Southern California may soon have more than a few problems with drones. Last week, the U.S. House passed legislation reauthorizing the Federal Aviation Administration. Among its many problematic provisions is one that would limit local authority to address community concerns about drones.
Drones have tremendous potential — from delivering emergency medical supplies to protecting wildlife. Earlier this year, for example, a mountain lion roamed an Azusa neighborhood until local police subdued it after stalking it with a drone.
But drones have a dark side, too. The Oceanside Police Department recently bought counter-drone equipment, partially due to drone interference with firefighters last year. Drones have a number of criminal applications, from delivering contraband into prisons to ferrying drugs across the U.S.-Mexico border.
But as Congress develops federal drone legislation, it risks leaving the management of local concerns about low-altitude drone operations in your neighborhoods — good and bad — to federal bureaucrats in Washington, D.C.
That poses serious headaches for property owners, businesses and consumers.
For example, Congress is considering requiring federal air carrier certification for anyone to enter the drone delivery business. That would burden a nascent industry with a costly and complex regulatory scheme. More importantly, it would block states and localities from setting and enforcing reasonable rules for drones operating mere feet off the ground, in their own communities.
Federal regulations known as Part 135 require companies that transport passengers or property for hire, across state and national borders, to obtain a certificate from the FAA and follow detailed federal operating rules. That may make sense in the high-altitude, high-risk, and logistically complex world of manned air traffic.
But drones operate almost exclusively at low altitudes, where airplanes cannot and do not fly. This raises countless local concerns, from whether drones should be flying over a local football game to nuisances caused by drones buzzing over backyards at all hours of the day and night.
On local issues, communities will want — and need — a say. Yet, another federal law, 49 U.S. Code § 41713, bars states from passing any laws “related to a price, route, or service of an air carrier.” That butts up against states’ inherent police powers to regulate conduct within their communities, inches off the ground.
Could localities establish local drone traffic rules, such as speed limits and no drone zones? What about nuisance ordinances addressing noise, light, and other environmental concerns? Or, zoning rules, use of private property, or the ability of local police to protect public assemblies?
Under federal air carrier rules, many of those local issues might come under congressional or FAA control.
Too many stories of federal regulators meddling in, and ultimately eroding, property rights, suggest that would be misguided, to say nothing of the huge burden drone micromanagement would place on agency personnel. Even atask group convened by the FAA to study drone issues reached “the general conclusion recognized by all participants that there ought to be reasonable time, place and manner regulations implemented at the state and local level.”
Local authorities are not infallible, but they have the direct accountability and knowledge of local conditions that are necessary to regulate local concerns.
Few people would think to ask federal permission to set local speed limits, to restrict drone flights over local events, or to prevent drones from buzzing through neighborhoods at night. And they shouldn’t have to.
At the same time, most people would think to call local police if they encountered a drone threatening public safety. But there, too, federal law is problematic.
Currently, federal law renders most counter-drone efforts illegal. According to the FAA, just damaging a drone is a federal crime.
So where does that leave the Oceanside Police Department? Without special federal authorization, using their counter-drone device would violate rules issued by the Federal Communications Commission and, possibly, several federal criminal statutes.
Law enforcement and security officials must be prepared to address the eventuality that drones are used for criminal purposes. Congress should grant necessary exemptions to federal laws that impede first responders’ ability to protect the public.
States and localities can help to optimize benefits and reduce risks of new drone technologies. But Congress will need to respect our constitutional values.
This piece originally appeared in The Orange County Register