On October 12, 2018, Governor Wolf signed into effect Act 78 which not only established criminal offenses for the unlawful use of a drone (“unmanned aircraft”), with noted exceptions, but also provided a preemption of local drone ordinances.
Does your municipality have an already established “drone” ordinance? If so, it may now be preempted by Act 78.
What does Act 78 provide? First, it is now unlawful for an individual to use an unmanned aircraft if the person intentionally or knowingly:
- Conducts surveillance of another person in a private place;
- Operates in a manner which places another person in reasonable fear of bodily injury; and/or
- Delivers, provides or furnishes contraband in violation to other laws.
A person convicted of the offense of the unlawful use of unmanned aircraft in the surveillance or placing a person in reasonable fear of bodily injury would be guilty of a summary offense punishable up to a fine of up to $300.00. For a person in violation of subsection A(3), delivering contraband, a conviction constitutes a felony of the second degree.
Second, Act 78 provides for exceptions for persons operating unmanned aircrafts. These include:
- Law enforcement officers engaged in the performance of their official duties;
- Department of corrections personnel;
- Emergency medical responders;
- Utility company employees or agents engaged in the performance of their official duties; and/or
- Government agencies, employees or agents while engaged in the performance of their official duties.
An exception is also provided for aerial data collection – provided the person engaged in the collection utilized the unmanned aircraft in a manner which complies with the Federal Aviation Administration and Regulations (“FAA”) or if the aircraft is authorized by an FAA exemption.
Generally, for these exceptions to apply, your municipal employees/officials must be engaged in the performance of their official duties; however, do not confuse the exceptions with a blanket ability to fly a drone anywhere, anytime! The FAA guidelines still apply, and, Act 78 does not address when the use of a drone violates a person’s Fourth Amendment rights and general privacy rights.
Finally, and important to any municipality who has enacted a “Drone Ordinance” or is thinking of doing so, Act 78 prohibits a municipality from otherwise regulating the ownership or operation of an unmanned aircraft unless expressly authorized by statute. Should your municipality own a drone, nothing in the Act will prohibit that municipality from using the unmanned aircraft within the boundaries of the municipality for municipal purposes and regulating that use. But, be aware (or beware), Act 78 preempts a municipality’s ability to enact any ordinance, resolution or rule regulating the ownership or operation of an unmanned aircraft as to individuals other than the municipality.
Should you have any questions as to how Act 78 may affect your municipality, please contact Sheryl L. Brown at firstname.lastname@example.org
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