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Federal Court Clarifies, Limits the Role of Local Governments in Drone Regulation

Ever since FAA issued its first set of regulations regarding the operation of unmanned aerial systems (“UAS”, or “drones”) in June 2016, local governments have been left wondering what was left for them to regulate in this rapidly growing field.  A recent decision by the Federal District Court for the District of Massachusetts, Singer v. City of Newton, is the first judicial attempt to answer this question.

In December 2016, the City of Newton passed an ordinance purporting to regulate the operation of drones in (and, more importantly, above) the City.  Among other things, the ordinance required drone owners to register their equipment with the City and prohibited flights (1) under 400 feet in altitude over any private property in the City without the property owner’s permission; (2) over City property without the City’s permission; (3) beyond “the visual line of sight of the Operator,” and (4) “in a manner that interferes with any manned aircraft.”  The plaintiff, a drone owner and operator, filed suit alleging that these portions of the City’s ordinance were preempted.

The Court, applying a traditional method of analyzing whether local laws are preempted by federal law, first analyzed whether the ordinance was invalid because FAA’s comprehensive regulation of drones “occupies the field” to the exclusion of state or local regulation.  The Court noted that FAA itself recognized some role for State and Local drone regulations, and rejected Singer’s “field” preemption arguments.

That, however, was hardly sufficient to save the ordinance because, as the Court found, the ordinance conflicted with federal regulations in a number of ways.

First, the Court noted that FAA had expressly undertaken to register all drones, and that the City therefore could not require its own registration.  The Court acknowledged, however, that the FAA’s own registration requirements had been struck down with respect to non-commercial drones.  Although the City had asked the Court to find the City could thus continue to require registration of non-commercial drones, the Court declined to address that issue at this time, noting that the ordinance, as written, did not make a distinction between commercial and non-commercial drones.

Second, the Court found that the City’s prohibitions on flights over private property under 400 feet (the maximum altitude in which drones are permitted to fly under FAA rules), and above City property at any altitude, effectively prohibited the operation of drones anywhere in the City.  The Court explained that although FAA may have left room for local co-regulation of drones, an ordinance that bans all that the FAA allows was simply going too far because it conflicted with FAA’s control of the nation’s airspace.

Finally, the Court addressed the portions of the Ordinance purporting to regulate how drones are flown.  Relying on a well-established line of cases holding that FAA alone is responsible for issues regarding the safe operation of traditional aircraft, the Court found that the same rule would apply to the regulation of drones, entirely preempting local regulation of “aircraft safety.”

The Court’s decision, in short, confirms that whatever the FAA meant when it acknowledged a role for local regulation of drones, it did not mean regulation that adds another layer to the federal government’s own regulation of navigable airspace or aircraft safety requirements.

The Court, however, did not address other areas of local drone regulation that FAA itself has recognized as potentially permissible, such as local land use and zoning laws regarding the locations from which drones may fly or trespass and privacy law issues that are normally left to state law.  Further, the FAA is expected to provide additional guidance on what it considers appropriate local regulation of drones which should help further clarify the issues of federal preemption for both local governments and drone operators.

The case is Singer v. City of Newton, D. Mass. Civil Action No. 17-1007 (Findings of Fact, Rulings of Law and Order of September 21, 2017).

About the Author

Mina S. Makarious – Associate

Mina represents clients on municipal, environmental, land use, and airport matters.

Please contact him at (617) 621-6525 or mmakarious@andersonkreiger.com.


Posted In: Drones

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