress, meaning it’s the only law in the field that should prevail.

“They mention this for a couple of reasons,” Nilsson explains. “If you have multiple states doing different things, it makes it difficult for anyone to fly across state lines in a consistent manner—it’s difficult and cumbersome. The other reason they make this point is that it’s also unsafe. What one state or county or city may allow, another may not, and then it becomes very unsafe for someone to operate.”

Nilsson said the FAA also wants state and local governments to understand that they can’t change UAS regulations issued by the agency.

“The FAA is very adamant that cities don’t do anything restricting airspace flying or changing the distance UAS are allowed from airports,” she said. “States also can’t make mandated requirements for instrumentation or training of pilots. Those are the things they have to defer to the FAA on.”

Wynne called on the FAA to continue its work on integrating UAS into the national airspace and finalizing the small UAS rule.

“Putting the rule in place will provide a clear regulatory framework around UAS, eliminating the need for states and municipalities to fill the void,” he said.


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