Time for Congress to Support Drone Federalism to Benefit the Nation

COMMENTARY Government Regulation

Time for Congress to Support Drone Federalism to Benefit the Nation

Aug 28th, 2017 3 min read

Commentary By

Jason Snead @JasonWSnead

Policy Analyst, Meese Center for Legal and Judicial Studies

John-Michael Seibler

Legal Fellow

The policies in the Drone Innovation Act are a step in the right direction. iStock

Key Takeaways

The Drone Innovation Act would establish federal control over a national “sky-highway” beginning 200 feet above ground level.

Local governments, meanwhile, would be empowered to adopt reasonable time, place, and manner restrictions to govern drone operations below 200 feet.

The time has come for Congress to affirmatively declare that total federal preemption would be the wrong approach.

The last decade has seen phenomenal innovation in drone technology. Hundreds of thousands of law-abiding hobby fliers have taken to the skies with enthusiasm. The future for drones — and their potential impact on the U.S. economy — seems limitless.

But it could all come crashing down. Last week, both the House and Senate unveiled their long-awaited Federal Aviation Administration (FAA) reauthorization bills. Both contain lengthy sections on unmanned aircraft systems, including many good policy proposals.

But when it comes to crucial questions of airspace property rights, free-market competition, and federalism, both pieces of legislation fall into a familiar Washington trap: they rely too heavily on top-down regulatory solutions that risk stagnating a nascent industry and denying citizens a voice in the development of common-sense drone rules in their own towns and above their own property.

Fortunately, bipartisan coalitions in both chambers have drafted smart legislation to correct this. Last week, Reps. Jason Lewis (R-Minn.), Julia Brownley (D-Calif.), Todd Rokita (R-Ind.), John Garamendi (D-Calif.), and Grace Napolitano (D-Calif.), introduced the Drone Innovation Act, which Steve Forbes wrote an analysis of in The Hill.

Like the Senate’s Drone Federalism Act, the Drone Innovation Act would establish exclusive federal control over a national “sky-highway” beginning 200 feet above ground level, which large-scale commercial operators could use for activities like drone package deliveries.

Local governments, meanwhile, would be empowered to adopt reasonable time, place, and manner restrictions to govern drone operations — with guidance from experts at the federal level — below 200 feet. Communities would be empowered to develop robust policies that fit their unique needs.

For example, establishing drone speed limits, restrictions above local parks, defining acceptable hours of operation, and prohibiting people from flying drones mere feet above constituents’ backyards without the permission of property owners.

Some have loudly proclaimed that such a policy would lead to a “patchwork” of rules that technology companies could never hope to navigate. Total federal preemption is needed, the argument goes, or the industry will suffer.

This patchwork argument is overblown. Just look at modern maps applications like Waze and Google Maps. They can navigate a driver from Washington to Seattle, complete with road closure alerts, tolls, and speed limits across a patchwork of thousands of jurisdictions. They even tell you what lane to be in as you turn.

Some of these same companies are developing cars that can drive themselves on any road in the world. The argument that it is impossible to do for a two-pound drone what companies are doing today for 2,000-pound cars strains credulity.

In fact, the FAA’s current all-federal approach has led to regulatory delays and cumbersome restrictions on drone development that have pushed drone development overseas. Doubling down will hardly improve thing.

Nevertheless, some parties are taking to the courts hoping to force preemption through federal lawsuits. A 2016 Newton, Massachusetts ordinance banned operating drones below 400 feet over private property without permission from the property owner. Michael Singer sued the City of Newton in federal court arguing that the ancient practice of asking your neighbor before barging onto their property is unconstitutional, and the city “doesn't have the authority to regulate drones.”

Another drone owner is threatening to sue Evanston, Illinois, seeking to throw out a similar ordinance. One Evanstonian and his attorney now “argue that only the Federal Aviation Administration, not local governments, has the authority to regulate use of airspace,” and want the ordinance to go.

These lawsuits assert that drone operators should be able to fly wherever they want and nobody except a distant bureaucrat — not local police, and certainly not property owners — should be able to stop them.

Commercial drone operations will need clear rules of the road to function, and there is a role for the FAA to play in facilitating development of those rules, and protecting clear federal interests like manned aviation and the safety of the navigable airspace. The Drone Innovation Act preserves this function. The question is, will states, localities, and tribes have any say? Or, will we be stuck with one-size-fits-all policies from Washington?

The time has come for Congress to affirmatively declare that total federal preemption is the wrong approach. The policies in the Drone Innovation Act are a step in the right direction. If Congress delays, the next time legislators consider the issue, they may discover that the decision has been made without them.

This piece originally appeared in The Hill on 6/27/17