A new proposal scheduled to be released from the office of Senator Lee (R-Utah) tomorrow would put the airspace up to 200 feet in altitude over private property under the control of the property owner – and would restrict the FAA’s right to regulate airspace below 200 feet in altitude, making any zoning or regulatory decisions the right of the state or tribal entity governing the land.
DRONELIFE received a summary of the bill from Senator Lee’s office. We may not quote from the summary, as the bill is due to be released tomorrow. In essence, the bill seeks to clarify and control two significant legal issues that remain unresolved: 1) Establish the airspace to 200 feet in altitude above private property as under the exclusive control of the property owner; and 2) Establish state, tribal and local governments as having exclusive and absolute rights to regulate that airspace.
In summary, the bill would propose that the altitude between 200 and 400 feet be designated for the use of civilian drones – although it wouldn’t prohibit the FAA from allowing drones above 400 feet. The area under 200 feet would be under the jurisdiction of state, local and tribal governments – and the bill would call for a redefinition of “navigable airspace” to make that clear.
The bill tackles two thorny issues that the drone industry has seen before. At the heart of both issues is the question of preemption: the idea that the FAA regulates all of the airspace, from the ground up. That’s a concept that hasn’t been challenged since the 1940’s, when a chicken farmer complained that low-flying airplanes were botherig his chickens. He was able to claim damages: that established a shaky precedent for establishing the airspace below 83 feet over private property as off limits.
With the growth of civil drones, preemption is being challenged again. In 2015, the FAA released a Fact Sheet to state governments advising that the FAA had exclusive regulatory control over the airspace. Since then, a series of challenges have led the FAA to soften their stance – and they are trying to work with state, tribal and local governments in cooperation over drone legislation, through programs like the UAS Integration Pilot Program.
It hasn’t been enough. This bill is the latest in a series of bi-partisan bills that want to establish state, tribal and local government jurisdiction over low altitude airspace – and bar uninvited drones from flying at low altitudes over private property. Senator Dianne Feinstein (D-CA) and Senator Lee differ on many political issues; but it was Senator Feinstein proposed the Drone Federalism Act in 2017 that would have granted states sweeping powers over drone regulation.
There’s a lot more to this bill than just the issues of private property and preemption. The bill will propose that state, local and tribal governments may establish zoning for takeoff and landing zones – and charge fees if they want. The proposal addresses drone delivery, unmanned traffic management, and safety standards. It’s a bill that could have a very significant impact on the commercial drone industry and the recreational drone community: in some states more than others.
DRONELIFE will provide the text when available. This is a proposal that requires the careful consideration of the drone industry.