S 1272 Introduced – UAS Rights

Last month Sen. Feinstein (D,CA) introduced S 1272, the Drone Federalism Act 5 of 2017. The bill would outline the limits of Federal Aviation Authority’s (FAA) authority to preempt State and local regulation of civil unmanned aircraft.

Local Regulations

Section 2 of the bill requires the FAA to specifically define scope of the preemptive effects of any regulations concerning the operations of civil unmanned aircraft systems (UAS). It then goes on to outline areas where FAA must preserve the legitimate interests of State, local and tribal governments to {§2(a)(2)}:

• Protect public safety;

• Protect personal privacy;

• Protect property rights;

• Manage land use; and

• Restrict nuisances and noise pollution

That area is limited to the operation of civil unmanned aircraft that is operated:

• Below 200 feet above ground level; or

• Within 200 feet of a structure.

Further, the bill provides examples of what types of restrictions by State, local and tribal governments the bill envisions. They include {§2(b)(2)}:

• Limitations on speed;

• Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property;

• Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events;

• Prohibitions on operations while the operator is under the influence of drugs or alcohol.

• Prohibitions on careless or reckless operations; and

• Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

Personal Property Rights

Section 3 of the bill prohibits the FAA from establishing regulations that “authorize the operation of a civil unmanned aircraft in the immediate reaches of the airspace above property without permission of the property owner” {§3(a)}. The term “immediate reaches of the airspace above property includes {§3(c)}:

• Any area within 200 feet above the ground level (AGL) of the property;

• Any area within 200 feet above any structure on the property; and

• Any area where operation of the aircraft system could interfere with the enjoyment or use of the property.

In the same section, and also labeled as a measure for the “Affirmation of Applicability of Constitutional Takings Clause Absent Federal Aviation Administration Regulations”, the bill also prohibits the FAA from establishing regulations prohibiting the operation of a civil unmanned aircraft “when flown in the immediate reaches of the airspace above property” {new §336(a)(6) of PL 112-95, Page 126 STAT. 77} when the operator has permission of the property owner.

Moving Forward

While Feinstein is not a member of the Senate Commerce, Science, and Transportation Committee to which this bill was assigned for consideration, two of her co-sponsors {Sen. Lee (R,UT) and Sen. Blumenthal (D,CT)} are. This means that there is a possibility that this bill could be considered in Committee.

The same forces that were responsible for including §336 in the FAA Modernization and Reform Act of 2012 (PL 112–95) will certainly oppose the passage of this bill because it would almost certainly result in a hodgepodge of drone regulations across the country that would affect operators of model aircraft. It is doubtful that even if this bill were adopted in Committee (unlikely) could make it to the floor of the Senate for consideration because of that opposition.

Commentary

This bill was substantially written to get around the Congressional limitations on drone regulations included in §336 of the FAA Modernization and Reform Act of 2012. Attempts to nullify those limitations on the FAA’s ability to regulate ‘model aircraft’ have been unsuccessful in Congress. Section 2 of this bill would instead allow State, local and tribal governments to undertake those regulations.

Having said that, §3 of this bill would further limit the ability of the FAA to regulate unmanned aircraft. Specifically, the provisions of §3(2)(b) have apparently been designed to neutralize the FAA’s ability to prohibit the flying of UAS over private property in restricted flight zones like Washington, DC.

What is interesting in that attempt is that it creates an inevitable situation where there is a conflict between the current §336(a)(5) (which allows the FAA to restrict UAS operations within five miles of an airport unless the operator has permission from the control tower) and the new §336(a)(6) (which prohibits the FAA from restricting the operation of UAS within 200 feet AGL above private property when the operator has permission of the property owner). Thus, it would seem that the FAA could not prevent someone from flying a UAS at the boundary fence in the landing pattern of an airport if the operator had permission from the property owner.

An additional point to be made here is that while this bill might allow State, local and tribal governments to establish some regulations for the control of UAS it does nothing to address the very real problems in enforcing those regulations. Since drone registration is still not authorized under §336 (and recently confirmed in federal court) and it is still against the law to interfere in the operation of any aircraft (including UAS) in the National Airspace (18 USC 32), State and local officials are going to have a hard time enforcing any regulations.