On July 11, 2018, DOT’s General Counsel and FAA’s Chief Counsel sent a stern response to the Uniform Law Commission’s (ULC) draft model tort laws for drones, claiming that the ULC had created an “incorrect impression” that their agencies concurred with the model rules and requested the ULC strike any reference to ULC’s contacts with DOT and FAA counsel. Although the agencies deny that they have taken an official position on the relationship between Federal regulation and State and local authority over drones, the letter explains that the FAA’s State and local drone law guidance does not support ULC’s suggested per se exclusion zone up to 200 feet.  The FAA goes so far as to raise “decades of established precedent” would conflict with ULC’s proposed rule and that Federal courts have rejected the notion of applying traditional trespass law to aircraft overflights.

The letter highlights the increasing uncertainty of federal preemption over airspace laws as tensions between new federal, State, and local drone laws grow. Operators, on the other hand, want a settled legal landscape in which to operate.  The drone industry should closely follow the development of ULC’s model rules, which may be the precursor to future State and local rules and play an important role in defining the future relationship of federal, State, and local regulation of drones.

ULC’s Draft Model Tort Laws for Drones

In November 2017, the ULC began drafting model rules to address potential gaps in tort law for drones and specifically address a drone’s ability to enter low altitude airspace adjacent to property and gather information. On June 19, 2018, the ULC released its draft Tort Law Relating to Drones Act, along with a Memorandum from the drafting committee.

In the preface to the draft tort laws, the ULC argues that existing law, particularly the Supreme Court precedent of U.S. v. Causby, fails to protect landowners’ property interests or define the acceptable conduct of drone operators.  Generally, Causby recognizes that airspace is a public highway, but also that a landowner must have “exclusive control of the immediate reaches of the enveloping atmosphere” to have full enjoyment of their land.  The ULC argues that “determining whether an aerial intrusion is an entry into the immediate reaches requires a fact-specific inquiry which has historically caused uncertainty and a lack of uniformity.”  To address the alleged uncertainty, the drafting committee included a new per se rule for aerial trespass and suggested the line be drawn at 200 feet above ground level or above surface improvements.

To address the relationship with federal law, Section 202 of the model rules states that “[a] provision of this [Act] which is expressly preempted by federal law is unenforceable to the extent of preemption.” In its comments, ULC claims it consulted with the FAA, worked with the FAA on forming the committee and its scope, and held multiple conversations with FAA and DOT counsel, including on the subject of federal preemption.  It also cited FAA’s 2015 guidance on state and local regulation of drones, which states “laws traditionally related to state and local police power – including . . . trespass . . .generally are not subject to federal regulation.”  The ULC concluded that property rights that are not in conflict with federal regulations, citing the Supreme Court’s acknowledgement that “the United States does not ‘own’ the airspace.”

The Growing Tension in Drone Regulation

The FAA has consistently taken the position that restrictions of drone operations should be consistent with “the extensive federal statutory and regulatory framework pertaining to control of the airspace, flight management and efficiency, air traffic control, aviation safety, navigation facilities, and the regulation of aircraft noise at its source.” The FAA cited its statutory authority to regulate airspace (49 U.S.C. § 40103) and acknowledged that a consistent regulatory system for the use of airspace has a broader effect of ensuring the highest level of safety for all aviation operations.  The FAA has reiterated its exclusive control over the use of airspace as part of its authority to regulate safety.  However, it also gave examples of traditional state laws that are generally not subject to federal regulation, including trespass.

In the meantime, States have been passing laws that might conflict with the FAA’s authority and guidance. Over 16 states passed 24 laws in 2017, ranging from laws that requires the state aviation authority to develop rules where drones can takeoff and land to laws that allow municipalities to prohibit flights over a public water supply.  Before that, states passed over 30 laws in 2016, including laws that make it a state crime to fly a drone near critical facilities.

In the letter to ULC, the FAA and DOT took specific exception to the ULC’s comments for Section 202, stating that the comments give an “incorrect impression that the Office of the General Counsel (OGC) of the [DOT] and [FAA] concurred with the substance of the current draft Model Rule, based upon consultations between the FAA and ULC.” After disclaiming having taken any position on the relationship between Federal, State and local authority, the letter also highlighted that neither was involved in drafting the model rules.

Furthermore, the letter acknowledges that the 2015 guidance does acknowledge that trespass is in the area of State police powers, but explains that such proposition does not support a per se exclusion zone or that the FAA has ever taken such a position.  More importantly, the agencies suggest that such a rule would conflict with established precedent and claim that court opinions that reject the notion of applying trespass law to aircraft overflight of private property.

In the end, the FAA rejected any endorsement of the model rules “or the logic that underlies it.”

Who Will Decide?

As the ULC progresses with its draft model rules, it will have to navigate through difficult precedent, including Causby, and the FAA’s continuing authority over U.S. airspace.  The FAA’s statutory authority over safety will undoubtedly maintain FAA’s position as a regulator of drones at any altitude.  But, as the FAA acknowledged in its own guidance, some rights and interests remain protected by the States and local authorities, including property rights.

Given that precedent in Causby and other courts addressed preemption for manned aviation, the drone industry should not expect that the ULC, States, or the Federal agencies will be the final arbiter of regulatory authority over drones—the scope of authority over drones and the extent of Federal preemption will be a question for the courts.