JEFFERSON CITY — The Federal Aviation Administration considers drones aircraft, but a prospective drone pilot doesn’t necessarily need a license to take flight. One impulsive online purchase can be all that stands between that person and the open sky.
With more hobbyists picking up drones, more public officials have concerns about how these flying quad-copters affect life on the ground.
Forty-one states have enacted some form of drone legislation as of late 2018, according to the National Conference of State Legislatures. Cities, universities and other entities have also sought to regulate airspace above and around certain areas.
Missouri Senate Bill 194, sponsored by Sen. Denny Hoskins, R-Warrensburg, seeks to do just that. The bill would make it a felony in Missouri for drones to fly around or above correctional facilities or mental health centers. A potential amendment would create a similar restriction over large open-air sports stadiums.
But the bill enters a legal gray area since the FAA has preemptive authority to regulate national airspace, according to four legal experts familiar with drone laws. The FAA already has some restrictions around certain corrections facilities, but if the state expands those, it might be overstepping.
So far, Hoskins’ bill has moved forward with bipartisan support, passing unanimously out of the Senate. It was voted out of the House Corrections and Public Institutions Committee and awaits floor debate.
Hoskins said the bill would enforce any existing FAA regulations, in addition to adding felony charges to flying in some areas without existing restrictions. Officials are worried about people collecting images of the layout and design of prisons, and about the potential to drop dangerous contraband into facilities.
“Although my understanding is the FAA does have some regulations about flying drones, especially around airports, it may not cover some other facilities,” Hoskins said.
Some airspace, such as that above and around busy airports, is classified so that drones can’t fly in it without a waiver. Some of those classifications start at a higher altitude than most drones fly, meaning drones can still fly at lower heights in that area without violating FAA regulations. Where exactly property on the ground ends and national airspace begins is somewhat disputed.
Vic Moss is the co-owner of Drone U, a company focused on drone pilot training. He said some state legislators don’t know where the FAA’s powers end and states’ begin.
“They don’t understand what they can and cannot do,” he said.
Moss said the FAA generally disapproves of legislation that regulates the national airspace, even if it mirrors federal language.
Elizabeth Cory, a spokesperson in the FAA’s Central Region office, said the FAA is a regulatory agency, so it would not give an opinion on the specific legislation.
In hearings for Hoskins’ drone bill and for a similar House version, Michael Whittle, the St. Louis Cardinals’ general counsel, testified in favor of a potential amendment to add large open-air stadiums to the list of no-fly areas for drones.
“Unfortunately, there is nothing in our current Missouri law that would make it unlawful for a drone operator to fly a drone into a mass gathering space, such as a large open-air stadium, imposing a threat to its occupants and/or causing an actual attack and/or mass panic or fear from an attack,” Whittle said on April 2 in a Senate hearing.
There are already temporary flight restrictions in and around large open-air stadiums during games, according to the FAA. That means drones are already not allowed to fly in them or within three statute miles of the stadium. Those restrictions extend to an hour before and an hour after the game.
If a state law created a permanent restriction over those venues, it would be getting into a legal gray area, according to Joel Roberson, a partner at Holland & Knight law firm in Washington, D.C., and a co-chair of the firm’s autonomous transportation team.
Federal law preempts state and local law because the U.S Constitution declares federal law “the supreme law of the land.” But, state and local governments still have the authority to safeguard citizens in and around those areas, Roberson said.
“The question that still exists is to what extent they can regulate drones in the altitude that’s in proximity to those facilities,” he said.
Moss said such a restriction would be a violation of the drone pilots’ First Amendment right to take a photo of anything visible from a public thoroughfare.
“The National Airspace System is a public thoroughfare,” Moss said.