United States: Local Drone Law Struck Down By Federal Preemption

Joel Roberson is a Partner for Holland & Knight's Washington, D.C. office.

Jennifer Nowak is an Associate for Holland & Knight's Washington, D.C. office.

On Sept. 21, a federal court for the first time struck down local ordinance attempting to regulate the operation of unmanned aircraft systems (UAS or drones) within its jurisdiction. The United States District Court for the District of Massachusetts invalidated parts of an ordinance passed by the City of Newton, Massachusetts, which were challenged by a local UAS operator. (Singer v. City of Newton, No. 17-100071-WGY, 2017 WL 4176477 (D. Mass. Sept. 21, 2017).) For state and local governments wishing to regulate some aspect of UAS operation within their jurisdictions, this decision may be useful as an indicator of where federal courts are likely to draw the lines when faced with preemption challenges in this area.  

Over the past several years, federal regulation of UAS operations in the national airspace by the Federal Aviation Administration (FAA) has struggled to catch up with the desires of drone operators to use UAS for new and innovative operations. On June 21, 2016, FAA released regulations that govern the operation of UAS for civil or commercial purposes, commonly known as the Part 107 regulations. At the same time, an analysis by the National Conference of State Legislatures (NCSL) has found that over 40 states have created their own laws and regulations to govern local UAS operations. The proliferation of drone operations has caused policymakers to question the extent to which the traditional "exclusive sovereignty" of the FAA over manned aircraft that take off and land from airports and fly over 500 feet applies to unmanned aircraft that take off and land from virtually anywhere and fly under 400 feet.

Summary of the Singer v. Newton Decision:

The judge in the Singer v. Newton case found that the City of Newton's local drone ordinance was preempted on all counts included in the challenge, while the unchallenged portions of the Newton ordinance remain in effect. Specifically, the judge found that the following provisions of the City's drone ordinance were preempted:

  • Local registration requirements applicable to owners of all pilotless aircraft;
  • A ban on the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property;
  • A ban on the use of a pilotless aircraft "beyond the visual line of sight of the Operator"; and
  • A ban on the use of a pilotless aircraft over Newton city property without prior permission.

In an unusual reliance upon an FAA "Fact Sheet" (a document published in the Federal Register, but without the effect of notice and comment rulemaking), in which the FAA described a potential role for local governance over certain aspects of UAS operation, the judge ruled that the ordinance was not subject to "field preemption" because the Fact Sheet demonstrated that FAA did not intend to occupy the entire field. (FAA State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet) Instead, the judge ruled that the challenged sections of the local ordinance are subject to "conflict preemption" because they "obstruct federal objectives and directly conflict with federal regulations." 

What the Court Found Preempted:

Local Registration Requirements: The judge ruled that despite the recent decision in Taylor v. Huerta (856 F.3d 1089 (D.C. Cir. 2017)) invalidating FAA's requirement that recreational UAS users (sometimes called "hobbyists") register their UAS, FAA "has explicitly indicated its intent to be the exclusive regulatory authority for registration of pilotless aircraft." As a result, the judge decided the City's registration requirement is conflict preempted.

Location and Altitude Restrictions:The judge found that the ban on flying over private property up to 400 feet and over City property at all altitudes without permission, collectively created an all-out ban on UAS operation within the limits of the City. The judge found that this framework conflicted with FAA's regulation of unmanned aircraft because it "thwarts not only the FAA's objectives, but also those of Congress for the FAA to integrate drones into the national airspace." 

Beyond Visual Line of Sight Operations: The court found that FAA has already promulgated a similar prohibition for beyond visual line of sight operations and a process whereby pilots can obtain a waiver of that provision. The court found this ordinance provision conflicted with FAA's regulations and caused the Newton ordinance to impermissibly limit piloting methods beyond the limits FAA has set, while also reaching into navigable airspace, over which the FAA holds jurisdiction.

What the Court Found Remained Effective:

The judge concluded that, "As it is unchallenged, the remainder of Newton's Ordinance stands," due to a severability clause in the ordinance. Notably, the portions of the Newton ordinance that were unchallenged in this suit and remain in effect today include the following prohibitions on drone operations:

  • in a manner that interferes with any manned aircraft;
  • in a reckless, careless or negligent manner;
  • for the purpose of conducting surveillance unless expressly permitted by law or court order;
  • for the purpose of capturing a person's visual image, audio recording or other physical impression in any place where that person would have a reasonable expectation of privacy;
  • over any emergency response efforts;
  • with the intent to harass, annoy, or assault a person, or to create or cause a public nuisance;
  • in violation of federal or state law, or any Ordinance of the City of Newton.

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