On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).
Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government. Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce. For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions. Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions. The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts. They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.
Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.
The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant.