Municipal Regulation and Use of Drones: Navigating FAA Rules, State Laws, and Preemption Issues

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Municipal Regulation and Use of Drones: Navigating FAA Rules, State Laws, and Preemption Issues Leveraging Opportunities and Overcoming Challenges of Unmanned Aerial Vehicles THURSDAY, AUGUST 23, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Derke J. Price, Equity Partner, Ancel Glink Diamond Bush DiCianni & Krafthefer, Naperville, Ill. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about continuing education, call us at ext. 2.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 Municipal Regulation and Use of Drones Navigating New FAA Rules and Federal Preemption Derke Price 5

6 Drone Technology and Uses Incredibly varied commercial uses 6

7 Drone Technology and Uses Incredibly varied municipal uses: Blue light police, fire, security Construction/building Infrastructure/civil Agriculture Conservation 7

8 Drone Technology and Uses Varied hardware and software for different goals 8

9 FAA 2007 Drone Policy Bottom line: FAA views drones as aircraft, so aircraft rules apply. No person may operate a UAS in the National Airspace System without specific authority. All drone operators... must apply directly to the FAA for permission to fly. 9

10 FAA Modernization Act of 2012 FAA tasked with developing a plan for safe integration of UAS into the NAS Mandated that the FAA issue a final rule on integrating small UAS into the NAS by August

11 Section 333 Exemption Standard Conditions Pilot s License (Private or Sport) Operations at speeds less than 45 knots No higher than 400 feet above ground level UAS must be within visual line of sight (VLOS) Operations require a visual observer Comprehensive preflight inspection of UAS before flight Pilot training program and experience requirements Flight must be 5 miles from an airport Permission from landowner must be obtained FAA approved flight manuals and maintenance manuals 11

12 Part 107 The FAA issued the suas rule, Part 107, on June 21, 2016 Part 107 effective on August 29, 2016 Section 333 exemptions still valid until expiration, which is typically two years after date of issuance Operators must choose to operate under Part 107 or their Section 333 exemption for each flight; no mixing and matching 12

13 FAA classifies UAS in the national airspace as: A. Public (Non-Military) B. Civil (Commercial) C. Hobbyist (Model Aircraft) 13

14 FAA Rules: Overview Hobbyist (Recreational) Part 107 (Business Purposes) Pilot Requirements No pilot requirements Must have Remote Pilot Airman Certificate Must be 16 years old Must pass TSA vetting Aircraft Requirements Unless exclusively operated in compliance with Section 336 of Public Law (Special Rule for Model Aircraft), the aircraft must be registered if over 0.55 lbs. Must be less than 55 lbs. Must be registered if over 0.55 lbs. (online) Must undergo pre-flight check to ensure UAS is in condition for safe operation Location Requirements Operating Rules 5 miles from airports without prior notification to airport and air traffic control Must ALWAYS yield right of way to manned aircraft Must keep the aircraft in sight (visual line-of-sight) UAS must be under 55 lbs. Must follow community-based safety guidelines Must notify airport and air traffic control tower before flying within 5 miles of an airport Class G airspace* Must keep the aircraft in sight (visual line-of-sight)* Must fly under 400 feet* Must fly during the day* Must fly at or below 100 mph* Must yield right of way to manned aircraft* Must NOT fly over people* Must NOT fly from a moving vehicle* Example Applications Educational or recreational flying only Flying for commercial use (e.g. providing aerial surveying or photography services) Flying incidental to a business (e.g. doing roof inspections or real estate photography) Legal or Regulatory Basis Public Law , Section 336 Special Rule for Model Aircraft FAA Interpretation of the Special Rule for Model Aircraft Title 14 of the Code of Federal Regulation (14 CFR) Part

15 Government Operations Can operate under Part 107 or apply for a public aircraft Certificate of Waiver or Authorization ( COA ) COA is an authorization issued by the Air Traffic Organization to a public operator for a specific UA activity FAA conducts a comprehensive operational and technical review. If necessary provisions or limitations may be imposed as part of the approval to ensure the UA can operate safely with other airspace users. In most cases, FAA will provide a formal response within 60 days from the time a completed application is submitted. Public aircraft operators such as law enforcement agencies, state or local governments, or public universities may continue to operate under the terms of their COAs if they already have one. 15

16 Government Operations Publicly released COAs available for review. ces/foia_responses/ Examples: California Department of Forestry and Fire Protection Gadsen, Alabama Police Department Grand Forks Sheriff Department Lorain County Community College, Ohio Medina Ohio Police Department 16

17 Part 107: Preflight Inspection : Remote pilot in command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation. Local weather Local airspace Location of persons and property Other ground hazards Ensure control links work Ensure adequate power Ensure payloads are properly attached Preflight checklists are available online from manufacturers and other resources 17

18 Part 107: Operator Establishes a remote pilot in command position Must pass initial aeronautical knowledge test or an initial training course if hold a pilot certificate Must be vetted by TSA Must be 16 years old Comply with registration requirements Reporting obligations (10 days if serious injury, loss of consciousness or property damage of $500) 18

19 Part 107: Operator : Initial knowledge test covers, among others: Regulations and airspace classifications Aviation and weather sources suas loading Emergency procedures Crew resource management Radio communications procedures Airport operations Maintenance and inspection Airman knowledge Testing Centers: df 19

20 Part 107: Operational Limitations Operational limitations Less than 55lbs including payload VLOS Not over uninvolved people Daylight only Class B, C, D and E airspace with ATC permission Class G airspace no ATC permission required Transportation of property for hire if: total under 55lbs, VLOS and not from a moving vehicle 20

21 Operational Limitations: Airspace Part of the initial knowledge test: OK in Class G; Class B, C, D and E airspace with ATC permission &sid=505&preview=true Use available tools to help: B4UFLY / AIRMAP 21

22 Operational Limitations: Tools 22

23 Operational Limitations: Tools 23

24 Operational Limitations: Tools 24

25 Operational Limitations: Tools 25

26 Part 107: Waivers Restrictions that can be waived: Operation from a moving vehicle or aircraft Daylight operations. VLOS. UAS to Pilot Ratio Operating limitations Request a waiver: st_waiver/ Instructions: st_waiver/media/instructions.p df 26

27 Two Groups of Issues 1: Regulating drone use by others 2:Governmental use of drones 27

28

29 States of Play: Battle of the Domes 29

30 FAA v. States: Tie Goes to FAA Under 49 USC 40103, the United States Government has exclusive sovereignty of airspace of the United States and the FAA has the authority to prescribe air traffic regulations on the flight of aircraft, including UAS. Whether Federal law preempts state or local requirements for UAS depends on the precise nature of those requirements. The Department of Transportation evaluates these laws or requirements on a caseby-case basis to make sure they don't conflict with FAA's authority to provide safe and efficient use of U.S. airspace. *FAA.gov 30

31 Constitutional Law: Federal Preemption Three Types of Federal Preemption: Express Congress expressly forecloses state law in a statute. Conflict (implied) State law or regulation directly conflicts with federal law Field (implied) Federal regulation leaves no room for state regulation 31

32 Constitutional Law: Federal Preemption Express Federal Preemption 49 U.S. Code Sovereignty and use of airspace (a)(1) The United States Government has exclusive sovereignty of airspace of the United States. However, Nothing in the FAA expressly preempts state regulation of air safety, so preemption, if any, must be implied. Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007) 32

33 Constitutional Law: Federal Preemption So, where does the FAA get its preemption authority over local drone laws? Supremacy Clause, Article VI, Section 2: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. 33

34 Constitutional Law: Federal Preemption Commerce Clause, Article I, Section 8: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes Dormant Commerce Clause, implied by Commerce Clause States are prohibited from passing legislation that will interfere with interstate commerce. 34

35 Constitutional Law: Federal Preemption Activities falling within the commerce clause Channels of interstate commerce; The instrumentalities persons or things in interstate commerce; and Those activities that substantially affect interstate commerce. Note: Federal regulation of intrastate activity is within the commerce power only if the regulated activity substantially affects interstate commerce. US v. Lopez 14 U.S. 549, 115 S.Ct. 1624, 131 L.Ed. 2d. 626 (1995) 35

36 Constitutional Law: Federal Preemption Legislative and Administrative Sources of FAA Authority: 49 U.S.C , 44502, and (former Federal Aviation Act of 1958, as amended and recodified). FAA Modernization and Reform Act of 2012, Public Law No (Feb. 14, 2012), Subtitle B, Unmanned Aircraft Systems. Title 14 of the Code of Federal Regulations, Chapter 1. 36

37 Constitutional Law: Federal Preemption Implied Field Preemption We hold that federal law occupies the entire field of aviation safety. Congress' intent to displace state law is implicit in the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety While Congress may not have acted to occupy exclusively all of air commerce, it has clearly indicated its intent to be the sole regulator of aviation safety. The FAA, together with federal air safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states. Montalvo v. Spirit Airlines, 508 F.3d 464, (9th Cir. 2007). 37

38 Constitutional Law: Federal Preemption Implied Conflict Preemption Conflict preemption applies where compliance with both federal and state regulations is a physical impossibility, and in those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) Example of state drone law that could be subject to a conflicts preemption lawsuit: A state is concerned with paparazzi drones spying on its celebrities and enacts a law prohibiting drone flights under 400 ft. AGL, directly conflicting with the FAA s regulations allowing drones to operate in that airspace. 38

39 Where does FAA Jurisdiction start? Heaven to Hell gone Control of Airspace for own Use (US v. Causby) Reasonable Expectation of Privacy Quiet Enjoyment of Property (Nuisance) 39

40 FAA Position on Federal Preemption Examples of State and Local Laws for Which Consultation with FAA is Recommended. Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example a city ordinance banning anyone from operating UAS within the city limits, within the airspace of the city, or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. Citations: City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969) Source: 40

41 FAA Position on Federal Preemption Examples of State and Local Laws for Which Consultation with FAA is Recommended. Mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework. Citations: Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007). 41

42 FAA Position on Federal Preemption Examples of State and Local Laws within State and Local Government Police Power Laws traditionally related to state and local police power including land use, zoning, privacy, trespass, and law enforcement operations generally are not subject to federal regulation. Citation: Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). 42

43 FAA Position on Federal Preemption Examples of State and Local Laws within State and Local Government Police Power Requirement for police to obtain a warrant prior to using a UAS for surveillance. Specifying that UAS may not be used for voyeurism. Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing. Prohibitions on attaching firearms or similar weapons to UAS 43

44 State and Municipal Regulation ALEC Model Legislation for States and Municipalities Section 4. Authorization and Licensing A person that is authorized by federal law to operate unmanned aircraft systems may operate an unmanned aircraft system in this state for any lawful purpose if the unmanned aircraft system is operated in a manner consistent with federal law. Section 5. Protection of Emergency Responders (1) An individual shall not operate an unmanned aircraft system in a manner that knowingly and intentionally interferes with the official duties of any of the following: (a) A police officer; (b) A firefighter; (c) A paramedic; or (d) Search and rescue personnel. (2) As used in this subsection, interferes means that term as defined in [State] penal code [concerning law enforcement interferences], [citations]. (3) An individual who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both. 44

45 State and Municipal Regulation ALEC Model Legislation for States and Municipalities Section 6. Protection from Privacy Invasions and Harassment (1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment or stalking. As used in this subsection, harassment means that term as defined in [State] penal code, [citations] and stalking means that term as defined in [State] penal code, [citations]. (2) A person shall not knowingly and intentionally operate an unmanned aircraft within a distance that, if the person were to be present personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order. (3) A person shall not knowingly and intentionally operate an unmanned aircraft system to capture photographs, video, or audio recordings of an individual in a manner that invades the individual s reasonable expectation of privacy and that would constitute unlawful surveillance or invasion of privacy as those terms are defined in [State] penal code, [citations]. (4) An individual who is required to register as a sex offender under the [State sex offenders registration act] shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual s sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual. (5) An individual who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both. 45

46 State and Municipal Regulation ALEC Model Legislation for States and Municipalities Section 7. Protection of Infrastructure and Facilities A political subdivision seeking to restrict, or limit the operation of unmanned aircraft in close proximity to facilities or infrastructure that it owns or operates shall apply to the Federal Aviation Administration for such designation pursuant to Section 2209 of the FAA Extension, Safety, and Security Act of 2016, Public Law No Prior to making an application for designation to the Federal Aviation Administration, the political subdivision shall hold at least one public hearing, on adequate notice to the public, concerning the proposed application. Section 8. Accountability of UAS Operators The State Aviation Director is designated to provide input to the Federal Aviation Administration to facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft, as contemplated by Section 2202 of the FAA Extension, Safety, and Security Act of 2016, Public Law No

47 State of Illinois Public Act : No unit of local government, including home rule unit, may enact an ordinance or resolution to regulate unmanned aircraft systems. Public Act : Fish and Aquatic Life Code Prevents use of drones in any way that interferes with the lawful taking of fish or wildlife. 47

48 Zoning and Land Use Commercial Drone Ports Zoning powers probably still in place Attract Development v. Impact on surrounding property owners 48

49 Nuisance Public nuisances?(obstructs, damages, or inconveniences the rights of the public) Maybe drone surveillance Private nuisance (where deleterious effects are unrelated to commerce) 49

50 Personal ( Hobby or Recreation ) 50

51 FAA RULES FOR MODEL AIRCRAFT Fly below 400 feet and remain clear of surrounding obstacles Keep the aircraft within visual line of sight at all times Remain well clear of and do not interfere with manned aircraft operations Don't fly within 5 miles of an airport unless you contact the airport and control tower before flying Don't fly near people or stadiums (or over unprotected people) Don't fly an aircraft that weighs more than 55 lbs Don't be careless or reckless with your unmanned aircraft you could be fined for endangering people or other aircraft 51

52 State of Illinois Drones with Cameras within the Scope of laws concerning video recording. 720 ILCS 5/26-4. Illinois law defines video record broadly to include any videotape, photograph, film, or other electronic or digital recording of a still or moving visual image. 720 ILCS 5/26-4(e)(2). prohibits knowingly making a video of another person without their consent in residence, hotel rooms, locker rooms, restrooms and changing rooms, etc. 720 ILCS 5/26-4(a) 52

53 Eavesdropping Law Illinois was a 2-party state (both parties in the conversation had to give consent) (exceptions for law enforcement) Struck down as too severe 53

54 Local Regulation Use of Government Property 54

55 Policy Questions Complete Ban? Permits? Enforcement? 55

56 LOCAL LEO INTERACTION FAA published Law Enforcement Guidance for Suspected Unauthorized UAS Operations 56

57 Group 2: I WANT ONE! (Use by Government) 57

58 Governmental drone uses 58

59 Public Entity Operation Part 107 Certificate of Operation POLICIES FOR ALL 59

60 Three Public COAs Blanket Public COA: nationwide flights in Class G airspace at or below 400 feet self-certification of the UAS pilot 60

61 Three Public COAs Jurisdictional: Tailored to requested needs Detailed FAA application 61

62 Three Public COAs Special Governmental Interest: Specific Emergency Situation Shorter review period 62

63 Framework at the State Level For Government-Use Policies Task Forces on UAS Privacy, Civil Rights, Civil Liberties Developing policies that apply across all levels of government: Avoid a patchwork of local ordinances Promote coordination with federal regulation Promote use of UAS in the economy 63

64 Notes On Drafting Policies FAA Approval for Use Part of team training and drills Pilots trained Collaboration across departments (PW/Fire/Police) 64

65 Examples State of Washington Issued Guidelines for individual development of policies State of Colorado Centralized through: Department of Public Safety and State Center for Excellence 65

66 States as Laboratories Wyoming SF 70 Key: jurisdiction over operations when NOT in navigable air space (Note: FAA mercurial on navigable air space ) 66

67 ILLINOIS 725 ILCS 167/1 Freedom from Drone Surveillance Act 67

68 Freedom from Drone Surveillance Act Prohibits Use of Drones to gather information There are exceptions (Section 15) Non-disclosure (w/ exceptions) Evidentiary Penalties Prohibits Use of Private Drones Drone Task Force recommendations due 7/

69 Section 15 Exceptions Counter Terrorism (Homeland Security determination of threat) Pursuant to search warrant (45 days) Exigent circumstances to protect life etc. (48 hrs max with reporting requirement) Search for missing person (not a criminal investigation) Crime scene and traffic crash scene photography (private property requires consent or search warrant) Disaster or Public Health Emergency 69

70 Common Law Illegal Searches and Seizures 4 th Amendment Mosaic Theory Warrant Requirements Evidentiary Provisions 70

71 Examples State of North Dakota NDCC et seq. Warrants tied to State Constitution Unique Exceptions (border security) State of Connecticut HB5274 Warrants within general evidentiary presumptions 71

72 Records and Record Retention One set of rules for law enforcement Another for the civil side 72