Drones: Whether Local Governments Can Regulate Unmanned Aircraft

Throughout the country, law enforcement, businesses, and private citizens have begun to use drones—or have considered doing so—for a variety of purposes. This raises important issues, including how local governments in Washington State can or should regulate the use of this new technology.

Wait, don’t the feds regulate aircraft?

Under federal law, the United States Government has exclusive sovereignty over U.S. airspace, and the Federal Aviation Administration (“FAA”) has general authority to regulate aircraft within the navigable U.S. airspace. Citing this authority, the FAA has issued several policy statements regarding the use of drones. The FAA has asserted that “no person may operate a [drone] in the National Airspace System without specific authority.” (The FAA defines the "National Airspace System" as "The common network of U.S. airspace; air navigation facilities, equipment and services, airports or landing areas; aeronautical charts, information and services; rules, regulations and procedures, technical information, and manpower and material.") 

What specific authority is required to operate a drone depends on what the drone is being used for:

• The public or governmental operation of drones requires a Certificate of Waiver or Authorization (“COA”) from the FAA;
• The civil or commercial operations of drones generally requires a Special Airworthiness Certificate (“SAC”) from the FAA; and
• The recreational operation of drones and model aircraft generally does not require permission from the FAA, with a few exceptions.

Congress has directed the FAA to promulgate rules by September 2015 to integrate the use of commercial drones into U.S. airspace. Following this directive, the FAA recently proposed a framework of regulations that would allow routine commercial use of certain drones in U.S. airspace without the operator obtaining a SAC from the FAA. The FAA’s current drone policies will remain in place until the FAA implements a final new rule.

Room for local regulation

Despite the federal government’s general sovereignty over U.S. airspace, it is not entirely clear whether the FAA has exclusive authority to regulate low-altitude drone flight. The U.S. Supreme Court has held that, although high-altitude aircraft do not interfere with a landowner’s property rights, low-altitude flights by aircraft above their property can interfere with property rights; in essence, property rights extend to some low-altitude airspace. However, the Supreme Court did not clearly define the maximum altitude to which these property rights extend. 

Given the legal landscape, local government still retain the power to regulate the use of drones in their jurisdiction in at least two ways:

1. Local governments clearly retain the authority to regulate their own use of drones. For example, Seattle now requires the approval of the city council before city departments can purchase drones and other types of surveillance equipment.
2. 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.).

In addition, there is strong evidence to suggest that local governments could use zoning ordinances to regulate the locations from which drones may be launched, landed, or operated, just as they can regulate other activities that impact neighbors but are unlikely to affect those living outside of the jurisdiction. However, we at MRSC are not currently aware of any court decision or state or federal law that explicitly grants a local government this power.

This is a new and rapidly changing area of law. Besides Seattle, we are unaware of any other local government in Washington State that has attempted to regulate drones in any way.

 Photo courtesy of Don McCullough.