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Presenting a live 90-minute webinar with interactive Q&A

Municipal Regulation and Use of Drones: Navigating New FAA Rules and Federal Preemption

Leveraging Opportunities and Overcoming Challenges of Unmanned Aerial Vehicles

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, JANUARY 24, 2017

Derke J. Price, Equity Partner, Ancel Glink Diamond Bush DiCianni & Krafthefer, Naperville, Ill. Jeffrey Antonelli, Antonelli Law, Chicago Joanna L. Simon, Morrison & Foerster, San Diego

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Municipal Regulation and Use of Drones

Navigating New FAA Rules and Federal Preemption

Joanna Simon JoannaSimon@mofo.com Jeff Antonelli jeffrey@antonelli-law.com Derke Price DPrice@ancelglink.com

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Drone Technology and Uses

• Incredibly varied commercial uses

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Drone Technology and Uses

• Incredibly varied municipal uses:
• Blue light – police, fire, security
• Construction/building
• Infrastructure/civil
• Agriculture
• Conservation

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Drone Technology and Uses

• Varied hardware and software for different goals

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FAA 2007 Drone Policy

• Bottom line: FAA views drones

as aircraft, so aircraft rules apply.

• “No person may operate a UAS

in the National Airspace System without specific authority.”

• “All drone operators . . . must

apply directly to the FAA for permission to fly.”

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FAA Modernization Act of 2012

• FAA tasked with developing a

plan for “safe integration” of UAS into the NAS

• Mandated that the FAA issue a

final rule on integrating “small” UAS into the NAS by August 2014

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Section 333 Exemption

• Standard Conditions
• Pilot’s License (Private or Sport)
• Operations at speeds less than 45 knots
• No higher than 400 feet above ground level
• UAS must be within visual line of sight (VLOS)
• Operations require a visual observer
• Comprehensive preflight inspection of UAS before flight
• Pilot training program and experience requirements
• Flight must be 5 miles from an airport
• Permission from landowner must be obtained
• FAA approved flight manuals and maintenance manuals

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Part 107

• The FAA issued the sUAS rule, Part

107, on June 21, 2016

• Part 107 effective on August 29, 2016
• Section 333 exemptions still valid

until expiration, which is typically two years after date of issuance

• Operators must choose to operate

under Part 107 or their Section 333 exemption for each flight; no mixing and matching

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Government Operations

• Can operate under Part 107 or apply for a public aircraft Certificate of

Waiver or Authorization (“COA”)

• COA is an authorization issued by the Air Traffic Organization to a

public operator for a specific UA activity

• FAA conducts a comprehensive operational and technical review.
• If necessary provisions or limitations may be imposed as part of the

approval to ensure the UA can operate safely with other airspace users.

• In most cases, FAA will provide a formal response within 60 days from

the time a completed application is submitted.

• Public aircraft operators such as law enforcement agencies,

state or local governments, or public universities may continue to operate under the terms of their COAs if they already have

• ne.

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Government Operations

• Publicly released COAs available

for review. https://www.faa.gov/uas/resour ces/foia_responses/

• Examples:
• California Department of Forestry

and Fire Protection

• Gadsen, Alabama Police

Department

• Grand Forks Sheriff Department
• Lorain County Community College,

Ohio

• Medina Ohio Police Department

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Part 107: Preflight Inspection

• § 107.49: Remote pilot in

command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation.

• Local weather
• Local airspace
• Location of persons and property
• Other ground hazards
• Ensure control links work
• Ensure adequate power
• Ensure payloads are properly attached
• Preflight checklists are available
• nline from manufacturers and
• ther resources

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Part 107: Operator

• Establishes a remote pilot in

command position

• Must pass initial aeronautical

knowledge test or an initial training course if hold a pilot certificate

• Must be vetted by TSA
• Must be 16 years old
• Comply with registration

requirements

• Reporting obligations (10 days if

serious injury, loss of consciousness

• r property damage of $500)

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Part 107: Operator

• § 107.73: Initial knowledge test covers, among others:
• Regulations and airspace classifications
• Aviation and weather sources
• sUAS loading
• Emergency procedures
• Crew resource management
• Radio communications procedures
• Airport operations
• Maintenance and inspection
• Airman knowledge Testing Centers:

https://www.faa.gov/training_testing/testing/media/test_centers.p df

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Part 107: Operational Limitations

• Operational limitations
• Less than 55lbs including payload
• VLOS
• Not over uninvolved people
• Daylight only
• Class B, C, D and E airspace with ATC permission
• Class G airspace no ATC permission required
• Transportation of property for hire if: total under 55lbs, VLOS and

not from a moving vehicle

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Operational Limitations: Airspace

• Part of the initial knowledge test: OK in Class G; Class B, C, D and E

airspace with ATC permission

• https://www.faasafety.gov/gslac/ALC/course_content.aspx?cID=42

&sID=505&preview=true

• Use available tools to help: B4UFLY / AIRMAP

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Operational Limitations: Tools

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Operational Limitations: Tools

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Operational Limitations: Tools

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Operational Limitations: Tools

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Part 107: Waivers

• Restrictions that can be

waived:

• Operation from a moving

vehicle or aircraft

• Daylight operations.
• VLOS.
• UAS to Pilot Ratio
• Operating limitations
• Request a waiver:

https://www.faa.gov/uas/reque st_waiver/

• Instructions:

https://www.faa.gov/uas/reque st_waiver/media/instructions.p df

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Two Groups of Issues

1: Regulating drone use by others 2: Governmental use of drones

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Ever Growing Number of Conflicts

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Actual Prison Smuggling Attempt

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Supplemental Regulations

• State

− Hunting; Law Enforcement

• Local Ordinances (including Zoning)

− Municipalities/Park Districts/Special Districts

• Common law
• Civil: trespass
• Criminal: unreasonable searches

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Regulating Commercial Uses Recreational Uses

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Zoning and Land Use

• Commercial Drone Ports
• Zoning powers probably still in place

Attract Development

v. Impact on surrounding property owners

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Nuisance

• Public nuisances?(obstructs, damages, or inconveniences the

rights of the public)

Maybe drone surveillance

• Private nuisance (where deleterious effects are unrelated to

commerce)

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Personal (“Hobby or Recreation”)

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FAA RULES FOR MODEL AIRCRAFT

• Fly below 400 feet and remain clear of surrounding obstacles
• Keep the aircraft within visual line of sight at all times
• Remain well clear of and do not interfere with manned aircraft
• perations
• Don't fly within 5 miles of an airport unless you contact the airport and

control tower before flying

• Don't fly near people or stadiums (or over unprotected people)
• Don't fly an aircraft that weighs more than 55 lbs
• Don't be careless or reckless with your unmanned aircraft – you could be

fined for endangering people or other aircraft

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State of Illinois

• Public Act 98-402: Fish and Aquatic Life Code
• Prevents use of drones in any way that interferes with the

lawful taking of fish or wildlife.

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State of Illinois

• Drones with Cameras within the Scope of laws concerning

video recording.

−720 ILCS 5/26-4. Illinois law defines “video record” broadly to include “any videotape, photograph, film, or other electronic or digital recording

• f a still or moving visual image.” 720 ILCS 5/26-4(e)(2).

−prohibits knowingly making a video of another person without their consent in residence, hotel rooms, locker rooms, restrooms and changing rooms, etc. 720 ILCS 5/26-4(a)

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Eavesdropping Law

• Illinois was a 2-party state (both parties in the

conversation had to give consent) (exceptions for law enforcement)

• Struck down as too severe

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Reasonable Expectation

• The new eavesdropping law requires that all parties

involved in a “private conversation” give their permission to be recorded. Under the law, such a conversation is defined as any oral communication between two or more people in which the parties have a "reasonable expectation" the discussion will remain private.

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Local Regulation Use of Government Property

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Notion of Trespass

• “Heaven to Hell” gone
• Control of Airspace for own Use (US v. Causby)
• Reasonable Expectation of Privacy
• Quiet Enjoyment of Property (Nuisance)

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Policy Questions

• Complete Ban?
• Permits?
• Enforcement?

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LOCAL LEO INTERACTION

FAA published Law Enforcement Guidance for Suspected Unauthorized UAS Operations

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Group 2: I WANT ONE! (Use by Government)

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Governmental drone uses

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FAA Says:

14 CFR Part 107 Previously, get a certificate of waiver or a COA Now, not necessary (but available): Less than 55 pounds Remote Pilot in Command – requirements Operational Limitations (speed, height etc.)

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ILLINOIS 725 ILCS 167/1 Freedom from Drone Surveillance Act

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Freedom from Drone Surveillance Act

• Prohibits Use of Drones to gather information

−There are exceptions (Section 15) −Non-disclosure (w/ exceptions) −Evidentiary Penalties −Prohibits Use of Private Drones

• Drone Task Force recommendations due 7/2016

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Section 15 Exceptions

• Counter Terrorism (Homeland Security determination of

threat)

• Pursuant to search warrant (45 days)
• Exigent circumstances to protect life etc. (48 hrs max with

reporting requirement)

• Search for missing person (not a criminal investigation)
• Crime scene and traffic crash scene photography (private

property requires consent or search warrant)

• Disaster or Public Health Emergency

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Common Law

• Illegal Searches and Seizures – 4th Amendment
• Mosaic Theory

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FAA Position on Federal Preemption

Examples of State and Local Laws for Which Consultation with FAA is Recommended.

• Operational UAS restrictions on flight altitude, flight paths;
• perational bans; any regulation of the navigable airspace. For

example – a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight.

• Citations: City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International,
• Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town
• f Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d

1306 (6th Cir. 1969)

• Source:

https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf

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FAA Position on Federal Preemption

Examples of State and Local Laws for Which Consultation with FAA is Recommended.

• Mandating equipment or training for UAS related to aviation safety

such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework.

• Citations: Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS,
• Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007).

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FAA Position on Federal Preemption

Examples of State and Local Laws within State and Local Government Police Power

• Laws traditionally related to state and local police power – including

land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation.

• Citation: Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir.

2002).

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FAA Position on Federal Preemption

Examples of State and Local Laws within State and Local Government Police Power

• Requirement for police to obtain a warrant prior to using a UAS for

surveillance.

• Specifying that UAS may not be used for voyeurism.
• Prohibitions on using UAS for hunting or fishing, or to interfere with
• r harass an individual who is hunting or fishing.
• Prohibitions on attaching firearms or similar weapons to UAS

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Constitutional Law: Federal Preemption

So, where does the FAA get its preemption authority over local “drone laws?” Supremacy Clause, Article VI, Section 2:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

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Constitutional Law: Federal Preemption

Commerce Clause, Article I, Section 8: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” Dormant Commerce Clause, implied by Commerce Clause States are prohibited from passing legislation that will interfere with interstate commerce.

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Constitutional Law: Federal Preemption

Activities falling within the commerce clause

• Channels of interstate commerce;
• The instrumentalities persons or things in interstate commerce; and
• Those activities that substantially affect interstate commerce.
• Note: Federal regulation of intrastate activity is within the commerce

power only if the regulated activity “substantially affects interstate commerce.” US v. Lopez 14 U.S. 549, 115 S.Ct. 1624, 131 L.Ed. 2d. 626 (1995)

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Constitutional Law: Federal Preemption

Legislative and Administrative Sources of FAA Authority:

• 49 U.S.C. §§ 40103, 44502, and 44701- 44735 (former Federal

Aviation Act of 1958, as amended and recodified).

• FAA Modernization and Reform Act of 2012, Public Law No. 112-95

(Feb. 14, 2012), Subtitle B, “Unmanned Aircraft Systems.”

• Title 14 of the Code of Federal Regulations, Chapter 1.

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Constitutional Law: Federal Preemption

Three Types of Federal Preemption:

• Express
• Congress expressly forecloses state law in a statute.
• Conflict (implied)
• State law or regulation directly conflicts with federal law
• Field (implied)
• Federal regulation leaves no room for state regulation

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Constitutional Law: Federal Preemption

Express Federal Preemption

• 49 U.S. Code § 40103 - Sovereignty and use of airspace
• (a)(1) The United States Government has exclusive sovereignty of airspace of the

United States.

• However, “Nothing in the FAA expressly preempts state regulation of

air safety, so preemption, if any, must be implied.” Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007)

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Constitutional Law: Federal Preemption

Implied Field Preemption

• “We… hold that federal law occupies the entire field of aviation
• safety. Congress' intent to displace state law is implicit in the

pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety… While Congress may not have acted to occupy exclusively all of air commerce, it has clearly indicated its intent to be the sole regulator of aviation safety. The FAA, together with federal air safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states.” Montalvo v. Spirit Airlines, 508 F.3d 464, 473-474 (9th Cir. 2007).

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Constitutional Law: Federal Preemption

Implied Conflict Preemption

• Conflict preemption applies “where compliance with both federal and

state regulations is a physical impossibility,” and in “those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona v. United States, 132 S. Ct. 2492, 2501 (2012)

• Example of state “drone law” that could be subject to a conflicts

preemption lawsuit: A state is concerned with paparazzi drones spying on its celebrities and enacts a law prohibiting drone flights under 400 ft. AGL, directly conflicting with the FAA’s regulations allowing drones to operate in that airspace.

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Preemption questions and “drone laws”

• If a drone is operated entirely within a state and does not cross any

state boundaries, is it subject to federal law?

• In order to protect privacy, can a state use its police power / zoning

authority to prohibit drone flights in certain areas?

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State and Municipal Regulation

ALEC Model Legislation for States and Municipalities

Section 4. Authorization and Licensing A person that is authorized by federal law to operate unmanned aircraft systems may operate an unmanned aircraft system in this state for any lawful purpose if the unmanned aircraft system is

• perated in a manner consistent with federal law.

Section 5. Protection of Emergency Responders (1) An individual shall not operate an unmanned aircraft system in a manner that knowingly and intentionally interferes with the official duties of any of the following: (a) A police officer; (b) A firefighter; (c) A paramedic; or (d) Search and rescue personnel. (2) As used in this subsection, “interferes” means that term as defined in [State] penal code [concerning law enforcement interferences], [citations]. (3) An individual who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.

https://www.alec.org/model-policy/an-act-relating-to-unmanned-aircraft-systems-establishing-statewide-standards-protecting-privacy-and- ensuring-public-safety/

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State and Municipal Regulation

ALEC Model Legislation for States and Municipalities

Section 6. Protection from Privacy Invasions and Harassment (1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment or stalking. As used in this subsection, “harassment” means that term as defined in [State] penal code, [citations] and “stalking” means that term as defined in [State] penal code, [citations]. (2) A person shall not knowingly and intentionally operate an unmanned aircraft within a distance that, if the person were to be present personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order. (3) A person shall not knowingly and intentionally operate an unmanned aircraft system to capture photographs, video, or audio recordings of an individual in a manner that invades the individual’s reasonable expectation of privacy and that would constitute unlawful surveillance or invasion of privacy as those terms are defined in [State] penal code, [citations]. (4) An individual who is required to register as a sex offender under the [State sex offenders registration act] shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual’s sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual. (5) An individual who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.

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State and Municipal Regulation

ALEC Model Legislation for States and Municipalities

Section 7. Protection of Infrastructure and Facilities A political subdivision seeking to restrict, or limit the operation of unmanned aircraft in close proximity to facilities or infrastructure that it owns or operates shall apply to the Federal Aviation Administration for such designation pursuant to Section 2209 of the FAA Extension, Safety, and Security Act of 2016, Public Law No. 114-190. Prior to making an application for designation to the Federal Aviation Administration, the political subdivision shall hold at least one public hearing, on adequate notice to the public, concerning the proposed application. Section 8. Accountability of UAS Operators The State Aviation Director is designated to provide input to the Federal Aviation Administration to facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft, as contemplated by Section 2202 of the FAA Extension, Safety, and Security Act of 2016, Public Law No. 114-190