The National League of Cities released a municipal guide designed to serve as a primer on drones for local officials. Published this week, Cities and Drones provides insight into the FAA’s recently released rules on drone operation, and offers suggestions for how local governments can craft their own drone ordinances. The guide:

• lays the groundwork for how cities should conceive of these issues
• outlines why they should care about drones
• explains how cities can use drones
• outlines the new federal regulations, and
• examines steps municipal regulators can take now to ensure they are properly regulating drones

The guide deals with potential regulation of private use, commercial use and public use, laying out potential alternatives for regulation. NLC suggests cities can adopt technology-neutral laws (laws that prohibit the act rather than the method, such as an ordinance criminalizing voyeurism whether accomplished with binoculars or drones) or technology-specific laws (which would specifically regulate drones to prohibit certain activities, such as use of drones over public buildings). The guide also suggests cities might use zoning-specific laws (such as prohibiting the use of commercial drones in residential areas during certain hours) or city-wide laws (such as additional registration requirements for drones operated within city limits), or deal with drones on a case-by-case basis or by adopting agency-wide policies.

Along with the report, NLC has released a model ordinance regulating drones. This ordinance vests authority for the development of specific drone rules in the city manager, including imposition of conditions prior to take-off, landing or operation of a drone within the boundaries of a city. It also requires that drone operators first notify the city prior to taking off, landing or operating from any land within the city. Notice would be provided electronically through a system provided by the city itself, and would require the name, address and phone number of the operator, along with specific information about the flight, including start and end time, take-off and landing, the purpose of the operation, and a statement affirming compliance with city rules.

This ordinance represents a big step forward for local governments looking to regulate drones, with the NLC specifically outlining one path toward local control. However, some of what the NLC suggests may be preempted by federal regulations promulgated by the FAA, and potentially also by federal law in the short term. The FAA has released a fact sheet outlining its preemptory authority and providing guidance for where it believes local governments may regulate. The fact sheet indicates that any city ordinance banning anyone from operating drones within city limits, within the airspace of the city, or within certain distances of landmarks would likely be preempted, or would at least require consultation with the FAA prior to being adopted. The FAA has also claimed exclusive authority for drone registration, which would preclude cities from requiring drone operators to register their drones prior to use within the city.

The NLC model ordinance may run afoul of the FAA’s exclusive registration authority, and the accompanying guide suggests some potential areas of regulation that may not survive any preemptive actions by the FAA. In addition, Congress has considered even stronger language preempting the field of drone regulation, with the Senate passing last spring an FAA Reauthorization bill granting even greater federal control. That bill was not ultimately signed into law, but future congressional efforts to restrict local authority over this area are expected, and local governments should follow these proceedings closely, both to ensure their interests are protected and to understand the scope of their regulatory authority.

Ultimately, the state of local regulatory authority in this area remains frustratingly unclear. While the FAA claims to preempt much of the regulatory field, it has not taken action against any state or local regulators who overstep as of yet. Local government regulation of drones is essential to ensure local interests are protected and that drone violators can be effectively enforced against. Yet local regulators should take great care that any drone policies they draft do not draw the federal government’s ire or create a system that is grounded before it can even take flight.

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