Earlier this month Rep. Lewis (R,MN) introduced
HR 2930,
the Drone Innovation Act of 2017. The bill would require the Department of
Transportation to publish policy guidelines outlining State and local
governments ability to regulate the operation of small unmanned aircraft
systems (UAS). In many ways the bill is similar to
S
1272, but it is in no way a companion bill.
Local Operation
In §2
of the bill the terms ‘local operation’ and ‘local in nature’ are defined. They
are the key, in this bill, to establishing in what areas State and local
governments may regulate UAS operations. The mutual definition of these terms
refers to flights or portions of civil unmanned aircraft flights that occur in
airspace {§2(3)}:
• Up to 200 feet above ground
level; and
• Within the lateral boundaries of a State, local, or
Tribal government’s jurisdiction.
Policy Guidelines
Section 3 outlines the framework that DOT is required to develop
to help standardize (as much as possible) State and local rules with regards to
“reasonable time, manner, and place limitations and other restrictions on
operations of civil and small unmanned aircraft that are local in nature” {§3(b)(1)}. Additionally,
the section outlines the limits on future federal rulemaking so as to “preserve
the legitimate interests of State, local, and Tribal governments” {§3(c)}. Those limits
include {§3(d)}:
• Any limitation on small or civil
unmanned aircraft should be consistent with maintaining the safe use of the
navigable airspace and the legitimate interests of State, local, and Tribal
governments.
• Innovation and competition are
best served by a diverse and competitive small and civil unmanned aircraft systems
industry.
• Any limitation on small or civil
unmanned aircraft should not create an unreasonable burden on interstate or
foreign commerce.
• The operation of small and civil
unmanned aircraft systems that are local in nature have more in common with
terrestrial transportation than traditional aviation.
• As it relates to the time,
manner, and place of unmanned aircraft local operations, and the need to foster
innovation, States, local, and Tribal governments uniquely possess the
constitutional authority, the resources, and the competence to discern the
sentiments of the people and to govern accordingly.
• Relying upon technology
solutions, such as unmanned traffic management, provided by private industry,
will effectively solve policy challenges.
• State, local and Tribal officials
are best positioned to make judgments and issue dynamic limitations around
events, including, fires, accidents and other first responder activity, public
gatherings, community events, pedestrian thoroughfares, recreational
activities, cultural activities, heritage sites, schools, parks and other
inherently local events and locations, which may justify limiting unmanned aircraft
activity that is local in nature while balancing the activities or events against
the need for innovation.
• The economic and non-economic
benefits, of small and civil unmanned aircraft operations may be best achieved
by empowering the State, local, and Tribal governments to create a hospitable
environment to welcome innovation.
• Innovation and competition in the
unmanned aircraft industry are best served enabling State, local, and Tribal
governments to experiment with a variety of approaches to policies related to
unmanned aircraft.
• The Department of Transportation
shall, when making policy related to small or civil unmanned aircraft systems,
recognize that problems that are merely common to the State, local, and Tribal
governments will not justify Federal action because individual State, local,
and Tribal governments, acting individually or together, can effectively deal
with such problems and may find and implement more innovation friendly policies
than Federal agencies.
• The Department shall, when making policy related to
small or civil unmanned aircraft systems, provide timely information and
assistance to State, local, and Tribal governments that will ensure collaboration.
Privacy and Property Rights
Section 5 of the bill addresses a number of privacy and
property right issues. First, like S 1272, the bill prohibits DOT from
authorizing “the operation of a small or civil unmanned aircraft in airspace
local in nature above property where there is a reasonable expectation of
privacy without permission of the property owner” {§5(a)}.
Second, it addresses the fact that this bill would not
affect a whole slew of federal, State and local government regulations and
civil actions including “personal injury, wrongful death, property damage,
inverse condemnation, trespass, nuisance or other injury based on negligence,
strict liability, products liability, failure to warn, or any other legal
theory of liability” {§5(b)}.
Third, it provides State and local governments exclusive
authority to define private property rights with respect “to unmanned aircraft
in the airspace above property that is local in nature” {§5(c)}.
Next the bill prohibits the State and local governments from
“unreasonably or substantially impeding the ability of a civil unmanned aircraft,
from reaching the navigable airspace” {§5(d)},
or the national airspace above 200ft.
Finally, the bill provides no authority is provided within
the bill for federal, State, or local governments “to prevent an operator or
pilot from operating a small or civil unmanned aircraft over their own
property, right of way, easement, lands, or waters” {§5(e)}.
Moving Forward
Lewis is a freshman member of the House Transportation and
Infrastructure Committee. His bipartisan co-sponsors are also members of that
Committee. Between them they probably have enough influence to ensure
consideration by the Committee. Whether or not there is enough political will
to move this bill to the full House remains to be seen.
I expect that the largest problem with this bill (from the
point of view of passing the bill) is that it lacks any language protecting the
operation of model aircraft. This has been a recurring requirement in any
legislation making a serious attempt at setting standards for the operation of
UAS.
Commentary
As I mentioned with S 1272, the main shortcoming of this
bill is the failure to address the problem of enforcement because of the legal
restrictions on interfering with the flight of aircraft found in (
18
USC 32). Failure to address this issue will make many regulatory issues
practicably unenforceable.
In this bill in particular the privacy rights outlined in
the bill cannot be enforced without the property owner or local police being
able to stop the operation of the UAS over the property in question.
The question of protection of critical infrastructure from
surveillance or attack via UAS is completely ignored in this bill. Lacking a
federal will to set and enforce such rules, this bill could be a vehicle for
allowing State and local governments to do so by adding ‘protecting the
security of critical infrastructure’ to the list of State and local governments
‘legitimate interests’ in §3(c).