On August 29, 2016, regulations issued by the Federal Aviation Administration (FAA) went into effect that, for the first time in history, apply only to airspace below 500 feet. At the same time, in response to concerns over privacy and security, and the FAA’s delay in issuing these regulations, several states passed their own laws restricting drones. Simply put, these laws are on a collision course. The majority of commentators believe these state laws will be federally preempted, but they are most likely wrong. Very little attention has been paid to the strong argument that the FAA may not have authority to exclusively, or even partially, regulate that airspace, let alone that they cannot do so to the exclusion of state laws. This article aims to inform those debates. It highlights statutes used by the FAA, and even some courts, to assert regulatory authority, and it shows that relevant text in the U.S. Code is misleadingly incomplete and not actually the law. Also, reviving a hundred years of context, history, and legislative intent, this article highlights other congressional limitations that the FAA has exceeded. All told, this article concludes that states can restrict drones over their own low-lying airspace.
Stephen Migala, UAS: Understanding the Airspace of States,
J. Air L. & Com.