Locke Lord QuickStudy: Newton Defies the Laws of … the Federal Aviation Administration, and Finds its Efforts to Regulate Drone Operations Preempted by Federal Law

September 22, 2017
In Singer v. City of Newton, Case No. 1:17-CV-10071-WGY, a first of its kind decision, the United States District Court for the District Court of Massachusetts has found that portions of a local ordinance regulating the operation of Unmanned Aircraft Systems (“UAS” or “drones”) is preempted by federal law. The case arises out of an ordinance (the “Ordinance”) passed by the City of Newton (“Newton”) on December 19, 2016 regulating UAS operations within Newton. According to its preamble, the Ordinance was intended “to allow beneficial uses of [UAS] while also protecting the privacy of residents throughout the City” as well as to “prevent nuisances and other disturbances of the enjoyment of both public and private space.” 

In response, Dr. Michael S. Singer, a Newton resident and Federal Aviation Administration (“FAA”)-certified small UAS pilot, filed suit challenging on preemption grounds four specific portions of the Ordinance. In particular, Dr. Singer challenged the portions of the ordinance: (1) requiring registration of drones with the City Clerk’s office; (2) prohibiting flights below 400 feet over private property without express permission of the property owner; (3) prohibiting flights over public property without prior permission from the City of Newton; and (4) prohibiting any operations beyond the visual line of sight of the pilot.  

In ruling on the preemption issue, the District Court first considered the issue of field preemption, and found the FAA has not expressed an intent to regulate the entire field of unmanned aircraft operations. In doing so, the District Court cited the FAA’s prior statement that “[c]ertain legal aspects concerning small UAS use may be best addressed at the State or local level. For example, State law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.” Turning to the issue of conflict preemption, the Court found that each of the four challenged regulations conflicted with, and were thus preempted by, the FAA’s registration and operational rules for UAS. 

Of note, because the Plaintiff only challenged the foregoing elements of the Ordinance, the Court left in place the remaining portions, which, among other things, preclude drone use for conducting surveillance, capturing images of individuals where they have a reasonable expectation of privacy, or harassing, annoying or assaulting others. In addition, the District Court left open the option that the City of Newton could attempt to redraft the Ordinance in a way that would avoid conflict preemption. Depending on the goals of the City, such an amendment could be difficult to craft rendering such option little more than window dressing.

What does this Mean for You?

Newton is not alone in attempting to regulate drones. A panoply of state and local governments have enacted their own drone regulations in an effort to strike a balance between permitting drone operations and protecting the privacy and property rights of their residents. And, many of those regulations contain provisions similar to those preempted by the District Court. Thus, we expect that the Singer decision may lead to similar challenges in other jurisdictions, causing this already murky legal landscape to become all the more difficult to navigate. In addition, we anticipate this decision may place additional pressure on Congress to enact legislation expressly affording state and local governments a say in regulating UAS operations. Where those efforts may lead is anyone’s guess, but it is certain that this area of the law will not be settled for some time, and thus operators must carefully monitor the state and local laws of the jurisdictions in which they seek to operate.

To the extent you have questions regarding the current regulatory environment governing the commercial use of drones and how they may impact your business, the Locke Lord Aviation and Defense Group is ready to assist.

For more information on the matters discussed in this Locke Lord QuickStudy, please contact the authors.