Municipal Drone Law Regulation and Enforcement

August 25, 2017

The introduction of unmanned aircraft systems (“UAS”), known more colloquially as “drones,” into mainstream society has resulted in a significant uptick in consumer purchasing. Flying drones appeals to people. They enjoy piloting their remote control devices anywhere from their back yards to parks, fields, and farmland. However drone use is not limited to recreational purposes; various entities use drones to accomplish commercial objectives, such as news outlets and real estate agents. Drones are certainly here to stay, which only highlights the need to focus on the laws governing their use as well as local municipalities’ abilities to legislate and take enforcement action as appropriate.

In 2012, the Federal Aviation Administration (“FAA”) enacted the FAA Modernization and Reform Act (the “Act”), which contains a section that explains the law governing a type of UAS called model aircraft, otherwise known as aircraft used for a hobby or recreational purpose.[1] Section 336 of Act broadly states that the FAA may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, subject to certain requirements, such as prohibitions on interference with any manned aircraft as well as restrictions on operating a model aircraft within five miles of an airport.[2] Additionally Section 336 of the Act defines a “model aircraft” as an unmanned aircraft that is:

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating the aircraft; and

(3) flown for hobby or recreational purposes.[3]

As recently as June 28, 2016, the FAA amended Title 14 of the Code of Federal Regulations. Among other things, this section concerns the operation of model aircraft that meet the conditions of Section 101.41 of the same Part. Importantly, the definition of “model aircraft” is the same as that in Section 336 of the Act.[4] Likewise, 14 C.F.R. § 101.41 contains the same conditions for a model aircraft as Section 336 of the Act.[5]

Part 107 of Title 14 lies at the heart of the regulatory framework most relevant to municipalities as it focuses on small UAS.[6] This Part applies to the registration, airman certification, and operation of all commercial and hobby/recreational use of small UAS; however, Subsection(b)(2) exempts model aircraft from this part because Part 101 covers model aircraft.[7]       

Because Part 107 exempts FAA regulation of model aircraft, Part 107 mainly applies to commercial use of drones. Thus, municipalities may generally not regulate commercial use of drones in its airspace. Further, while a more obviously preempted issue, municipalities clearly cannot regulate the government or military use of drones. Instead, municipalities may, as long as they complies with the above regulations, regulate model aircraft, i.e., aircraft used for recreational or hobby purposes.

Via their police powers, municipalities may also take steps to enforce their drone ordinances and fashion penalties for violations of the same. Further, while municipalities must keep in mind that the FAA still has enforcement authority of its own to prevent model aircraft operators from endangering the safety of the national airspace, local law enforcement officers will oftentimes, if not always, be the first line of defense should a UAS create a safety hazard. Importantly, while the FAA does regulate in the area of commercial UAS, this does not likely prevent local municipalities from taking enforcement action against commercial UAS when they put public safety at risk in emergency scenarios. In particular, municipalities near airports should be vigilant about taking action in these circumstances given their proximity to manned aircraft.

Drones are a rapidly growing industry, further emphasizing the necessity for legal practitioners and drone users alike to keep abreast of the latest changes in federal, state, and local legislation. As drone manufacturers improvise on their products, lawmakers will surely be confronted with the challenge of tweaking existing laws, and municipalities are no different. Rather, action by local governing bodies to regulate and enforce drone usage is essential to maintaining public safety both on and off the ground.

For more information about zoning and municipal regulation of unmanned aircraft systems, please contact Matt N. Korenoski of Strassburger McKenna Gutnick & Gefsky at (412) 281-5423 or mkorenoski@smgglaw.com.

[1] PL 112-95, February 14, 2012, 126 Stat 11.

[2] PL 112-95, February 14, 2012, 126 Stat 11, Section 336(a).

[3] PL 112-95, February 14, 2012, 126 Stat 11, Section 336(c).

[4] See 14 C.F.R. § 101.1(a)(5).

[5] See 14 C.F.R. § 101.41.

[6] 14 C.F.R. § 107.1.

[7] 14 C.F.R. § 107.1.