United States: Air Supremacy: Court Finds That Federal Aviation Regulations Preempt City Drone Regulation

Last Updated: October 12 2017
Article by Andrew Barr and Reid Gardner

On September 21, 2017, the District of Massachusetts ruled that Federal Aviation Regulations (FARs) preempt many of the restrictions that the City of Newton, Massachusetts, imposed on drones within its airspace. Although the decision is not binding on other jurisdictions, the ruling is a good indication of how other federal courts may see the same issue, and highlights—again—the tension between local and federal interests in regulating drones. The Singer v. City of Newton decision states that the FAA has exclusive responsibility for establishing safety requirements for all navigable airspace in the U.S., including low-level drone flying. Singer could be read as shutting the door on the possibility of cities establishing broad localized drone regulations for themselves. However, even Singer left open the possibility that cities or states could regulate some aspect of drone operations, especially if the locality worked in conjunction with its federal counterparts.

The Lawsuit. Dr. Michael S. Singer, a medical doctor and professor at Harvard, filed suit against the City of Newton challenging four provisions of a city ordinance that restricted the use of small unmanned aircraft (or drones) within city limits. Although the FAA already regulates drone flights in airspace below 400 feet above ground level or within the 400-foot radius of a structure, Newton sought to further regulate its own airspace by:

(1) requiring registration with the City for all drones;

(2) requiring the express permission of property owners to fly drones above any private property;

(3) requiring the prior permission of the City to fly drones above public land; and

(4) banning drone flight beyond the operator's visual line of sight.

Notably, each of these aspects is expressly contemplated by Part 107—the rules set forth by the FAA to govern drone operations. Accordingly, the Singer court struck down each of these provisions as impermissible encroachments into areas of FAA responsibility. The court found that the FAA is intended to be the exclusive regulatory authority for drone registration; that cities may not wholesale eliminate drone use over their airspace absent prior permission; and that the FAA has already adopted safety regulations that anticipate flying drones beyond line of sight with the help of a visual observer. Any future regulation by Newton would therefore have to be more narrowly constructed and avoid these areas of conflict with FAA regulation.  The Singer decision, at bottom, was a clear application of conflict preemption, and leaves open the larger question of to what extent a city could regulate drone operations that aren't expressly covered by the FARs.

The Reasoning. In regulatory arenas that are traditionally occupied by the federal government, state or local governments may only regulate where the rules do not conflict with federal rules. Additionally, if Congress intended the regulating agency to "occupy the field," state and local governments may not impose any additional regulation in that area. This is known as "conflict preemption" and "field preemption," respectively.

In this case, the court found that Congress intended the FAA to develop a comprehensive plan for airspace safety. Based on this finding, the court stated that the FAA has exclusive control of much of the field. Because the FAA declared its intent to be the exclusive registration authority for drones, states and localities are unlikely to be permitted to require additional registration. The court also found that aviation safety — both in terms of aircraft navigation and protection of individuals or property on the ground — is an exclusively federal area of regulation. Therefore, the court held, local governments may not impose their own registration requirements, nor develop their own comprehensive airspace management system.

Importantly, the court stopped short of declaring that the FAA occupies the entire field of airspace regulation. Both the FAA and the Court acknowledged that regulation of airspace in furtherance of specific functions of local governments may be permissible; indeed, the FAA expressly recommends that local governments consult with it when enacting drone restrictions of "flight altitude, flight paths; operational bans; or any regulation of the navigable airspace." The FAA also acknowledges that some of the traditional powers of local governments implicate drone regulation, such as "land use, zoning, privacy, trespass, and law enforcement operations."  The FAA and the court thus acknowledged that some drone laws, and in particular those in the areas and government functions listed, might not be preempted by FAA regulation. This latter finding is consistent with decades of precedent that permits localities to decide where aircraft take off and land, despite such a local regulation having an effect on aircraft operations.

The Implications. The most immediate impact of this ruling for the drone industry is that it may make patchwork regulatory requirements around the country less likely. This decision does not affect the FAA's process for commercial drone registration, drone operation requirements, or the FAA's waiver-application process for drone use. It also does not affect the FAA's long-established systems for managing controlled and restricted airspace. It does restrict to some degree what cities that want to impose additional drone requirements may be allowed to do. At least to the degree of Newton's drone ordinance, the court found that cities cannot impose extensive local regulations that could be seen as interfering or conflicting with the FAA's drone regulation scheme.

The concern for the FAA is that it may continue in many ways to lag behind in the regulation needed for this quickly evolving field. Proper regulation will help encourage new contributions to society by the drone industry, and ideally also help to assuage growing public concerns regarding safety and privacy related to drone use. As it stands, Congress and the FAA cannot necessarily rely on local or state lawmakers to do that regulatory job for them.

*Reid Gardner is a first-year associate in our San Diego office and has not passed the bar yet.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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Andrew Barr
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