This article was originally published in Michigan Association of School Boards Council News Spring 2016 issue and is republished with permission.
Unmanned Aircraft Systems (“UAS”), otherwise known as drones, are everywhere. Literally. And their recreational use is likely to become even more prevalent given the hundreds of thousands of UAS’s that were projected to be wrapped and placed under the tree during the 2015 holiday season. While it is one thing for Sally or Johnny to fly their new toy in their backyard, what happens when someone decides to fly a drone over a high school football game, the grade school playground or hover outside a classroom window. Is there anything a school district can do?
The answer is depends largely on whether regulation of UAS’s is solely within the realm of the federal government. Airspace and aircraft are historically the domain of the federal government. As a result, the doctrine of “field preemption” comes into play. Field preemption prohibits state or local governmental regulation in an area if the federal government’s regulatory scheme is sufficiently comprehensive that it evidences the intent for federal law to occupy the entire field. As a result, it is important to consider the current federal regulatory system governing UAS’s to determine what rights a school district may have to regulate UAS, a/k/a drone, usage.
The federal government already has a complex regulatory framework that addresses hobbyists, commercial UAS use, and use of UAS’s by public entities, such as school districts. Comprehensive Federal Aviation Administration (“FAA”) regulations for civil operations of UAS’s weighing less than 55 pounds are also in the works and are projected to be completed by June of 2016. Just recently, the United States Department of Transportation adopted regulations requiring registration of all unmanned aircraft “except for toys and those with minimal safety risk.” In short, the federal government certainly appears to be “occupying” the field to a significant degree. For that reason, regulation of drone usage could be considered fully preempted by the federal government. Yet, there is an argument that UAS regulation within certain airspace is not solely within the authority of the federal government and may also be controlled by property owners and regulated by other governmental entities with specific limitations.
Case Law Supports Airspace Rights
The argument against field preemption over all drone usage hinges on 1946 United States Supreme Court decision that held that landowners have property rights in the portion of the airspace above the ground that is not within the navigable airspace. U.S. v. Causby, 328 U.S. 256 (1946). The extent, or, rather, height, of the ownership right has not been precisely defined. However, case law supports ownership rights in airspace up to at least 500 and perhaps up to 1,000 feet above ground. Although the case upon which such ownership rights are based is nearly 70 years old, it has withstood the test of time and there is room to argue, no matter how intensive and specific the FAA’s UAS regulations, that a landowner maintains the right to control some airspace and, therefore, state and local governmental entities may exert control over drone usage within certain airspace. While the ownership right belongs to all property owners per theCausby decision, a school district, as a governmental entity, is uniquely situated to implement policy to regulate its airspace.
Indeed, many municipalities already impose restrictions on drone usage and almost every state in the union has and/or is considering legislation regulating drones. For example, in Michigan, it is against the law to use a drone to harass hunters or to use a drone to take fish or game. Several additional pieces of legislation relating to UAS use are currently pending in the Michigan House and Senate, including legislation to regulate drones flying over the state capitol and legislation prohibiting drones with 1,500 feet of correctional facilities. Additionally, the Michigan High School Athletic Association has prohibited drone use for any purpose by any persons at MHSAA tournament venues since 2014. Many other state athletic associations have similar restrictions and school districts in other states have passed Board resolutions adopting drone restrictions with respect to athletic events.
Drone Policy Guidelines
The issue of whether a governmental entity other than the federal government may regulate UAS usage has not been tested in Michigan. It does not appear to be subject to a direct challenge in other jurisdictions either. While this does not necessarily mean a policy or law will not ultimately be challenged, and perhaps successfully, the door remains open for some local regulation efforts, including regulation by school districts. If a school district wishes to adopt a UAS/drone policy, the following are guidelines to follow. These guidelines are based on suggestions from the FAA as well as a review of what other governmental entities, including school districts, across the country have adopted:
- Require registration and implement a certification process for the issuance of a permit if a person wishes to operate a drone over school property
- Include a minimum operating age of 18 (this could be modified for supervised student usage) and a maximum drone weight of 55 lbs.
- Limit potential approval to drones which are incapable of flying over 500 feet
- Only permit operation during daylight hours
- Prohibit image capturing capability or require specific permission to use for specific purposes (think student privacy issues)
- Require proof of appropriate liability insurance
- If implemented by the FAA (see above), require proof of registration of the drone with the FAA
- Require the controllers to maintain visual contact with the UAS and prohibit flight paths over certain areas, such as seating areas, playgrounds, etc.
These guidelines apply if a district wishes to allow, but regulate, drone usage. A district could ban all drone use. An outright ban should be limited to drones flying under 500 feet to provide the most protection from successful legal challenge.
Enforcement is another issue. Who do you call when you see a drone on school property? The answer will depend on who is flying the drone. If it is an unidentified person off school grounds, there may be little a district can immediately do. (Beware: people have been found civilly liable for destroying drones even when flying over their property and destroying a drone in flight could even be a violation of federal law.) Communicating with local law enforcement and the pertinent municipality is critical to determine whether there are any supporting laws that may also control drone use and provide assistance from local law enforcement. Also, the district’s drone policy should mandate compliance with the policy by students, employees and visitors, which will allow enforcement of appropriate disciplinary action for any violation by such a person under the district’s normal disciplinary processes.
In summary, regulation of drone usage through limitation or prohibition within the non-navigable airspace will likely be permitted despite the FAA’s regulation of the airspace in general and UAS’s specifically. However, given the fact that the FAA is still developing its regulations, it may be wise to wait until these are finalized to ensure that its policy is in compliance with the final regulations and does not need to be revised shortly after implementation. Additionally, legislation introduced in the Michigan House in October of 2015, HB 5026, purports to regulate how a “political subdivision of this state,” uses unmanned aerial vehicles for surveillance and evidence gathering purposes and also prohibits such an agency from disclosing information acquired through operation of a drone. As currently drafted, this pending legislation applies to schools and school districts and may require additions or amendments to drone policies if it becomes law.
In the meantime, however, a Board could adopt a resolution similar to the MHSAA’s prohibitions with respect to athletic events, including practices and scrimmages. Any policy should be carefully thought out and crafted to address the district’s specific needs and intentions after consultation with the district’s attorney.
Please note that this article is limited to what a district may do to regulate drone use that is not otherwise sanctioned by the district. It does not address what the district may need to do comply with FAA regulations if it wishes to, for example, record athletic practices using drones or use drones for research purposes. As noted above, the FAA has regulations addressing commercial use exemptions and allowing certain governmental agencies to obtain certificates of authority for aeronautical research purposes. The expected FAA regulations may also affect a district’s obligations with respect to its own use of drones. Stay tuned.