Drones and federalism: Why the states must lead on drone regulation

July 10, 2017

Last week, drone industry executives told President Trump they needed more regulation, not less, before they could expand further — a man-bites-dog story if ever there was one. But the answer isn’t to keep waiting on Washington. It’s to make use of one of our nation’s founding principles: federalism.

For now, the drone industry is grounded because the Federal Aviation Agency hasn’t written guidelines for drones that fly beyond the operator’s line of sight. Rules are also absent for drone flights at night. It will take years for this bureaucratic behemoth to pass through all the procedural hoops and hurdles necessary to produce a comprehensive regulatory scheme. The agency itself predicts drones won’t be fully integrated into our nation’s airspace until 2025.

But our rivals aren’t waiting. The Chinese-based manufacturer DJI is dominating the drone market, winning 50 percent of sales in North America alone. The only North American market not dominated by DJI is for drones priced under $500, which are mostly toys. Meanwhile, drones are making home deliveries in Japan. They’re providing medical supplies in Rwanda. And they’re tracking poachers in South Africa. All around the world, drones are changing the economy.

American communities and businesses could use drones for plenty of tasks, too, if only they were allowed. But right now Americans don’t have the regulatory certainty they need to hire workers and turn their ideas into products. The drone industry will be stuck on the launch pad until this is fixed.

That’s why we’re introducing a bill with our Democratic colleagues Sen. Dianne Feinstein (CA) and Sen. Richard Blumenthal (CT) to break the regulatory logjam and return power to states and local communities.

The bill, titled the Drone Federalism Act, would recognize the right of states and local communities to govern drones within a specified zone of authority, the airspace under 200 feet. The FAA would still be responsible for the overall safety of the skies. But at this low altitude, state and local governments would be able to set guidelines for the “reasonable time, manner, and place” of drone flights.

The bill also preserves the rights of every American by reaffirming the long held doctrine that owners control the immediate 200 feet of airspace above their property. The FAA would be prevented from authorizing the operation of an unmanned aircraft in the immediate reaches of airspace above a property without permission of the owner. Hobbyists would also be required so secure permission from the owner before flying a drone within 200 feet above a private held property.

This bill is a logical extension of one of our founding principles, federalism. Below 200 feet, drones are almost exclusively a matter of local, not federal, concern. They affect pedestrian byways, community events, and the activities of first responders. They could also prove to be handy tools for state and local law enforcement, firefighting, disaster management, and environmental preservation.

But until now, states and local communities have been shut out of the conversation. Not a single state, regional, or tribal authority serves on the 37-member Drone Advisory Committee to the FAA. Only one member, Mayor Ed Lee of San Francisco, represents a local government. Yet the committee is considering pre-empting local regulations by assuming full jurisdiction over drone use, regardless of height. Such a move would stall the growth of the American drone industry.

Our bill would stop this power grab in its tracks. It would give state and local authorities the clarity and authority they need to develop rules for local drone use. It would give the drone industry the certainty to invest, experiment, and expand. And it would give our economy a boost.

Under the Drone Federalism Act, the sky’s the limit for this promising new technology. We hope Congress will begin debate and pass it as soon as possible.

Op-ed originally published in the Washington Times