United States: Drone Regulation: US Trends And Developments

If one was to gauge actual drone use based only on media coverage and governmental activity, one might surmise that drones were buzzing down the streets of Manhattan delivering pizza, hovering over every developing news story and a cause of much physical damage.

That image, however, exists only in a virtual reality. While drone technology is developing quickly, it is not yet a part of everyday American life. The fact that drones have been the subject of much government activity and media coverage are, however, clear signs that many believe that this reality will quickly be upon us. Determining how this emerging technology should be regulated is of critical importance.

In the US, our system of government defines our federal government as one of limited powers, while vesting much regulatory authority in State and local governments. Subjects traditionally regulated by the latter include land use, safety, police and privacy related issues. Drone technology clearly impacts all of the foregoing even though it is defined by the FAA as an "aircraft" and operates within airspace over which the federal government exercises sovereignty.

Our firm's aviation practice has long been focused on the regulatory developments that shape the legal environment in which our clients operate. Although drones are now the current focus of much attention within the aviation community, our firm's involvement in aviation goes back to the time of the Wright brothers. A WWI pilot, Major Kenneth Macdonald Beaumont was a key figure in the founding and early development of the International Air Transport Association as well as the drafting and enactment of the 1929 Warsaw Convention. Members of the firm continue in various similar roles today around the globe and in their own countries of practice. What binds our global aviation practitioners together and is applicable to our involvement with drones today, is a core belief that all forms of aviation must be regulated as uniformly as possible, and not subject to a patchwork quilt of local regulatory regimes.

Consistent with our core belief on the need for uniform regulation, our US aviation team was retained by the Consumer Technology Association (CTA) and the Association of Unmanned Vehicle Systems International (AUVSI) to submit an amicus brief supporting a pro se plaintiff challenging the drone laws enacted by the city in which he lived. The action was brought in federal court and sought an injunction prohibiting the city from enforcing its drone laws.

The litigation garnered much attention since it was the first case to challenge a city's right to enact its own drone laws. Numerous other cities and states were contemplating (or had enacted) similar local laws while the FAA had been somewhat equivocal about their legal right to do so. While the FAA certainly inferred that its traditionally regulatory authority over aviation would continue, it specifically refused to address State and local authority over drones when it issued its first commercial drone regulations in the summer of 2016.

The city's attorneys cited to the FAA's equivocation as evidence that it had a concurrent right to issue regulations premised on regulation of land use, public safety and privacy. Our brief in support of the plaintiff's challenge to state and local authority explained how aviation had long been recognized to require uniform regulation and how in the United States, that had to mean that the FAA, not state or local governments, must be the sole source of regulation. We also pointed out that the FAA had previously expressed a willingness to work with state and local governments in developing a drone regulatory regime and that the city had failed to become involved in this effort.

In the fall of 2017, the federal court issued its decision agreeing with the position espoused by the plaintiff and our firm. The local regulations were deemed to be preempted by federal law and struck down. While that result was certainly significant, what came next is perhaps even more significant.

The attorneys for the city filed a notice of appeal of the trial court's decision. However while that appeal was pending, the FAA announced a formal program to speed the development and integration of drones into everyday use. Cities and states were invited to participate; signaling a federal willingness to listen to their concerns that was coupled with an overriding recognition of the need for uniform federal oversight and control. Within weeks of this announcement, the city withdrew its appeal of the trial court's decision granting the injunction.

The FAA is now implementing a pilot program that is intended to accelerate the integration of drones into widespread use. While cities and States have been invited and encouraged to participate, it is clear that the FAA is in control and will make final decisions as to operational and registration requirements. In so doing, the FAA is encouraging participants to leave their politics "at the door" and focus simply on creating rules and technological solutions that will allow drones to operate far more freely than currently allowed and do so in a safe and efficient manner in much the same way that other forms of aircraft are operated in the US and elsewhere. While there are certainly challenges that must be addressed and "details" that need to be sorted through, our global aviation team at Clyde is actively engaged in doing what we have always done - create a legal environment that allows our clients to conduct their business in a safe and sensible manner. Those of us in New York are hopeful that will one day include having pizza delivered directly to our office windows.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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