ENCINITAS — Encinitas is considering using its local authority to regulate drones after the Encinitas Traffic and Public Safety Commission voted to recommend the City Council draft a so-called drone ordinance a week before federal regulators announced new rules regarding drone operations.
The traffic commission on June 13 voted in favor of drafting an ordinance for the city attorney and council’s consideration.
‘An outright ban on drones does remove a lot of the positives of it,” Chairman Brian Grover said. “But I’ve been at Moonlight Beach with three drones overhead and it’s really damn annoying when they are just sitting there. I just think we need to agree that one, is it or is it not a public safety issue and do we want to ask staff to move forward with an ordinance, and I would say yes to both of those.”
Unmanned aircraft systems have become increasingly popular due to their recreational, photography and aeronautical applications, but their popularity has raised nuisance, public safety and security concerns from the local to national level.
The Federal Aviation Administration estimates that the number of commercial and hobbyist drones will increase from 2.5 million in 2016 to 7 million in 2020.
The city began tackling the issues surrounding drones following several incidents last year, including one at Moonlight Beach in August 2015 that received national attention after a man was arrested for felony vandalism after he threw his shirt at a drone that had been hovering above him and his friends. The charges were later dropped.
One local man, John Herron, drafted an extensive memo to the city about a number of the issues and incidents surrounding drones and urged the city to take action within its regulatory authority.
A number of cities, including Poway locally, have adopted urgency ordinances that prohibit the operation (takeoff and landing) of drones in certain areas or as in the case of Poway’s ordinance, in an area where an emergency has been declared.
City Attorney Glenn Sabine wrote a memo that concluded that while the FAA regulates airspace activities above 400 feet, the agency does not regulate hobbyists’ activities below 400 feet.
A week after the commission’s vote, the FAA announced the rollout of its highly anticipated rules on commercial drone flight, marking the agency’s first attempt at a comprehensive plan to ensure the popular remote-controlled aircraft can safely share the skies with commercial aircraft.
The FAA’s 624-page rule book allows commercial drones weighing up to 55 pounds to fly during daylight hours and lower than 400 feet in the air, or higher if within 400 feet of a taller building or tower. The drones must remain within sight of the operator or an observer who is in communication with the operator.
The operators must be at least 16 years old and pass an aeronautics test every 24 months for a certificate and a background check by the Transportation Security Administration.
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Cities across the United States continue to adopt sensible rules addressing low-cost drones that have flooded consumer markets – like L.A. (the second largest city in the country), Chicago, Miami, West Hollywood, Manhattan Beach, and others. A recent 7th Circuit decision addressed the doctrine of preemption in another industry, where Judge Easterbrook said: “[the Constitution] establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity.”
The FAA released data on March 25th revealing drone safety reports “increased dramatically” last year. This shows recreational drone owners increasingly flout “safety guidelines” and fly illegally because drone industry educational campaigns have no teeth. And a constant stream of dangerous drone incidents illustrates the public safety issues that exist and should be addressed by responsible local legislators. Allowing unpiloted aircraft to operate without any enforceable rules is like throwing a bunch of operating Cuisinarts into the air and hoping for the best. And if you question that, consider:
• A drone nearly killed a skier during a race in Italy. https://www.youtube.com/watch?v=TJu4kmcy8gQ.
• A toddler’s eyeball was sliced in half by a drone propeller after the experienced drone operator lost control in England. http://www.bbc.com/news/uk-england-hereford-worcester-34936739.
• Drones continue to interfere with emergency responders fighting wildfires, grounding aerial firefighters three different days last week, forcing the evacuation of 100 homes. Agency enlists high-tech help keeping drones from fires.
And last fall, Congressman Peter DeFazio said: “We’re dealing with a whole new generation of people. The same people where the words cell phones and etiquette don’t go together, are now getting their hands on drones.”
Local governments are managing drones and drone sensing technology because they have to. Congress gave no indication of federal exclusivity below the national airspace system as it pertains to drones. Section 336(a)(2) of the FAA Modernization and Reform Act of 2012 says model drones must be operated in accordance with a community-based set of safety guidelines, so the community should set the rules for the operation of recreational drones.
Many drone hobbyists have been misinformed. Preemption arguments by drone lobbyists typically begin with the false premise the FAA controls the airspace down to the lowest blade of grass in our backyards, and that’s wrong. Local regulations typically do not interfere with the FAA’s jurisdiction of “navigable airspace” as codified in 49 U.S.C. § 40103(b). This is generally 500 feet, or 1,000 feet in congested areas.
Drone corporations spent millions lobbying the FAA, Congress and executive agencies to include strong preemption language in the rule for small unmanned aircraft systems (“small UAS”, or commercial drones) rules released last week, but the FAA expressly rejected federal preemption over state and local drone laws. The FAA said: “certain legal aspects concerning small UAS may be best addressed at the State or local level.” The FAA’s conscious decision to exclude a federal preemption provision for commercial drones in the “navigable airspace” reinforces the important role of cities in promoting safe and efficient drone activity in the nation’s airspace. The FAA is finally signaling to local governments, like Encinitas, they are free to tailor supplemental drone regulations – for recreational drones and small commercial drones – to suit the unique needs of their jurisdictions and preferences of their residents.
More than 3 million people live in San Diego County, and more than 60,000 people live in Encinitas. The notion that low flying consumer drones can do whatever they want in the airspace just above our backyards, homes and public parks without any local regulation, is irresponsible. Management of this awesome technology is essential. That is why our responsible City leaders – as a matter of public safety and good public policy – have a legitimate say about drone operations in our community.
The f.a.a. spent years drafting a 600 page document requiring drone pilots to register, carry a license, put their registration number on the drone and follow numerous rules. Somehow, Encinitas feels they have the right to over ride the f.a.a. because some people find them irritating. If they truly believe they this maybe they should address a really annoying problem. Small private planes. I constantly see them flying at illegal, dangerous altitudes over homes , beaches etc. The noise is equivalent to a hundred drones. As for privacy rights; they are looking down on us at drone like altitudes and could easily have a camera like a drone. Encinitas needs to handle relevant problems and leave personal ” irritations” to themselves.
Sorry, the FAA relates airspace from the surface to “to the moon” over the US. Creating local regs that would prohibit legal UAS activities is, in effect, preempting federal law.
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