Drone Bills Loom as Tension Between Industry, Localities Heats Up

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Michaela Ross

Multiple drone-related bills are hitting Congress at a critical juncture in the emerging technology’s deployment, as local advocacy groups and the unmanned aircraft system (UAS) industry debate whether more state and local authority would help or hinder drone deployment and adoption.

UAS industry groups and local and state government organizations are split on whether the growing list of Congressional bills could airlift the drone industry over increasing tensions surrounding state and local authority to police the low-altitude areas where drones operate.

State and local officials have passed dozens of drone-related legislation and resolutions in recent months. Meanwhile, hundreds of thousands of hobbyist drones take to the skies, and companies like Amazon.com Inc. and United Parcel Service Inc. are developing drone delivery programs.

The new state and local rules have met resistance from some drone operators and industry groups that say the Federal Aviation Administration’s authority over drones in the national airspace preempts municipal and state rules, as it historically has with manned aviation. Some small UAS trade groups worry that the jumble of state and local mandates could stifle drone deployment and confuse operators, who are expanding their drone use to do everything from inspect electrical lines to photograph real estate.

Those views do not represent the entire industry. Other drone companies and local government organizations say federal action to clarify state and local authority can’t come soon enough. They’re concerned that confusion over airspace jurisdiction will ultimately harm the drone industry by spurring a backlash from local governments seeking to control drones in their communities, dampen consumer adoption, and discouraging startups from entering the industry while uncertainty reigns over how they can operate.

“I think punting and not answering these questions now is just a really misguided delay tactic. Waiting another year to resolve these issues doesn’t give regulatory certainty, it just allows companies with enough money to run out the clock,” Greg McNeal, co-founder of AirMap, a drone traffic management and mapping company, told Bloomberg BNA.

McNeal said any delay in resolving the roles of federal, state, and local authorities is “just increasing the animosity between these communities and the drone industry.”

States `Filling Policy Vacuum’?

The FAA-chartered Drone Advisory Committee (DAC) and its subcommittee, which includes over 100 drone manufacturers, operators, academics, and state and local officials, was tasked with clarifying the role of drones and began meeting in 2016.

Amplifying concerns that the group’s heavy roster of industry voices were unfairly outweighing local and state officials and organizations came to a breaking point earlier this year. In March, the National League of Cities resigned from the drone committee, saying it wouldn’t participate in regular meetings until additional local officials were appointed, and that the interests of local government were not being adequately considered, Brett Bolton, principal associate for federal advocacy, said in an emailed statement.

The RTCA, the organization that manages the drone committee on behalf of the FAA, said in a statement that it “continues to look for ways to include the voice of local authorities.” Currently, four of the subcommittee’s roughly 70 represented organizations are local and state representatives, including the City of San Francisco, the National Conference of State Legislatures, the National Association of State Aviation Officials, and the National Association of Counties (NACO), a spokesperson said.

An FAA spokesperson said the agency conducts outreach with local officials to address UAS safety concerns and recognizes the need to work with all stakeholders.

Meanwhile, enter Congress. Pressure is growing for federal action to clarify localities’ ability to police low-altitude drone operations. Several local government organizations and drone companies said Congressional action could be the quickest and clearest way to ensure localities and states can address local law enforcement and citizen concerns—such as being able to set drone curfews, speed-limits, or no-fly zones.

“I can understand why Congress feels this is the time to act,” said Dr. John Eagerton, aeronautics bureau chief for the state of Alabama and co-chair of the DAC task group on clarifying airspace authorities. “The states right now are filling a policy vacuum. They’re trying to address demands and complaints from their constituents.”

Congress’ Approach: Legislate

Two stand-alone bipartisan bills introduced in the Senate and House since May could give state and local officials more authority to issue drone rules for operations under 200 feet. Currently, for manned aircraft, the FAA’s authority over all airspace preempts local and state control, but this has been called into question with emerging UAS technology.

Sens. Dianne Feinstein (D-Calif.), Mike Lee (R-Utah), Richard Blumenthal (D-Conn.) and Tom Cotton (R-Ark.) introduced the Drone Federalism Act ( S. 1272), which would give state, local and tribal governments authority to issue “reasonable restrictions on the time, manner and place” of drone operations under 200 feet of the ground or a structure.

Rep. Jason Lewis (R-MN) and Rep. Julia Brownley (D-Calif.) introduced a bipartisan bill, the Drone Innovation Act ( H.R. 2930), that also aims to set parameters for drone operations under 200 feet. However, the bill allows for more federal oversight by directing the Secretary of Transportation to consult with local and state officials to publish a national framework to guide local UAS operations, and would ensure local laws can’t unreasonably restrict on UAS ability to access navigable airspace.

Both bills won the support of numerous local advocacy organizations, including the National Association of Counties (NACo) and the National Conference of State Legislatures.

The bills are “a recognition of both chambers that local governments have a vested interest—whether it be in public safety, emergency response or the like,” Kevan Stone, associate legislative director at NACo, and a member of the FAA’s drone subcommittee told Bloomberg BNA. Stone also said the Lewis bill was “more expansive” on recognizing industry interest.

Early Tension in Reauthorization

Overlaying all these factors, FAA reauthorization bills in the House and Senate call for studies of local jurisdiction over drone operations.

Markups of these bills the week of June 26 showed an early indicator of the fine line lawmakers are walking when trying to balance the interests of the UAS industry and local stakeholders. The issue is also being clouded by other unrelated provisions, such as a controversial move to privatize air traffic control proposed in the House bill.

Rep. Lewis submitted his bill as an amendment to the House FAA reauthorization bill, only to withdraw it during the June 27 committee markup. A number of members of the House Transportation and Infrastructure Committee were concerned about industry fears that the amendment may result in a further patchwork of local laws, a House Republican aide told Bloomberg BNA.

Rep. Bill Shuster (R- Penn.) and Lewis said they would work together on the issue, but didn’t want the amendment to distract from the bill’s focus on air traffic control reform. The amendment could be reintroduced during House floor debate of the bill in July.

Senator Lee will introduce the Drone Federalism Act as an amendment during the Senate’s markup of Sen. John Thune’s FAA reauthorization bill June 29, a spokesperson said.

Both FAA reauthorization bills mark a shift in the UAS conversation over the past year. An initial version of the 2016 agency reauthorization bill included a provision that would have preempted almost any local or state UAS law. This year, congressional members face more pressure from their own constituencies to allow for more local control of drone operations as more and more states pass legislation.

Industry Groups Say Wait

Drone industry trade groups—including the Association for Unmanned Vehicle Systems International (AUVSI) and the Consumer Technology Association (CTA), which represent companies such as Amazon.com Inc. and Sinclair Broadcast Group Inc.—said in a June 15 letter to both chambers that any legislation addressing federal, state, and local roles is premature.

Several groups on the letter have said that the deepening patchwork of state and local regulation risks slowing drone adoption by both hobbyists and commercial industries, and it is important to have one consistent framework to prevent confusion. Many of the drone issues that local constituents may be concerned about can be addressed with existing laws, such as on trespassing and voyeurism, they’ve said.

Congress should wait for the FAA’s drone advisory committee to give recommendations to the agency on how best to clarify the role of state and local governments in low-altitude UAS operations, the letter said.

Eyes on FAA, Bills

To be sure, even though UAS industry voices outnumber local and state organizations on the FAA’s DAC, the agency’s ability to police hundreds of thousands of low-altitude drones without local and state authority has been questioned.

Officials within the agency privately acknowledge that the FAA lacks the resources to control low-altitude airspace below 200 feet and is looking for ways to allow for state and local officials to participate in drone regulations, according to multiple sources familiar with officials’ statements on the matter. Traditionally, the agency has mandated lighting, marking standards, and mapping for structures taller than 200 feet in the national airspace. Attempting to regulate low-altitude airspace where drones operate would be difficult without local participation, sources said.

Stakeholders will be keeping their eye on the FAA reauthorization bills, as well as the upcoming meeting of the FAA’s fourth drone advisory committee July 21, which is to include a report from the group tasked with defining local roles and responsibilities.

To contact the reporter on this story: Michaela Ross in Washington at mross@bna.com

To contact the editor responsible for this story: Barbara Yuill byuill@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law