Nearly every unit of local government will encounter questions relating to drones, or “Unmanned Aerial Systems” (UAS), in the near future. The recreational use of drones, frequently in the form of small camera-equipped “quadcopters,” has expanded exponentially over the past couple of years. The Federal Aviation Administration (FAA) estimates that, in 2016 alone, 2.5 million drones will be sold in this country. The commercial use of UAS, although frequently the subject of news stories, has developed at a slower pace due to strict FAA regulations limiting non-recreational drone operations.

On August 29, 2016, however, the rules of the game changed. A new civil UAS rule took effect that makes it much easier for individuals and businesses to obtain permission to use drones. For municipalities and other governmental entities, there are challenges and benefits associated with this new landscape. The myriad implications of increased UAS use are far beyond the scope of this article. Of great significance to municipalities is what the FAA is not doing with its new rule: it is steering clear of a wide variety of areas typically subject to state or local control. In many respects, municipal leaders retain the authority to regulate drone use in their communities.

History and Basics of the New Rule

The FAA generally classifies drone operations as either civil (non-governmental) and public (governmental). At the behest of Congress, it separately treats drones used privately for purely recreational purposes as “model aircraft.” The new rule does not affect this classification, which will continue to allow hobbyists to register and fly drones weighing less than 55 pounds, with certain restrictions. The vast majority of UAS operations thus far encountered by local governments fit into the recreational/model aircraft category. Mishaps of all kinds, caused by adults and children, have accompanied the increasing use of drones for recreational purposes. In an effort to impose some level of accountability, the FAA now requires recreational UAS operators to register their drones online with the agency. The process is voluntary, however, and compliance has been far from universal. Unfortunately, the poor judgment and immaturity of a few operators continues to plague the recreational use of drones.

While hobbyists were flying their drones at will, anyone seeking to utilize these same devices for business purposes was, until August 29, 2016, banned by FAA regulation from doing so. Recognizing the inequity of the situation, the FAA developed a process whereby would-be commercial operators could obtain an exemption to the ban (referred to as a “Section 333 Exemption”). The exemption application process was a complicated and arduous one. It typically took 120 days and, even if granted, flights could only be conducted by a licensed airplane pilot. As one might expect, few small business owners possessed the resources or patience to commit to hiring a pilot or training for months in a Cessna. Nevertheless, certain determined business sectors incorporated drones into their operations through Section 333 exemptions. The agriculture, photography, infrastructure inspection, and real estate industries are a few of the most notable examples. Further expansion of commercial UAS required a more permissive regulatory environment.

The FAA’s new rule, Title 14 of the Code of Federal Regulations part 107, is referred to as the “Small UAS Rule” or, more commonly, “Part 107.” Part 107 represents the first significant effort to incorporate civil UAS into the national airspace. The process was a long one, first initiated by the FAA Modernization and Reform Act of 2012, which directed the Secretary of Transportation to prepare a comprehensive plan and proposed regulations for governing the civil use of drones. In February 2015, the FAA introduced its long-overdue proposal. After a protracted period of public comment and re-writing, the final rule was announced on June 21, 2016. As stated above, it became effective on August 29, 2016.

Part 107 dispenses with the need for formal pilot training. Instead, applicants 16 years of age or older must earn a “remote pilot certification” by passing an FAA-administered aeronautical knowledge test and a Transportation Security Administration background screening. The exam is administered electronically, and the FAA predicts a 90% passage rate assuming 20 hours of preparation. Certified remote pilots are free to operate UAS for commercial or recreational purposes. Over 3,300 people signed up for the test on the first day.

Part 107 further requires that participating drones be registered, weigh less than 55 pounds, and fly below 400 feet at groundspeeds not to exceed 100 miles per hour. Unless a specific waiver is granted, UAS operations must take place within the “visual line of site” of the operator during daylight hours, and not over people uninvolved in the flight. Notably, the new rule permits the transportation of cargo for compensation, so long as the drone remains within the visual line of site of the operator, does not cross state lines, and does not bring the total weight of the drone above 55 pounds. The “visual line of sight” requirement for cargo delivery means that Amazon and other retailers, who have expressed the intention of providing such services, will continue to lobby for further amendments to the rule.

State and Local Regulation

In December 2015 (several months before enactment of Part 107), the FAA estimated that 11 million commercial drones will be sold by 2020. Combined with the millions of consumer drones crisscrossing our nation’s skies, it is clear that local governments will need to plan for addressing drone-related incidents in the coming years. In so doing, they must recognize the dividing line between the FAA’s area of influence and their own.

Federal law affords the FAA with the exclusive authority to regulate use of the national airspace. This makes sense. Allowing states or municipalities to pass their own laws affecting navigable airspace could lead to a “patchwork quilt” of varying requirements that would hamstring cross-country aviation in our country. That being said, laws traditionally related to state and local police power, such as land use, zoning, privacy, trespass, and law enforcement operations, are beyond the FAA’s reach. Part 107 recognizes these limitations and, thus, permits state and local authorities to regulate certain aspects of UAS operations.

The land use and zoning powers, if utilized for the purpose of protecting persons or property, should allow for ordinances prohibiting or otherwise regulating take-offs and landings from certain designated locations. For example, municipalities are likely free to prohibit drone flights originating and concluding on or around school property and playgrounds, lest children be placed at unnecessary risk. Property rights and privacy concerns also seem ripe for state and local legislative activity. Neighbor-on-neighbor disputes caused by drone overflights are becoming common. Privacy questions relating to law enforcement’s use of drones are more profound, as they implicate constitutional rights. In recognition of this potential problem, the State of Illinois passed a law designed to limit police departments’ use of UAS. The Freedom from Drone Surveillance Act, 725 ILCS 167/1, in effect since 2014, generally prohibits the use of drones for aerial surveillance without a search warrant.

Local Government Uses

Much like they are for business, drones are providing municipalities with opportunities to improve the services they provide. Real-time aerial views afford increased capabilities to first responders. For example, drones using cameras and thermal imaging technology provide fire departments with the ability to better deploy personnel and equipment while fighting fires. Search and rescue personnel are benefiting from drone use, particularly in areas with vast or challenging terrain. Police uses, although limited by civil liberty concerns, are still many. Applications previously reserved for helicopters can be performed far more cheaply, and likely more safely, through UAS.

Part 107 is not intended to apply to local governments, but can. Until recently, the FAA required governmental entities to obtain a blanket public “Certificate of Waiver or Authorization” (COA) for UAS use. Although similar to the old Section 333 exemption process requiring a licensed pilot, public COAs allow applicant municipalities to self-certify their pilots and to obtain greater freedom of use if emergency circumstances warrant it. According to the FAA, public entities now have the option to fly under Part 107. This is a tempting alternative, since it relieves municipalities of the need for licensed aircraft pilots.

No matter the use for drones contemplated, local governmental officials must remain cognizant of citizens’ unease with these devices. A gradual introduction of these systems may, depending upon the municipality, quell fears of government overreaching until such time as commercial drones are more readily visible in our nation’s skies.

Conclusion

Local governments will be challenged in the years ahead to address the sea change in commerce, recreation, and municipal services afforded through the rapid development of UAS. Part 107, having removed a number of restrictions to drone use, may cause municipalities to consider enacting restrictions of their own. In light of the FAA’s exclusive authority in the skies, they may consider ground-based restrictions for public safety purposes. They may even find that municipal drone use enhances their public safety capabilities. If you need advice about how best to negotiate the new regulatory landscape, please contact us at any time.