Backlash Against ULC Proposal to Ban Drones from Flying Below 200 Feet | Industry Leaders Including AUVSI and DJI Speak Up
BY Isabella Lee25 October 2018
The Uniform Law Commission (ULC) has proposed a law that draws an arbitrary 200-foot line in the sky under which no drones can operate without permission from private property owners. If implemented in its current form, this law would cut drone operators’ accessible airspace in half in many areas.
The ULC is a highly-influential group of lawyers, judges, and legislators that propose model legislation to the states. They perform this service on a volunteer basis to determine which areas of law should be uniform. Members of the ULC first discussed establishing a uniform drone law in June. However, these ULC members have little to no aviation or drone experience. Resultingly, their proposal fails to recognize the federal government’s exclusive control of airspace regulation and runs counter to existing law. The FAA currently allows drone operators to fly at or below 400 feet.
Here’s a link to the ULC’s latest draft proposal as of October 2018: Tort Law Relating to Drones Act.
Backlash Against the ULC’s Proposal to “Draw a Line in the Sky” at 200 Feet
Multiple associations and companies involved in the drone industry have come together to address the ULC’s problematic proposal. Nineteen associations and companies in total are included in the signature of the letter, including the Academy of Model Aeronautics (AMA), Amazon, AUVSI, DJI, and PrecisionHawk.
The letter outlines several flaws with the ULC’s draft proposal:
- The proposed per se aerial trespass tort is unnecessary and preempted. There are existing state nuisance laws already in place that give landowners the ability to prevent such drone operations. Additionally, nearly 20 parties already have expressed concern that such an approach is preempted by federal law.
- The proposed aerial trespass tort exercises per se violations. Under the proposed draft, the mere presence of an unmanned aircraft of any size for any period within 200 feet over private property (or any structure on it) causes a per se injury. A landowner should always be required to demonstrate some injury in order to proceed with litigation. The ULC, however, wants to redefine the tort so that no injury need be shown.
- The proposed law does not properly apply preemption principles. Section 202 of the Act incorrectly attempts to limit the scope of federal preemption by stating that a federal law must “expressly” preempt a provision before said provision is preempted. Preemption is not limited, however, to situations where a federal law expressly displaces a state law. To properly capture the scope of federal preemption, the writers of the letter urge the ULC to eliminate the word “expressly” from Section 202.
- The proposed law places the burden of proof on the drone operator. Proposed Section 302 would establish rebuttable presumptions that certain images captured using drones involve “private facts” and are “acquired in a manner that is highly offensive to a reasonable person.” The rebuttable presumption makes it the defendant’s responsibility to prove that the images were captured in a way that did not violate the property owner’s privacy or cause per se injury to the property owner. In civil actions, however, the burden of proof should be on the party bringing a case, not the defendant.
- The proposed law would lead to a confusing patchwork of different laws in every state. The ULC desires to establish a uniform drone law, but they do not make clear that localities cannot regulate the ownership or operation of drones. Without language limiting the ability of localities to regulate the ownership or operation of drones, a uniform drone act will not reduce the patchwork of different laws as intended.
This isn’t the first time these associations have voiced their concerns to the ULC either. The same nineteen industry organizations penned their first letter to the ULC on the issue in July. After it appeared the ULC had ignored the industry’s concerns, they penned the second letter in October.
ULC Falsely Claims FAA’s Support For Proposed Drone Law
The U.S. Department of Transportation and the FAA have also raised objections to ULC’s proposed uniform drone law. The ULC falsely claimed that the FAA worked with them to inform the draft of the proposed law. In a letter to the ULC, the FAA and DOT state that they played no role in drafting the language of the proposed law.
Furthermore, neither DOT nor the FAA has taken any official position on the relationship between Federal regulation and State and local authority that would support the draft ULC proposal. Finally, neither the DOT nor the FAA has a role in drafting the proposed language in the ULC’s tort statue.
—Steve G. Bradbury, General Counsel, DOT; Charles M. Trippe Jr., Chief Counsel, FAA
The federal government has exclusive control of airspace regulation. Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace. We talk more about state drone laws and preemption in this article on state drone laws.
The DOT developed the UAS Integration Pilot Program (IPP), to provide the FAA with insight on how to best involve local jurisdictions in the integration of UAS into the airspace in a way that also alleviates their concerns. Through programs such as the IPP, the FAA can address state and local concerns in regards to drones in a more effective manner than the creation of patchwork laws at the state level by groups without aviation expertise.
This Friday, the ULC will convene in Detroit to discuss the proposal, and their decisions could shape the future of the American drone industry. In its current form, the ULC’s proposal is likely to cause significant controversy and could create a complicated patchwork of differing state laws that erode, rather than enhance, aviation safety. Share your thoughts on the ULC’s proposal and how it may impact the drone industry in this thread on our community forum.