80% of Responding States Say They Use Drones: Key Findings from a Recent Survey and Our Own State Drone Law Research
BY Zacc Dukowitz5 April 2018
A recent survey by the American Association of State Highway and Transportation Officials found that, out of 44 responding states, 35 were working with UAVs in some capacity.
35 out of 44 means that 80% of responding states are using drones, and that 70% of all the states in the U.S. are using them.
Taking a closer look at those 35 states that reported they’re using drones, the survey found that 20 of them have DOTs (Departments of Transportation) that have incorporated drones into daily operations, and that 15 of them are still in the testing and research phase when it comes to the use of drones. All of these operations are taking place either under a COA, through Part 107 certification, or both.
The fact that so many states report that they’re using drones is remarkable.
If we go back five years to 2013, most of the state drone laws we find passed at that time (if we find any) deal with privacy concerns and the desire to limit the use of drones as much as possible. Where drone legislation does concern governmental or public agencies, it’s only to limit the use of drones by law enforcement for surveillance purposes.
For the most part, it’s only as you move forward into 2016, 2017, and 2018 that you start to see states begin to create legislation to support and grow the use of drones for positive purposes, instead of legislating against the use of drones by their citizens or by law enforcement.
Fast forward to today and you find a fair amount of pro-drone legislation in place at the state level throughout the U.S. Some cutting-edge states, like North Carolina, even have robust regulations and certification requirements in place for different types of drone use.
An aerial shot taken in the state of North Carolina
State Drone Laws
One reason we’re so interested in state drone laws right now is because we recently created individual pages listing the drone laws for every state in the U.S. (you can find the directory for our new state drone laws pages here.)
Creating these pages took hours and hours of research, and gave us a lot of insight into the legislative landscape in the U.S. when it comes to state and local drone laws.
When we first started doing research, we noticed that there seemed to be a lot of confusion out there regarding the difference between federal, state, and local drone laws, so we made sure to organize our pages to clarify the difference between each.
Federal drone laws are those regulated by the Federal Aviation Administration under the Part 107 rules. State drone laws, on the other hand, are those passed at the state level by the state legislature or some similar state body, and local laws are those passed at the town or city level (often called the municipal level).
In general, when it comes to drone laws state laws trump local laws, and federal laws trump both state and local laws.
Here are some of our biggest takeaways after all the research we did into state laws:
- States are doing due diligence. Several of the state drone laws we found concern allocating money and personnel to investigate the potential uses and regulations for drones in the state.
- State are interested in growing the drone industry. Several of the state drone laws we found also expressly state that they do not want to be a hindrance to the growth of the drone industry. In some cases, laws simply state that the state is reinforcing existing FAA regulations, and create specific legislation to allow law enforcement to enforce the FAA’s Part 107 rules.
- There seems to be a tension between state and local laws. This tension is most easily expressed through the fact that, in many cases, states are trying to regulate and promote the use of drones, while cities are trying to ban them altogether. Of course, this is an over-simplification, and doesn’t apply in all cases—we’ll discuss this tension more below, when we take a closer look at pre-emption.
- Local laws often seem to overreach. We’re not legal experts, but it seems like many local laws overreach their authority. For example, in some instances local laws make it illegal to fly within the city limits altogether, or below 400 feet within the city limits (which, given that the FAA’s Part 107 rules don’t allow flights above 400 feet, essentially makes flying impossible in that city).
Regarding the last point above, we say these local laws seem to overreach their authority because it’s our understanding that the FAA should have pre-emption when it comes to regulating the national airspace. Pre-emption is the principle the Newton case turned on in 2017, in which sections of local drone ordinances in the town of Newton, MA were struck down because they were in direct conflict with existing FAA regulations about the use of drones.
Pre-emption specifies which regulatory body supersedes another, and it’s a notion that came up a lot when we were creating our state drone law pages.
You usually hear about pre-emption in the context of federal laws pre-empting state laws, but in our research we found that many states had passed pre-emption laws stating that they had pre-emption over local governments when it came to drone legislation. Meaning, essentially, that state law trumps local law in those instances.
In some cases, like Delaware, states have even passed legislation expressly banning the creation of local drone legislation.
Delaware’s HB 195 “prohibits cities and towns in Delaware from creating their own drone laws by claiming pre-emption for the creation of all such laws for the Delaware General Assembly.”
Nonetheless, the town of Bethany Beach in Delaware has passed a law making it illegal to fly a drone in any public area within the city.
An aerial shot taken in the state of Delaware
And here is where the tension between state and local laws that we mentioned in the third bullet above can really be seen. Because Delaware is not the only state that has banned or expressly declared pre-emption over local drone laws, but still has cities that have passed laws that contradict state law.
In total, we found 13 states that have some kind of pre-emption law in place, and many of them have cities that have passed some kind of local drone law that seems to contradict state law.
Despite this apparent tension between state and local drone laws, we didn’t find much tension at all between state and federal drone laws.
In fact, as we mentioned in the second bullet point above, many states are actively working to enforce existing federal legislation, and empowering law enforcement to do so.
The next few years will probably see more tensions arise between local authorities and those at the state and federal level regarding the regulation of drones, and we may see more court cases like the Newton one, where local legislation is struck down for being in direct contradiction of federal or state law.
But we may also see some real forward progress on the regulatory front at the state level.
Given the promise of the FAA’s new UAS Integration Pilot Program (UIPP), which allows states to submit proposals for creating their own local or state drone programs with unique rules and permissions, it could in fact be the states that lead the way when it comes to opening things up for commercial drone operations in the U.S.
Zipline recently announced that they’ve partnered with six different states to submit UIPP proposals for delivering medical supplies via drone (they kept the specific states a secret for now), and several other states have announced innovative pilot programs that would require flying currently prohibited under the Part 107 rules, such as flying beyond visual line of sight, or at night.
These state proposals could well be our best path forward to normalizing those kinds of drone operations. Only time will tell.
Know something unusual or interesting about state or local drone laws? Send us an email at support[at]uavcoach[dot]com.