The White House unveiled a highly anticipated Drone Integration Pilot Program (“Program”) that will allow state and local government to test different models for low-altitude regulation of drones, also known as unmanned aircraft systems (“UAS”).  The Program represents a significant break from the Federal Aviation Administration’s (“FAA”) previous position to discourage state and local government involvement in most aspects of UAS operations and is designed to encourage private entities to undertake innovative UAS testing in the United States, such as drone package delivery.  It will create more opportunities for cutting-edge commercial UAS flights for communities and operators, but the FAA and commercial aviation will likely continue to resist expanded operations that pose safety risks, including flights near airports.

An increased role of local government in regulating airspace may also erode the federal courts’ strong deference to the FAA’s pervasive federal regulatory scheme for U.S. airspace.  For example, a court recently accorded substantial deference to the FAA when it cited a FAA UAS “Fact Sheet” to strike down most aspects of a city’s drone regulation.  Previously, the FAA has attempted to circumscribe local involvement to the traditional areas of privacy, zoning, and law enforcement. With this Program and in a unique memorandum from the President to the Secretary of Transportation (“Memorandum”)—not an FAA rulemaking or policy statement—the Administration through the U.S. Department of Transportation (“DOT”) appears to be inviting direct local government involvement in airspace regulation below 400 feet, albeit under careful FAA oversight and approval.

The Program will permit state, local, and tribal governments to partner with private businesses to submit proposals for cutting-edge UAS test projects that will operate below 400 feet.  The DOT and FAA will review the applications and select at least five localities to begin the Program, based on various criteria, including: involvement of commercial entities in the proposal to advance objectives serving a public interest; community support; diversity of UAS operations to be undertaken; economic, geographic, and climatic diversity of selected jurisdictions; diversity of levels of government involvement; location of critical infrastructure; and safety.

The Program is designed to encourage pioneering UAS operations from private sector entities.  It also appears to be an effort to stave off more onerous legislation, which is often opposed by the drone industry groups and would give states and local communities a more independent role in regulating drones.  In response to the Administration’s initiative, one congressional sponsor of the proposed legislation, Congressman Jason Lewis, said he was pleased to see the President’s action, but that “it doesn’t go far enough in protecting local control and the rights to privacy and property.”

The DOT stated in a press release that it supports the testing of “night operations, flights over people, flights beyond the pilot’s line of sight, package delivery, detect-and-avoid technologies, counter-UAS security operations, and the reliability and security of data links between pilot and aircraft.”  Currently, the FAA prohibits many of these complex UAS operations—such as nighttime or beyond visual line of sight—without a waiver from the Part 107 regulations controlling commercial use of small UAS.  Largely, the agency has resisted approving flights over non-participating people, and package delivery, which have been the subject of intense industry lobbying by Amazon and other companies.  As part of the Program, the White House has directed the DOT and FAA to use all available tools, including Part 107 waivers and Section 333 exemptions, to speed up approvals for these restricted operations.

According to the White House, the Program will respond to the perception that the United States is falling behind on UAS advancement.  An official from the White House Office of Science and Technology Policy noted that many companies are testing drone applications overseas rather than domestically, including Google’s Project Wing and Amazon.

The White House directed the DOT to officially establish the Program by January 2018 and select applicants by July 2018.  Successful applicants will have 90 days after selection to get their projects underway.

Although the Program will create more opportunities for cutting-edge commercial UAS flights, it may also complicate the federal courts’ strong precedent that federal statutes and regulations preempt local regulations for UAS.  As UAS have become prevalent throughout the United States, many state and local governments have sought additional authority over UAS operations within their jurisdictions—often with the goal of limiting,  not increasing, UAS operations.  Federal legislation has been introduced that would give broad authority to local governments to regulate low-altitude UAS operations.  Read Losing Power – The Bill Attempting to Lessen FAA Control Over Low Altitude Drones.  Concerns that a patchwork of differing state and local regulations would delay large-scale UAS integration in interstate commerce, which are often raised by UAS industry stakeholders, prompted the introduction of this legislation.

In response to the local efforts to restrict UAS operations, courts have sided with the FAA and given preemptive effect to federal law.  For example, the City of Newton, Massachusetts, enacted a drone ordinance that significantly limited operations over both public and private property.  A federal judge recently overturned that ordinance, determining that the ordinance was preempted by conflicting federal law.  The judge’s order strongly upheld FAA’s exclusive authority over most aspects of UAS. Read Federal Judge Strikes Down Newton, MA Drone Ordinance on Preemption Grounds.

While the President’s Memorandum states that it does not “impair or otherwise affect the authority granted by law to an executive department or agency,” the Program could muddy the strong precedent regarding federal versus nonfederal authority over UAS.  Because the federal government will select and approve the projects, a court could consider the federally-recognized establishment of local rules as lessening the FAA’s preemptive argument about a nationwide plan for UAS.

The Program is a significant turning point in FAA’s UAS regulation and the larger legal framework for UAS operations.  The DOT’s selections in the Program will provide significant insight into the Trump Administration’s goals for widespread UAS integration in the coming months and years.