A new drone law is under consideration in the New York State Senate. Introduced by Sen. Leroy Comrie, NY State Senate Bill S1979 is an amendment to the state penal law, which would make unlawful use of a drone a violation. The bill also defines “unlawful use” to include flight below 100 feet over private property.
The bill, which would take effect in November of 2017 if passed, follows Part 107 regulation closely as it defines unlawful use. But the addition of a final bullet specifying flight over private property meets the issue of FAA preemption head on.
A PERSON IS GUILTY OF UNLAWFUL USE OF A DRONE WHEN DURING THE PERSONAL USE OF SUCH DRONE, EXCEPT AS OTHERWISE PROVIDED BY FEDERAL LAW, HE OR SHE KNOWINGLY OPERATES A DRONE:
1. MORE THAN FOUR HUNDRED FEET ABOVE GROUND LEVEL;
2. WEIGHING MORE THAN TEN POUNDS; OR
3. WITHOUT A VISUAL LINE OF SIGHT OF SUCH AIRCRAFT;
4. WITHIN A RESTRICTED AIRSPACE; OR
5. IN A RECKLESS MANNER WHEREIN SUCH OPERATION CREATES A RISK OF HARMTO THE PUBLIC; OR
6. WITH THE INTENT TO HARASS OR ANNOY AN INDIVIDUAL OR INDIVIDUALS;
7. BELOW ONE HUNDRED FEET ABOVE GROUND LEVEL ON PRIVATE PROPERTY WITHOUT THE OWNER’S CONSENT.
The FAA has tried ineffectively to stop the flood of state and local regulations that deny the FAA’s right to legislate in airspace from the ground up, issuing a fact sheet in 2015 designed to clarify the issue. FAA preemption has been a topic in many of last year’s versions of FAA Reauthorization – none of which passed. FAA Administrator Michael Huerta attempted to defend the position by saying that a “patchwork quilt” of state and local drone laws across the nation would limit the commercial industry.
It’s a knotty legal problem, one that various court cases have thus far avoided. Two recent bills proposed on a national level – the Drone Federalism Act and the optimistically titled Drone Innovation Act – would grant states clear legal power to make their own drone laws. The Drone Federalism Act would allow states to legislate flight over private property to an altitude of up to 200 feet – something that could make widespread adoption of long-range, BVLOS applications like drone delivery almost impossible.
As the commercial applications for drones expand to include potentially life-saving missions like the delivery of emergency medical equipment, states who have rushed to add drone laws may find themselves in a difficult position – unable to take advantage of important advances without repealing ill-considered legislation.