March 10, 2017 by Robert Sepler
Licensing and Regulation
There’s a buzzing in the air, and it’s not bumblebees. The Federal Aviation Administration (FAA) estimates that the number of drones purchased in the United States for recreational use will grow from 1.9 million in 2016 to as many as 4.3 million by 2020. Similarly, the FAA estimates that the number of drones purchased for commercial use will grow from 600,000 in 2016 to 2.7 million by 2020.
This means that Washington’s local governments could soon be dealing with a dramatic increase in drone activity—and related accidents. This blog post will provide a quick overview of what local governments in Washington can and cannot do to regulate drone use in their jurisdiction.
What Can Local Governments Do?
Local governments are generally free to regulate the use of drones in their jurisdiction in at least three ways.
First, local governments clearly retain the authority to regulate their own use of drones. Here are some examples of jurisdictions that have chosen to regulate their own use of drones:
(If your jurisdiction is considering adopting a policy regulating its own use of drones, then the state Office of Privacy and Data Protection has put together Guidelines for Unmanned Aircraft Systems that you may find helpful.)
Second, local governments may prosecute drone operators if their use of drones violates a law of general applicability (e.g., laws protecting privacy, nuisance laws, etc.).
Third, local governments may regulate the use of drones within their jurisdictions through their police power. However, the permissible extent of such regulations is unclear at this time. According to a 2015 Fact Sheet, the FAA has taken the position that the following types of local police power regulations would not be preempted under federal law:
- Requirement for police to obtain a warrant prior to using a drone for surveillance.
- Prohibitions on using drones for voyeurism.
- Prohibitions on using drones 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 drones.
What Can’t Local Governments Do?
According to the FAA, federal law, which authorizes the FAA—and not state or local governments—to promulgate regulations to ensure the safe and efficient use of the navigable airspace within the United States, likely preempts the following types of local regulations:
- Restrictions on drone flight altitude or flight paths.
- Regulations banning the use of drones, such as within city limits, within the airspace of the city, or within certain distances of landmarks.
- Mandates requiring certain equipment or training for drone operation.
- State or local drone registration laws.
What’s on the Horizon?
Having adopted rules governing the use of drones for commercial purposes, as well as rules requiring drone registration, the FAA does not appear to currently be engaging in any new major rulemaking relating to drones.
In contrast, at least three bills relating to drones are being considered this session in the Washington State Legislature:
- HB 1031 proposes to explicitly add drones to the types of objects prohibited under state law from approaching a southern resident orca whale. (Note: AGO 2016 No. 8 concluded that state law already prohibits drones from approaching within 200 yards of a resident orca whale.)
- HB 1049 would generally make it a civil infraction for an individual to operate a drone without federal authorization or to operate a drone over real property without consent. The bill would also create a cause of action for trespass against a drone operator flying a drone over real property without consent.
- HB 1102 would prohibit state agencies from acquiring or operating drones without approval from the Legislature. It would also prohibit local governments from acquiring or operating drones without approval of their governing bodies. The bill also proposes to exclude evidence collected by drones from court, legislative, or regulatory proceedings if certain requirements are not met.
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