Attorney says new Tennessee UAS law might be unenforceable

By Patrick C. Miller | July 02, 2015

Among more than a dozen new laws that went into effect July 1 in Tennessee was one that makes it illegal to fly unmanned aerial vehicles (UAV) over fireworks displays, correctional facilities and events of more than 100 people. A drone operator convicted of violating the law could spend up to 30 days in jail.

James Mackler, a Nashville attorney with the Bone McAllester Norton law firm who specializes in unmanned aerial systems (UAS) law, said that while members of the Tennessee General Assembly’s hearts are in the right place, passing laws in response to specific UAV incidents might not be the best legal approach.

“A couple of incidents with stadiums is what got it started,” Mackler said. “As lawmakers were discussing how to regulate flights over public events, there was an incident over a jail, so they added jails. And then a guy flew his drone through the Nashville fireworks display a year ago, so they added that, too.”

According to Mackler, it’s not a situation unique to Tennessee. Other states are increasingly passing laws to regulate UAS which might conflict with the U.S. Federal Aviation Administration (FAA) regulations.

“What we’re having are state reactions to specific incidents with real questions about the states’ authority to regulate,” he said. “It’s a struggle to figure out who the appropriate law enforcement or regulatory authority is.”

For example, Mackler said the FAA already issues temporary flight restrictions (TFRs) over large public gatherings. States also have laws against reckless conduct, as well as smuggling contraband into jails.

“These are the things we need to regulate and criminalize,” he said. “But I question whether or not these state UAS laws are enforceable.”

The legal gray area arises in how navigable airspace is defined.

“In Tennessee, they’ve expanded the crime of criminal trespass to specifically include overflight by a drone, but they say only if it’s in non-navigable airspace not regulated by the FAA,” Mackler said. “That begs the question because the FAA claims to regulate all of the airspace of the drone flier, which suggests that the Tennessee law is entirely unenforceable.”

And, Mackler added, “States are passing laws that beg the question about whether they’re enforceable. No one has enforced them yet, so we don’t know.”

Part of the answer might lie with how the FAA regulates manned aircraft.

“We’ve established that the federal government is solely responsible for regulating the navigable airspace and that the states are responsible for what happens on the surface,” Mackler explained. “If we accept the fact that drones can navigate anywhere in the sky, then the FAA should impose regulations with criminal consequences for unmanned flights the same as they do for manned flights. But it needs to be clear what the FAA considers navigable airspace—whether it’s to the ground, 10 feet or 50 feet.”

Beyond that, Mackler said it should be up to the states to pass whatever UAS laws they believe to be appropriate.

“If a state wants to pass a law saying it’s a crime to operate a UAS in a manner that interferes with firefighting operations, great, they should,” he said. “That’s perfectly within their jurisdiction, and it’s a smart law. Everyone needs to stay in their lanes and pass laws that have real consequences.”


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