Municipal drone regulations put cities in legal crosshairs

Patchwork rules around the United States are one of the greatest threats to commercial drone operators. Even if a pilot is operating safely and correctly under federal laws, many states and municipalities have begun to pass their own rules, most of which, reach beyond their allowed powers.

The general regulatory framework regarding drones is that the FAA has jurisdiction over the National Airspace System (NAS), meaning they essentially are in charge from the ground up. Some will argue that property owners have airspace rights, but the cases they cite do not explicitly grant such rights. Cities and towns may be able to regulate they takeoff and landing of drones on property they own, but they do not currently possess the right to ban operation over such property. The FAA has already put in place rules about safe operation for commercially certificated remote pilots under 14 CFR 107 (Part 107). These rules address flights near airports, height restrictions, restrictions of flight over people and night flights, weight limitations, and flight within visual line of sight. All of these specific rules have mechanisms for either waiver or authorization to operate outside their bounds.

What many local governments do not realize is that their have been cases, though not controlling in many jurisdictions, where the federal courts have ruled against specific requirements around drone registration and flight restrictions. Essentially, the federal laws preempted the local laws, meaning the local laws could not be enforced because of their contradiction with federal laws already in place.

In another case, late in 2018, a drone operator in Flint, Michigan was flying in a County Park, and was approached by park police who arrested him and confiscated his drone based on rules they had passed. Michigan has state level preemption laws in place to prevent localities from making such laws. The arrest was invalidated and the equipment returned. In the wake of that, the Parks Commission reworded their rule to specifically apply to drones, and now, they are being sued so that a judge may rule that their law is invalid based on the state level law.

All of this is to say that passing laws limiting the commercial use of drones at a municipal level is very precarious. This patchwork of legislation also makes it very hard for commercial drone operators to work. Drones are not only being used to promote properties for sale and help local businesses tell their story. Drones are a part of large scale infrastructure inspections like power lines in California in the wake of their historically devastating wildfires. First responders are finding many uses for aerial views as well. So, if you live somewhere thinking about limiting drone use, maybe think twice and consult legal counsel before thinking you are protecting privacy.