Can city, county, etc. regulate airspace or only FAA has the authority?

[lomposlapos]

In light of these texts:
Press Release – FAA Statement–Federal vs. Local Drone Authority

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

Can a city, municipality, county, state, etc. regulate the airspace for drone or only FAA has the authority? City, etc. can clearly regulate the takeoff/landing, but wondering what's the case for airspace use (flyovers, altitude restrictions, day/night flights, etc.).

 

[MARK (LI)]

An example of what local laws can do is found in New York City where you are not allowed to launch, land or operate a drone ( except within 5 designated NYC Parks) ...simple as that.....in Queens County , and in the Bronx...you would actually be able to take off from an adjacent jurisdiction outside the city limits and fly in and out, but not land.....although both have restrictions because of big airports, so you would have to check....you could probably get to Staten Island from New Jersey...but I don't think you would get much flying time once over Staten Island

 

[dwatson636]

I have recently emailed my city offices asking about the drone laws for open spaces and parks. I advised them about the FAA controlling the airspace above. They were very polite and asked me the following:

Thank you for sharing that information. Upon first review, City Parks, Recreation and Library Department staff members do not find anything in the Code of Federal Register stating that so wanted to ask you if you have a link to the FAA website with that information? We would like to submit whatever you have to the City Attorney’s Office for review with the municipal code language. This is an area of law that continues to evolve so it is possible that the most recent federal revisions (enacted in spring 2021) are not fully recognized in the Westminster Municipal Code clauses that pertain to drones that were enacted in 2018.
Any specific documents I can send them. Because obviously they won't look here. And they want me to do there work for them. But I want to send them specific data.
Dave

 

[66427cobra]

Might this help???

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

 

[Rich QR]

Any specific documents I can send them. Because obviously they won't look here. And they want me to do there work for them. But I want to send them specific data.
Dave

See 49 USC, Section 40103. It says that the US Government has exclusive sovereignty over US airspace, and that a citizen of the US has a public right of transit through that airspace.

Actually, the City of South Lake Tahoe, California, has done a lot of the homework in citing the regulations. This makes for some interesting reading:

https://www.cityofslt.us/DocumentCenter/View/12515/07242017-Who-Controls-and-Enforces-How-Aircraft-and-Drones-Operate-in-the-Airspace-Above-Lake-Tahoe

I know that many local jurisdictions attempt to regulate drone use, and not all of those ordinances and regulations are drafted by people with expertise in Federal aviation law. Perhaps some local regulations might survive court challenges, but some won't.

 

[dwatson636]

Might this help???

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

I read thru that yesterday, and although it looks good, it doesn't specifically say FAA has those rights. Also, it doesn't really say anything about recreational flying.

 

[Rich QR]

This GAO report is interesting. It talks about issues that it sees as still being unresolved. It's backed up by a lot of citations and case law, and it also points out areas where the laws haven't been tested well.

https://www.gao.gov/assets/b-330570.pdf

The full report is 20 pages long, and quite dense. I haven't digested it yet. But here's a quick excerpt.

Based on our review of the law, as well as the legal positions expressed by a range of stakeholders we spoke with and analyses by a number of legal commentators, key unresolved UAS legal jurisdiction and privacy issues include:

• Whether Congress may use its power under the U.S. Constitution’s Commerce Clause to regulate all UAS operations, including non-commercial, non-interstate, low-altitude operations over private property, and if so, whether Congress has authorized FAA to regulate all such operations in FMRA or other legislation;15
• What impact possible Fifth Amendment-protected property rights held by landowners in the airspace within the “immediate reaches” above their property, as recognized by the U.S. Supreme Court in United States v. Causby and other legal precedents, may have on federal, state, local, and tribal authority over low-altitude UAS operations;16
• Whether and to what extent Congress intended, in FMRA or other legislation, to preempt states, localities, and tribes from regulating UAS operations at low altitudes;17
• What liability UAS operators and the federal, state, local, and tribal governments may have to landowners under state aerial trespass and constitutional takings law precedents for conducting, regulating, or preempting state regulation of UAS operations in low-altitude airspace, and whether landowners may exclude drones from their overlying airspace;18 and
• Whether existing federal and state privacy laws adequately protect against invasions of physical privacy and personal data privacy involving UAS operations and what authority the federal, state, local, and tribal governments have to enact additional measures that may be needed.19

It goes on to dig into much more detail on those issues.

 

[sar104]

I read thru that yesterday, and although it looks good, it doesn't specifically say FAA has those rights. Also, it doesn't really say anything about recreational flying.

It doesn't say anything specific about recreational flying because it's not different to any other kind of flying from the perspective of who controls airspace.

 

[Rich QR]

It doesn't say anything specific about recreational flying because it's not different to any other kind of flying from the perspective of who controls airspace.

I agree that that's the position that Congress and the FAA have taken. But since the authority that Congress has for regulating airspace comes from the interstate commerce clause of the Constitution, one could make the argument that Congress oversteps its bounds with 44809, since the flights it regulates are neither interstate nor commerce.

I think that argument would likely fail, since the drones are potentially sharing airspace with flights that are clearly interstate commerce, and 44809 is largely intended to keep drones away from interstate commerce flights.

But there's at least an argument to made...

 

[sar104]

I agree that that's the position that Congress and the FAA have taken. But since the authority that Congress has for regulating airspace comes from the interstate commerce clause of the Constitution, one could make the argument that Congress oversteps its bounds with 44809, since the flights it regulates are neither interstate nor commerce.

I think that argument would likely fail, since the drones are potentially sharing airspace with flights that are clearly interstate commerce, and 44809 is largely intended to keep drones away from interstate commerce flights.

But there's at least an argument to made...

But that argument would also invalidate the regulation of all kinds of non-commercial manned aviation. As long as Congress is not violating the constitution it doesn't need explicit approval to regulate airspace.

 

[MARK (LI)]

I have recently emailed my city offices asking about the drone laws for open spaces and parks. I advised them about the FAA controlling the airspace above. They were very polite and asked me the following:

Thank you for sharing that information. Upon first review, City Parks, Recreation and Library Department staff members do not find anything in the Code of Federal Register stating that so wanted to ask you if you have a link to the FAA website with that information? We would like to submit whatever you have to the City Attorney’s Office for review with the municipal code language. This is an area of law that continues to evolve so it is possible that the most recent federal revisions (enacted in spring 2021) are not fully recognized in the Westminster Municipal Code clauses that pertain to drones that were enacted in 2018.
Any specific documents I can send them. Because obviously they won't look here. And they want me to do there work for them. But I want to send them specific data.
Dave

I would not send them anything and would hope they forget that you brought it up ....as it is...they may not like it, but the FAA has sole jurisdiction of airspace...if they have not given it any thought, resulting in bans, ...continue to fly, treat flying as a privilege, be courteous and careful, follow existing regs and don't rock the boat ....that they "do not find anything in the Federal Register does not make it your job to find it for them...it does not seem like they were considering any laws about drones until you brought it to their attention...now you have given them something to think about

 

[cgmaxed]

In light of these texts:
Press Release – FAA Statement–Federal vs. Local Drone Authority

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

Can a city, municipality, county, state, etc. regulate the airspace for drone or only FAA has the authority? City, etc. can clearly regulate the takeoff/landing, but wondering what's the case for airspace use (flyovers, altitude restrictions, day/night flights, etc.).

I read the Florida, where I live, laws regarding this. The Florida Senate states that no municipality, city , county or political group may create or enforce laws related to the use of UAVs. Only the senate is allowed to make the rules regarding take off and landing. They can't regulate the airspace of course. The senate creates the laws against take off and landing in state parks, bird and animal sanctuaries, parts of the everglades national park system etc. A city, town etc etc would have to get a law passed in the senate for it to be valid relative to drone use. Well, in Florida anyway. That's what I read. If anyone has read anything different please post a response.

 

[dwatson636]

I would not send them anything and would hope they forget that you brought it up ....as it is...they may not like it, but the FAA has sole jurisdiction of airspace...if they have not given it any thought, resulting in bans, ...continue to fly, treat flying as a privilege, be courteous and careful, follow existing regs and don't rock the boat ....that they "do not find anything in the Federal Register does not make it your job to find it for them...it does not seem like they were considering any laws about drones until you brought it to their attention...now you have given them something to think about

The thing is, they have pretty much blocked flying here. And without proper knowledge, they and the LEOs will just do what they want regardless of the laws.

 

[MARK (LI)]

OK..I did not see in your post where they were already preventing you from flying..how are they doing that?...I am asking because although FAA has control over airspace...the local jurisdictions do have the right and authority to prevent you from launching, landing and / or operating within their boundries....even on private property...New York City is a perfect example

 

[LA 2020]

In light of these texts:
Press Release – FAA Statement–Federal vs. Local Drone Authority

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

Can a city, municipality, county, state, etc. regulate the airspace for drone or only FAA has the authority? City, etc. can clearly regulate the takeoff/landing, but wondering what's the case for airspace use (flyovers, altitude restrictions, day/night flights, etc.).

Absolutely, example you can't fly in National Parks...period. Many counties and cities have their own ordinances.

 

[MARK (LI)]

Actually you can fly in National Parks from what I have read....you just cannot take off or land in them, nor can you carry the controller into the park....you can technically launch from outside the park and fly over

 

[sar104]

Absolutely, example you can't fly in National Parks...period. Many counties and cities have their own ordinances.

But they are not regulating the airspace - they are simply prohibiting takeoff, landing and operation of UAVs from within park boundaries. NPS has explicitly acknowledged that they have no jurisdiction over airspace.

 

[cgmaxed]

Absolutely, example you can't fly in National Parks...period. Many counties and cities have their own ordinances.

Absolutely NOT. You can fly over and in a national park all you want. You just can't take off or land in them. This fact has been discussed repeatedly in other threads with always the same result. States can only control take off and landing, NOT Fly Overs/ Fly Throughs.

 

[Heavydpj]

While they CAN'T tell you where you can fly OVER, they CAN restrict where you operate FROM. For example, they can't tell you that you are prohibited from flying over a park. The can (and many do) restrict you by saying that you can't "operate" a drone within the park premises. Other words of restriction may include, "launch," "land," "fly from" etc.