February 21, 2017

Well, here we go again.  On February 14, 2017, California Senator Hannah-Beth Jackson, having failed in previous attempts to overregulate the use of UAS in California, recently introduced yet another anti-UAS bill in the 2017-2018 legislative session, the “State Remoted Piloted Aircraft Act” (SB-347). The bill purports to amend the Public Utilities Code but would do far more than affect public utilities.  The bill includes a “laundry list” of UAS limitations and restrictions, including criminalizing UAS operations that are already preempted by the FAA, making acts “with a drone” crimes that are already crimes under various other state and federal laws, and creating additional confusion by specifically refusing to preempt local laws.

As a preliminary matter, the bill defines “aircraft” in one section and then in another section states that “remote piloted aircraft” are not “aircraft.”  Considering the still-unsettled debate over  the NTSB’s decision in FAA v Pirker that UAVs are “aircraft” for purposes of FAA regulations, this provision in SB-147 itself is ambiguous and possibly preempted.

As another preliminary matter, the definition of “remote piloted aircraft” includes no limitation whatsoever on size or weight.  So, the 4 oz. toy drone you picked up for your kid’s birthday and which he flies into the neighbor’s yard will be subject to laws which, if violated, will result in up to six months in jail or a $1,000 fine.  How neat!

Even more troubling is proposed Section 21754 which lists a plethora of restrictions by prohibiting operations :

–           in a manner that interferes with manned aircraft

–           in a manner prohibited by any federal statute or regulation governing aeronautics

–           in a careless or reckless manner

–           in a manner that constitutes a nuisance

–           in a manner that violates an individual’s privacy rights

–           in a manner that constitutes a trespass

The first three of these provisions are arguably preempted by federal law and duplicate the same FAA regulations already on the books.  So, now instead of being subject only to federal prosecution, you can also look forward to being subject to the state’s interpretation and prosecution of federal law under the guise of this state law.  This is a transparent attempt by the State of California to create another layer of laws to regulate UAS at a time when the FAA has neither the time nor the resources to punish UAS operators, especially for minor offenses, that do not have anything to do with air safety.

The latter three of these provisions propose to completely change the law in California with regard to UAS operator liability for what are otherwise civil torts.  This is an area where Senator Jackson has previously tried and failed to pass legislation, the only thing stopping it being a veto by Gov. Jerry Brown in 2015 (that bill would have, among other things, created strict liability for anyone flying a UAV over another’s property below 350’ AGL without permission). If this current iteration of Senator Jackson’s anti-drone bill passes, it will criminalize these civil torts and lead to a huge influx of cases where UAS operators are subject to punishment for operations which the law has not even yet determined are improper. Should a UAS operator be cited/arrested/prosecuted for “trespass” when the current law on trespass is ambiguous as to UAS? The elements of civil and criminal trespass are also different, the latterrequiring specific intent.  Does this bill relate to criminal trespass, civil trespass, or both?  The same issues arise for “invasion of privacy” and “nuisance.”  To the extent that there are already criminal laws relating to specific, intentional behavior, there is no need to duplicate such laws merely to add the element “…with a drone.”  To the extent that this bill seeks to criminalize what are otherwise  civil torts litigated between individual parties, it is completely inappropriate.

Unmentioned in this proposed legislation is how it will be coordinated with Part 107 remote pilot regulations.  If the FAA grants a Part 107 authorization for operation in certain Class D airspace, can the state prosecute the operator because the operation is otherwise an alleged “nuisance” or  “trespass?”

Proposed Section 21756 provides that a person shall not operate a “remote piloted aircraft” without first complying with all FAA registration and marking requirements.  Again, this is merely criminalizing FAA regulations on the state level.  In fact, as many who have fought this battle at the local level are already aware, the FAA has specifically stated in its “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” dated December 17, 2015 state and local entities may not impose “additional” registration requirements. Is this an “additional” requirement even though it is in fact duplicative of the FAA requirement?

As an aside, the proposed bill also requires commercial UAS operators to obtain liability insurance “reasonably necessary to provide adequate protection against liability imposed by law for personal bodily injuries, including death resulting therefrom, and property damage as a result of an accident involving the remote piloted aircraft.” In this writer’s opinion, such a requirement is both legal and appropriate.

Anyone interested in the enactment of fair and carefully-tailored laws relating to operation of UAS should be concerned by this proposed bill, and especially if you live in California you should consider getting involved as this bill makes its way through the Legislature.

Damon Willens

Chair, Aviation and Unmanned Aircraft Systems Practice Group

Anderson, McPharlin & Conners, LLP