Overview
On September 21, 2017, Judge Young of the US District for the District of Massachusetts found challenged portions of a local drone ordinance to be preempted as in conflict with federal law. Singer v. City of Newton, No. 17-10071-WGY (D. Mass. Sept. 21, 2017). As the first federal court ruling to strike down local attempts to regulate drone (also referred to as an unmanned aircraft system (UAS)) use, this decision confirmed federal authority over drones’ use of airspace.
In 2016, the City Council of Newton, MA, passed an ordinance regulating wide-ranging aspects of drone use in Newton. The stated intent of the ordinance, based on privacy concerns, was “to promote the public safety and welfare of the City and its residents.”[1] The ordinance further stated that it was intended to be read and interpreted in harmony with Federal Aviation Administration (FAA) regulations. Michael Singer, a Newton resident who owns and operates multiple drones, sued the City, arguing that the following four provisions of the ordinance were preempted by federal law: (1) a requirement that owners register drones with the City, regardless of the altitude at which the drones operated; (2) a prohibition on drone operations below an altitude 400 feet over private property without the express permission of the property owner; (3) a prohibition on drone operations, with no altitude limit, over property owned by the City of Newton without prior permission from the City; and (4) a ban on any beyond visual line of sight (BVLOS) drone operations, also with no altitude limit[2]. Singer challenged these provisions on both field preemption and conflict preemption grounds.
The Court first considered whether field preemption applied to the challenged provisions. Singer argued a federal intent to occupy the field exists because the federal government regulates unmanned aircraft and local aircraft operations[3]. The City countered that the FAA expressly carved out matters such as privacy for state and local government regulation[4]. The Court found that FAA guidance on the topic did not go as far as the City suggested, but rather, the guidance implied that “whether parallel regulations are enforceable depends on the principles of conflict preemption.”[5] The Court then turned to Singer’s conflict preemption arguments. Addressing each argument in turn, the Court found all four of the challenged provisions to directly conflict with federal law and therefore be preempted.
First, regarding the drone registration requirement, the Court explained that the FAA “explicitly has indicated its intent to be the exclusive regulatory authority” for drone registration[6]. Furthermore, the Court found the registration requirement to be in “clear derogation of the FAA’s intended authority” because the provision had no altitude limit and thus reached into navigable airspace[7].
With respect to the two provisions prohibiting flight over private or City-owned property without the owner’s permission, the Court stated that the provisions “work in tandem . . . to create an essential ban on drone use within the limits of Newton.”[8] The Court found that this ban “thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.”[9] Additionally, the fact that the provision governing drone flight over City-owned property had no altitude limit alone was a ground for preemption, according to the Court, because the provision’s ban reached into navigable airspace[10].
Finally, regarding the ban on BVLOS drone operations, the Court explained that the ordinance was attempting to “regulate the method of operating of drones,” which implicates “the safe operation of aircraft.”[11] Aviation safety, however, “is an area of exclusive federal regulation.”[12] Moreover, the Court explained that the FAA’s regulations extensively address BVLOS operations and permit such operations through a waiver process[13]. Because this provision in the ordinance limited “the methods of piloting a drone beyond that which the FAA has already designated,” it was preempted as in conflict with federal law[14]. And again, the lack of an altitude limit on the provision’s reach was noted by the Court as a clear reason to find preemption[15].
This decision is significant because it confirms the superiority of federal authority over the safety and use of airspace by drones, even when there are colorable state privacy interests. The Court did note in its opinion that Newton’s City Council is free to re-draft the ordinance to avoid conflict preemption, but the ruling leaves little room for similar restrictions.
If you have any questions, or if you’d like more information, please contact Dane Jaques at +1 202 429 6435, Carol Gosain at +1 202 429 6461, Rebecca Lipe at +1 202 429 1353, or Sarah Nural +1 202 429 8103.
[1] Id. at 4 (quoting Newton Ordinances § 20-64)
[2] Id. at 4-5
[3] Id. at 9
[4] Id. at 9-10
[5] Id
[6] Id. at 11
[7] Id. at 12
[8] Id
[9] Id. at 13
[10] Id. at 12
[11] Id. at 14
[12] Id. at 14
[13] Id. at 15-16
[14] Id. at 16
[15] Id