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Drone rule would fly into cloudy legal skies

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Evanston’s proposed drone ordinance scheduled for introduction Monday night would send the city into uncharted legal territory that may open it to challenges.

Jeffrey Antonelli, a Chicago attorney with a specialty in drone law, says the city’s planned restrictions put it in the position of attempting to regulate the use of airspace, “something which is clearly and completely preempted by federal law.”

He notes a Federal Aviation Administration fact sheet which says “federal courts strictly scrutinize state and local regulation of overflight.”

Evanston, which allowed a two-year ban on commercial drone use in the city expire in 2015, now is considering sharp restrictions on recreational drone use in response to concerns raised by Alderman Melissa Wynne, 3rd Ward.

Wynne, at an April City Council meeting, said she was raising the issue after learning that the daughter of a resident had been hit by a drone on a local playground.

A report from the Center for the Study of the Drone at Bard College said that as of March, at least 135 communities in 31 states had enacted drone rules in recent years and that many of them may “contravene federal authority, and could result in legal conflict.”

Among the rules in nearby suburban communities:

  • Schaumburg bans the use of drones within 100 feet of permitted special events.
  • South Elgin requires a permit for the use of drones on village property. (And a resident there vowed to sue after being ticketed for flying his drone at a park without a permit last fall.)
  • The Skokie Park District and the Wilmette Park Board require permits for drone use in their parks.

But Evanston’s Law Department has opted to import the much more far reaching and restrictive regulatory scheme adopted by the City of Chicago.

Chicago’s ordinance, and Evanston’s proposed one, require permission from the owner of any property a drone flies over in “city airspace” and from any person who’s flown over.

But neither ordinance specifically defines what it means by the “city airspace” to which the ordinance applies — other than saying it’s airspace “within the jurisdiction of the city.”

An article in the Duke Law & Technology Review suggests that while the federal government clearly has preempted any state or local regulation of airspace above 500 feet, there may be room for local regulation below that level. But other authors suggest federal control extends down to ground level.

If it turns out the latter group is right, Evanston may find it has no airspace over which to claim jurisdiction.

Related story

City seeks to fence in drone hobbyists (6/9/17)

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