Singer v. City of Newton-(Case Declaring Local Drone Law Illegal)


Update: The City of Newton appealed it to the circuit court but later asked for the case to be dismissed which the court granted.

The City of Newton, Massachusetts passed a drone ordinance on December 19, 2016. The ordinance requires all drones to be registered, bans drones below 400ft above ground level without property owner permission, and prohibits flights beyond the visual line of sight of the operator.

Dr. Michael Singer, a medical doctor and professor at Harvard, filed suit in the federal district court of Massachusetts. On September 21, 2017, the court ruled that four provisions of the local ordinance were conflict preempted.

To read more drone law cases, go to my Drone Lawsuit/Litigation Database.

Table of Contents:

The Problematic Provisions of Newton’s Drone Ordinance

The City of Newton passed an ordinance which regulated the flight of all unmanned aircraft. The ordinance that passed had multiple provisions but Singer challenged 4 of them. Interesting to note, at the time of this lawsuit, Massachusetts didn’t have an state level drone laws.  I have organized the ordinance provisions below to ease in conceptualization.

1. Registration.
Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

2. Operational Restrictions.
A. Altitude
Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

B. Beyond Line of Sight of the Operator
Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Brief Discussion on Preemption

Article 6 of the United States Constitution basically stands for where federal and state law interact/conflict, federal law wins. This is called preemption. There are two types of preemption: express and implied preemption. Express is easy to figure out as the law states it clearly. However, with implied preemption, things are more difficult. Courts have to figure what to do, or really what Congress should have said, but didn’t, and now the court has to clean up the mess. There are two types of implied preemption: field and conflict. Field preemption is where courts infer that Congress has regulated the area so much that they did not intend to leave any area of that field available to be regulated by the states. Conflict preemption is where courts imply that Congress did not intend to allow state laws to substantially frustrate the implementation of the federal law.
Dr. Michael Singer filed the lawsuit and alleged the 4 provisions above were field and conflict preempted by federal statutes and federal regulations.

District Court’s Ruling:

The court ruled the local ordinance was conflict preempted. Singer raised 4 issues and the court responded to each them.

1. Registration.

Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

Court: The City of Newton argued that the Taylor v. FAA case created a void to allow registration however there is no void created by the Taylor case. The FAA intended to be the exclusive register of unmanned aircraft. Therefore, this ordinance is conflict preempted.

2. Operational Restrictions.
A. Altitude

Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Court: This is conflict preempted because Congress intended the FAA to use airspace to integrate drones. The FAA picked 0-400ft above ground level for non-recreational flyers. This ordinance effectively frustrates Congress’ and FAA’s implementation of the integration of drones into the national airspace from 0-400ft above the ground level.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

Court: This is conflict preempted because there is no altitude limit, it goes up into navigable airspace.

B. Beyond Line of Sight of the Operator

Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Court: The Ordinance seeks to regulate the method of operating of drones, necessarily implicating the safe operation of aircraft. Courts have recognized that aviation safety is an area of exclusive federal regulation. The Ordinance limits the methods of piloting a drone beyond that which the FAA has already designated, while also reaching into navigable space. Intervening in the FAA’s careful regulation of aircraft safety cannot stand; thus subsection (c)(1)(b) is preempted.

In short, drone registration, complete drone bans, regulating navigable airspace, or limiting “the methods of piloting a drone beyond that which the FAA has already designated” are conflict preempted.

How Does the Singer v. City of Newton Case Affect Me?

This case is only binding in the jurisdiction of the federal district court of Massachusetts. It only struck down 4 provisions of the ordinance, not all of it.  Courts from other jurisdictions can look at this ruling but do NOT need to follow it. I suspect, however, other courts will likely follow the same rationale and invalidate state and local drone laws on the grounds they are conflict preempted ONLY. They will likely not answer field preemption questions.

Keep in mind that this case can be appealed to the 1st Federal Circuit Court of Appeals (Rhode Island, Massachusetts, New Hampshire, and Maine) and ruled upon which would result in more people being affected. I don’t know if it will be appealed.

How Can I Use This Case?

This case is extremely important in giving state and local governments guidance on what not to do. You should send this case to any elected officials who have passed a drone law or who are considering passing a drone law.

Warning to States, Cities, and Local Governments:

Many states, cities, towns, etc. have passed drone laws which would most likely be held by this judge to be conflict preempted. This ruling is only for the jurisdiction of the federal district court of Massachusetts, but other courts around the country can be persuaded by the reasoning in this ruling. In other words, this judge teed up how other courts can easily answer these preemption laws.

This judge ruled that drone registration, complete drone bans, regulating navigable airspace, and limiting “the methods of piloting a drone beyond that which the FAA has already designated” are all conflict preempted.

Problems With This Ruling/Issues Not Addressed:

• The court ruled on the grounds of conflict preemption but did not rule that aviation was field preempted or whether the airspace was expressly preempted.
• United States v. Causby is a U.S. Supreme Court case which raises the idea of a person owning airspace from the ground up to the “immediate reaches of the enveloping atmosphere.” What if the City of Newton were to create drone laws that applied to Causby airspace over their property or require permission to operate in Causby airspace over private property?
• The judge gave too much deference to the FAA’s guidance document to state and local governments when preemption is primarily focusing on Congress, not an agency’s thoughts, which constantly change, on what it thinks Congress wanted.
• With conflict preemption, the City of Newton can just go back and rework the law and see if Singer files suit again or see if they get struck down again. It would have been more beneficial for the drone industry to have a ruling on whether the airspace was expressly preempted or the field of aviation is field preempted. Instead, the court ruled very narrowly to resolve the case, but leave many issues on the table.
• The court struck down particular provisions which means other states and sub-divisions will just rework their laws to not step on any of the particular “land mines” that the City of Newton stepped on.
• How low does navigable airspace descend for drones? I would argue it goes all the way to the blade of grass because that is where drones take off and land from but the judge seems to indicate navigable airspace is somehow related to 14 CFR 91.119.
• What happens if the state or government does a copy-paste of the FAA regulations or says something along the lines of “You must do whatever the FAA says”?

Actual Text of the Ruling

 

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

 

MICHAEL S. SINGER,

Plaintiff,

CITY OF NEWTON,

Defendant.

 

YOUNG, D.J. September 21, 2017

 

FINDINGS OF FACT, RULINGS OF LAW, & ORDER

 

  1. INTRODUCTION

 

The crux of this dispute is whether portions of a certain

ordinance (the “Ordinance”) passed by the City of Newton

(“Newton”) on December 19, 2016 are preempted. First Am. Compl.

Declaratory and Injunctive Relief, ECF No. 12. Michael S.

Singer (“Singer”) challenges portions of the Ordinance which

require that all owners of pilotless aircraft (commonly referred

to as “drones” or “UAS”) register their pilotless aircraft with

Newton, and also prohibit operation of pilotless aircraft out of

the operator’s line of sight or in certain areas without permit

or express permission. Id.; Def. City Newton’s Mem. Law Supp.

Cross Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J., Ex. 2, Newton

Ordinances § 20-64, ECF No. 40-3.

 

 

In early March, Newton answered Singer’s complaint, Answer

Def. City of Newton First Am. Compl., ECF No. 17, and both

parties appeared before the Court soon after, when they agreed

to cross-file motions for summary judgment and proceed on a case

stated basis,1 Electronic Clerk’s Notes, ECF No. 21. Both

parties subsequently filed motions for summary judgment, Pl.’s

Corrected Mot. Summ. J., ECF No. 34; Def. City of Newton’s Cross

Mot. Summ. J., ECF No. 39, and fully briefed the issues, Pl.’s

Corrected Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), ECF No. 35;

Pl.’s Resp. Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”), ECF No.

50; Pl.’s Resp. City’s Statement Undisputed Facts (“Pl.’s Resp.

Facts”), ECF No. 51; Def. City Newton’s Mem. Law Supp. Cross

Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J. (“Def.’s Mem.”), ECF

No. 40; Def. City of Newton’s Statement Undisputed Facts Supp.

Cross Mot. Summ. J. and Resps. Pl.’s Statement Undisputed

Material Facts Supp. Mot. Summ. J. (“Def.’s Facts”), ECF No. 41;

1 The case stated procedure allows the Court, with the

parties’ agreement, to render a judgment based on the largely

undisputed record in cases where there are minimal factual

disputes. TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6

(1st Cir. 2007). In its review of the record, “[t]he [C]ourt is

. . . entitled to ‘engage in a certain amount of factfinding,

including the drawing of inferences.’” Id. (quoting United

Paperworkers Int’l Union Local 14 v. International Paper Co., 64

F.3d 28, 31 (1st Cir. 1995)).See also Amici Curiae Br. (“Amicus Br.”), ECF No. 57.2 After

oral argument on June 13, 2017, this Court took the matter under

advisement. Electronic Clerk’s Notes, ECF No. 59.

 

2. FINDINGS OF FACT

Newton is a municipality in the Commonwealth of

Massachusetts and is organized under a charter pursuant to the

Home Rule Amendment of the Massachusetts Constitution. Pl.’s

Resp. Facts ¶ 1; Def.’s Facts ¶ 1. Singer resides in Newton.

Am. Compl. ¶ 22. He is a Federal Aviation Administration

(“FAA”)-certified small unmanned aircraft pilot and owns and

operates multiple drones in Newton. Id. ¶¶ 22, 25. Singer does

not operate or register his drones as a hobbyist. Tr. Case-

Stated Hearing (“Tr.”) 20:15-18, ECF No. 60.

In August 2015, members of Newton’s City Council proposed

discussing the possibility of regulating drones for the

principal purpose of protecting the privacy interests of

Newton’s residents. Pl.’s Resp. Facts ¶ 3; Def.’s Facts ¶ 3.

On March 23, 2016, an initial draft of the Ordinance was

presented for discussion. See Def.’s Mem., Ex. 3, Public Safety

& Transportation Committee Report dated Mar. 23, 2016 1, ECF No.

40-4. Following further inquiry and amendment, see, e.g.,

Def.’s Mem., Ex. 7, Public Safety & Transportation Committee

Report dated May 5, 2016 1, ECF No. 40-8; Def.’s Mem., Ex. 9,

Public Safety & Transportation Committee Report dated Sept. 7,

2016 6-7, ECF No. 40-10, but without FAA approval, Def.’s Mem.,

Ex. 16, Def. City of Newton’s Answers Pl.’s First Set Interrogs.

(“Def.’s Answers Interrogs.”) 3, ECF No. 40-17, Newton’s City

Council approved the final Ordinance on December 19, 2016,

Def.’s Mem., Ex. 12, Public Safety & Transportation Committee

Report dated Dec. 19, 2016 1, ECF No. 40-13.

 

The Ordinance states in part:

Purpose: The use of pilotless aircraft is an increasingly

popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also

protecting the privacy of residents throughout the City.

In order to prevent nuisances and other disturbances of the

enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is

intended to promote the public safety and welfare of the

City and its residents. In furtherance of its stated

purpose, this section is intended to be read and

interpreted in harmony with all relevant rules and

regulations of the Federal Aviation Administration, and any

other federal, state and local laws and regulations.

 

 

Def.’s Mem., Ex. 2, Newton Ordinances § 20-64, ECF No. 40-3.

“Pilotless aircraft” is defined as “an unmanned, powered aerial

vehicle, weighing less than 55 pounds, that is operated without

direct human contact from within or on the aircraft.” Id. § 20-

64(a). In section (b), the Ordinance imposes certain

registration requirements upon owners of all pilotless aircraft.

Id. § 20-64(b). Section (c) sets forth operating prohibitions, including, inter alia, 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, id.

  • 20-64(c)(1)(a), “beyond the visual line of sight of the

Operator,” id. § 20-64(c)(1)(b), “in a manner that interferes

with any manned aircraft,” id. § 20-64(c)(1)(c), over Newton

city property without prior permission, id. § 20-64(c)(1)(e), or

to conduct surveillance or invade any place where a person has a

reasonable expectation of privacy, id. § 20-64(c)(1)(f)-(g).

Violations of the Ordinance are punishable by a $50 fine

following a one-time warning. Id. § 20-64(f).

 

III. RULINGS OF LAW

Specifically, Singer challenges four subsections of the

Ordinance: the registration requirements of section (b) and the

operation limits of subsections (c)(1)(a), (c)(1)(b), and

(c)(1)(e). Pl.’s Mem 3-4; Pl.’s Resp. i. Singer argues that

the Ordinance is preempted by federal law because it attempts to

regulate an almost exclusively federal area of law, Pl.’s Mem.

6-15, in a way that conflicts with Congress’s purpose, id. at

14-15. In turn, Newton posits that the Ordinance is not

preempted by federal law because it falls within an area of law

that the FAA expressly carved out for local governments to

regulate, Def.’s Mem. 8-10, and thus can be read in harmony with

federal aviation laws and regulations, id. at 10-11.

A. Preemption Standards

The Supremacy Clause of the United States Constitution

provides that federal laws are supreme, U.S. Const. art. VI, cl.

2, thus requiring that federal laws preempt any conflicting

state or local regulations, see Maryland v. Louisiana, 451 U.S.

725, 746 (1981) (citing McCulloch v. Maryland, 4 Wheat. 316, 427

(1819)). Under our federalist system, however, a court must be

wary of invalidating laws in areas traditionally left to the

states unless the court is entirely convinced that Congress

intended to override state regulation. See, e.g., Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991) (citing Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). In contrast, if a

state government attempts to regulate an area traditionally

occupied by the federal government, a court need not seek to

avoid preemption. See United States v. Locke, 529 U.S. 89, 108

(2000). Neither of these circumstances requires that Congress

explicitly have stated its purpose; “[t]he question, at bottom,

is one of statutory intent.” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 383 (1992).

 

If Congress has not expressly preempted an area of law,

then a court must determine whether field or conflict preemption

is evident. See French v. Pan Am Express, Inc., 869 F.2d 1, 2

(1st Cir. 1989). Field preemption occurs where federal

regulation is so pervasive and dominant that one can infer

Congressional intent to occupy the field. See Massachusetts

Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 179 (1st

Cir. 1999) (citing Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947); French, 869 F.2d at 2). Conflict preemption

arises when compliance with both state and federal regulations

is impossible or if state law obstructs the objectives of the

federal regulation. See Grant’s Dairy – Me., LLC v.

Commissioner of Me. Dept. of Agric., Food & Rural Res., 232 F.3d

8, 15 (1st Cir. 2000) (citing Gade v. National Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).

B. The Federal Aviation Administration

Congress has stated that “[t]he United States Government

has exclusive sovereignty of airspace of the United States.” 49

U.S.C. § 40103(a)(1). This declaration does not preclude states

or municipalities from passing any valid aviation regulations,

see Braniff Airways v. Nebraska State Bd. of Equalization &

Assessment, 347 U.S. 590, 595 (1954), but courts generally

recognize that Congress extensively controls much of the field,

see, e.g., Chicago & S. Air Lines, Inc. v. Waterman Steamship

Corp., 333 U.S. 103, 105, 107 (1948); United Parcel Serv., Inc.

Flores-Galarza, 318 F.3d 323, 336 (1st Cir. 2003).

Accordingly, where a state’s exercise of police power infringes

upon the federal government’s regulation of aviation, state law

is preempted. See City of Burbank v. Lockheed Air Terminal

Inc., 411 U.S. 624, 638-39 (1973).

In the FAA Modernization and Reform Act of 2012, Congress

directed the FAA to “develop a comprehensive plan to safely

accelerate the integration of civil unmanned aircraft systems

into the national airspace system,” FAA Modernization and Reform

Act of 2012, Pub. L. No. 112-95 § 332, 126 Stat. 11, 73 (2012)

(codified at 49 U.S.C. § 40101 note), while limiting the FAA

from “promulgat[ing] any rule or regulation regarding a model

aircraft,” id. § 336(a). Under this directive, the FAA

promulgated 14 C.F.R. part 107, which declares that it “applies

to the registration, airman certification, and operation of

civil small unmanned aircraft systems[3] within the United

States.” 14 C.F.R. § 107.1(a). The rule requires, inter alia,

that anyone controlling a small unmanned aircraft system

register with the FAA, id. §§ 91.203, 107.13; and keep the

aircraft within the visual line of sight of the operator or a

designated visual observer, id. §§ 107.3, 107.31, and below an

altitude of 400 feet above ground level or within a 400 foot

radius of a structure, id. § 107.51(b).

 

 

  1. Field Preemption

Singer argues that because the federal government regulates

unmanned aircraft and local aircraft operations, there is

federal intent to occupy the field. Pl.’s Mem. 6-11; Pl.’s

Resp. 3; see also Amicus Br. 7-29. Newton does not challenge

that aviation is a traditionally federal field, but counters

that federal regulations explicitly grant local authorities the

power to co-regulate unmanned aircraft. Def.’s Mem. 8-11.

The FAA has stated:

 

[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.

. . . The Fact Sheet also summarizes the Federal

responsibility for ensuring the safety of flight as well as

the safety of people and property on the ground as a result

of the operation of aircraft. Substantial air safety

issues are implicated when State or local governments

attempt to regulate the operation of aircraft in the

national airspace. The Fact Sheet provides examples of

State and local laws affecting UAS for which consultation

with the FAA is recommended and those that are likely to

fall within State and local government authority. For

example, consultation with FAA is recommended when State or

local governments enact operation UAS restrictions on

flight altitude, flight paths; operational bans; or any

regulation of the navigable airspace. The Fact Sheet also

notes that laws traditionally related to State and local

police power — including land use, zoning, privacy,

trespass, and law enforcement operations — generally are

not subject to Federal regulation.

 

81 Fed. Reg. 42063 § (III)(K)(6). Thus, the FAA explicitly

contemplates state or local regulation of pilotless aircraft,

defeating Singer’s argument that the whole field is exclusive to the federal government. The FAA’s guidance, however, does not

go quite as far as Newton argues — rather than an express

carve-out for state and localities to regulate, the guidance

hints that whether parallel regulations are enforceable depends

on the principles of conflict preemption.4

D. Conflict Preemption

Singer argues that the challenged sections of the Ordinance

obstruct federal objectives and directly conflict with federal

regulations. Pl.’s Mem. 11-17. Newton fails to respond

specifically to these arguments, again asserting that the FAA

has granted states and localities the power to co-regulate

pilotless aircraft. Def.’s Mem. 8-11. The Court addresses each

challenged subsection of the Ordinance in turn.

 

  1. Section (b)

Singer argues that section (b) of the Ordinance infringes

upon and impermissibly exceeds the FAA’s exclusive registration

requirements. Pl.’s Mem. 11-15; Pl.’s Resp. 6-7. Section (b)

states: “Owners of all pilotless aircraft shall register their

pilotless aircraft with the City Clerk’s Office, either

individually or as a member of a club . . . .” Newton

Ordinances § 20-64(b). The Ordinance defines “pilotless aircraft” as “an unmanned, powered aerial vehicle, weighing less

than 55 pounds, that is operated without direct human contact

from within or on the aircraft.” Id. § 20-64(a).

The FAA has also implemented mandatory registration of

certain drones. See 14 C.F.R. §§ 48.1-48.205. Although such

registration initially applied both to model and commercial

drones, the FAA may not require registration of model aircraft,

because doing so would directly conflict with the Congressional

mandate in the FAA Modernization and Reform Act. See Taylor v.

Huerta, 856 F.3d 1089, 1092, 1094 (D.C. Cir. 2017). Newton

argues that this space creates a void in which the city may

regulate drones. Tr. 9:5-10:1. The FAA, however, explicitly

has indicated its intent to be the exclusive regulatory

authority for registration of pilotless aircraft: “Because

Federal registration is the exclusive means for registering UAS

for purposes of operating an aircraft in navigable airspace, no

state or local government may impose an additional registration

requirement on the operation of UAS in navigable airspace

without first obtaining FAA approval.” Def.’s Mem., Ex. 14,

State and Local Regulation of Unmanned Aircraft Systems (UAS)

Fact Sheet5 (“FAA UAS Fact Sheet”) 2, ECF No. 40-15. Newton did

5 Although the FAA UAS Fact Sheet is not a formal rule, it

is the FAA’s interpretation of its own rule, which this Court

accords deference under Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 413-14 (1945). not obtain FAA approval before enacting the Ordinance. Def.’s

Answers Interrogs. 3. Further, regardless of whether there is

some space that would allow Newton to require registration of

model drones, here Newton seeks to register all drones, Tr.

10:3-14, without limit as to the at which altitude they operate,

in clear derogation of the FAA’s intended authority.

Accordingly, the Ordinance’s registration requirements are

preempted.

 

  1. Subsections (c)(1)(a) and (c)(1)(e)

Singer argues that subsections (c)(1)(a) and (c)(1)(e)

conflict with FAA-permitted flight, Pl.’s Mem. 11, and restrict

flight within the navigable airspace, id. at 12-14. Subsection

(c)(1)(a) prohibits pilotless aircraft flight below an altitude

of 400 feet over any private property without the express

permission of the property owner. Newton Ordinances § 20-

64(c)(1)(a). Subsection (c)(1)(e) prohibits pilotless aircraft

flight over public property without prior permission from

Newton. Id. § 20-64(c)(1)(e). Notably, subsection (c)(1)(e)

does not limit its reach to any altitude. See id. This alone

is a ground for preemption of the subsection because it

certainly reaches into navigable airspace, see 49 U.S.C.

40102(a)(32); 14 C.F.R. § 91.119. Subsections (c)(1)(a) and

(c)(1)(e) work in tandem, however, to create an essential ban on

drone use within the limits of Newton. Nowhere in the city may an individual operate a drone without first having permission

from the owner of the land below, be that Newton or a private

landowner.

 

The FAA is charged with “prescrib[ing] air traffic

regulations on the flight of aircraft . . . for —

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground; [and]

(C) using the navigable airspace efficiently.” 49 U.S.C.

40103(b)(2). In 2012, Congress tasked the FAA with

“develop[ing] a comprehensive plan to safely accelerate the

integration of civil unmanned aircraft systems into the national

airspace system.” Pub. L. No. 112-95 § 332. In so doing, the

FAA mandated that drone operators keep drones below an altitude

of 400 feet from the ground or a structure. 14 C.F.R.

107.51(b). Newton’s choice to restrict any drone use below

this altitude thus works to eliminate any drone use in the

confines of the city, absent prior permission. This thwarts not

only the FAA’s objectives, but also those of Congress for the

FAA to integrate drones into the national airspace. Although

Congress and the FAA may have contemplated co-regulation of

drones to a certain extent, see 81 Fed. Reg. 42063

  • (III)(K)(6), this hardly permits an interpretation that

essentially constitutes a wholesale ban on drone use in Newton.

Accordingly, subsections (c)(1)(a) and (c)(1)(e) are preempted.

 

  1. Subsection (c)(1)(b)

Singer argues that subsection (c)(1)(b) conflicts with the

FAA’s visual observer rule and related waiver process, which

only the FAA can modify. Pl.’s Mem. 13 (citing 49 U.S.C.

  • 106(f)(2), (g)(1); 14 C.F.R. §§ 107.31, 107.205). Subsection

(c)(1)(b) states that no pilotless aircraft may be operated “at

a distance beyond the visual line of sight of the Operator.”

Newton Ordinances § 20-64(c)(1)(b). The Ordinance neither

defines the term “Operator,” nor sets an altitude limit.

The FAA “requires a delicate balance between safety and

efficiency, and the protection of persons on the ground . . . .

The interdependence of these factors requires a uniform and

exclusive system of federal regulation.” City of Burbank, 411

U.S. at 638-39 (internal citations omitted). The Ordinance

seeks to regulate the method of operating of drones, necessarily

implicating the safe operation of aircraft. Courts have

recognized that aviation safety is an area of exclusive federal

regulation. See, e.g., Goodspeed Airport LLC v. East Haddam

Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 208 (2d

Cir. 2011) (“Congress has established its intent to occupy the

entire field of air safety, thereby preempting state regulation

of that field.”); US Airways, Inc. v. O’Donnell, 627 F.3d 1318,

1326 (10th Cir. 2010) (“[F]ederal regulation occupies the field

of aviation safety to the exclusion of state regulations.”); Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007)

(“Congress has indicated its intent to occupy the field of

aviation safety.”). The First Circuit, in fact, has ruled “that

Congress intended to occupy the field of pilot regulation

related to air safety.” French, 869 F.2d at 4. In French, the

First Circuit took note of Congress’s delegation of authority to

the FAA to issue the certificate — and the terms for obtaining

it — required for any person to pilot a commercial aircraft.

See id. at 3. Concluding that this grant of authority and the

FAA’s subsequent regulations expressed Congress’s intent to

preempt any state law in the area, id. at 4, the First Circuit

struck down Rhode Island’s statute requiring airline pilots to

submit to drug testing, see id. at 7.

 

The circumstances are not so different here. Congress has

given the FAA the responsibility of regulating the use of

airspace for aircraft navigation and to protect individuals and

property on the ground, 49 U.S.C. § 40103(b)(2), and has

specifically directed the FAA to integrate drones into the

national airspace system, Pub. L. No. 112-95 § 332. In

furtherance of this duty, the FAA has designated specific rules

regarding the visual line of sight for pilotless aircraft

operation. See 14 C.F.R. §§ 107.31-35, 107.205. First, the FAA

requires either that (1) a remote pilot both command and

manipulate the flight controls or (2) a visual observer be able to see the drone throughout its flight. Id. § 107.31. The

regulations define “visual observer” as “a person who is

designated by the remote pilot in command to assist the remote

pilot in command and the person manipulating the flight controls

of the small UAS to see and avoid other air traffic or objects

aloft or on the ground.” Id. § 107.3. Second, the FAA allows

waiver of the visual observer rule. Id. §§ 107.200, 205.

The Ordinance limits the methods of piloting a drone beyond

that which the FAA has already designated, while also reaching

into navigable space. See Newton Ordinances § 20-64(c)(1)(b).

Intervening in the FAA’s careful regulation of aircraft safety

cannot stand; thus subsection (c)(1)(b) is preempted.

 

CONCLUSION

For the foregoing reasons, this Court holds that Ordinance

sections (b), (c)(1)(a), (c)(1)(b), and (c)(1)(e) are preempted

and judgment will enter so declaring. As it is unchallenged,

the remainder of Newton’s Ordinance stands. Of course, nothing

prevents Newton from re-drafting the Ordinance to avoid conflict

preemption.

 

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE

 

Actual Text of Newton’s Ordinance

Sec. 20-64. Pilotless Aircraft Operation.

Purpose: The use of pilotless aircraft is an increasingly popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also protecting the privacy of residents throughout the City. In

order to prevent nuisances and other disturbances of the enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is intended to promote the public safety and welfare of the City

and its residents. In furtherance of its stated purpose, this section is intended to be read and interpreted in harmony

with all relevant rules and regulations of the Federal Aviation Administration, and any other federal, state and

local laws and regulations.

 

(a) Definitions:

Pilotless Aircraft – an unmanned, powered aerial vehicle, weighing less than 55 pounds, that is operated

without direct human contact from within or on the aircraft.

(b) Registration: Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office,

either individually or as a member of a club, as follows:

(1) Individual Registration: Individual owners of pilotless aircraft shall register each pilotless aircraft with the

City Clerk’s office, prior to operation. The cost of registration shall be $10.00 per Owner and such cost of

registration shall include all pilotless aircraft owned by the Owner. Owners must have proof of

registration in their possession when operating a pilotless aircraft. Registration shall include the

following:

  1. a) The owner’s name, address, email address and phone number;
  2. b) The make, model, and serial number, if available, of each pilotless aircraft to be registered;
  3. c) A copy of the Owner’s Federal Aviation Administration Certificate of Registration for pilotless

aircraft;

 

(2) Club Registration: Members of a pilotless aircraft hobby club may register their pilotless aircraft through a

responsible adult member of the Club. Each Club shall be issued a single identifying registration number

by the City Clerk’s Office to be affixed to each pilotless aircraft belonging to members of the Club. The

cost of Club Registration shall be $10 per Club and the cost of registration shall include all members of

that Club. The responsible adult member shall update the Club’s roster of members with the Clerk’s

office on an annual basis. All other requirements of Section 2(a)(i-iii) shall apply to Club registration.

(c) Operating Prohibitions. The use and operation of all pilotless aircraft within the City shall be subject to the

following prohibitions.

(1) No pilotless aircraft shall be operated:

  1. a) over private property at an altitude below 400 feet without the express permission of the owner of said private property;
  2. b) at a distance beyond the visual line of sight of the Operator;
  3. c) in a manner that interferes with any manned aircraft;
  4. d) in a reckless, careless or negligent manner;
  5. e) over any school, school grounds, or other City property or sporting event without prior permission

from the City, unless a permit is required as in Section 4, below;

  1. f) for the purpose of conducting surveillance unless expressly permitted by law or court order;
  2. g) 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;

  1. h) over any emergency response efforts;
  2. i) with the intent to harass, annoy, or assault a person, or to create or cause a public nuisance;
  3. j) in violation of federal or state law, or any Ordinance of the City of Newton.

(2) The Chief of Police, or designee, may prohibit the use or operation of pilotless aircraft where it is allowed,

or allow the operation of pilotless aircraft where it is prohibited, during an impending or existing

emergency, or when such use or operation would pose a threat to public safety.

(d) Permit May be Required:

 

(1) Individual Permits: A permit may be required to use land maintained by the Parks and Recreation

Department, or by any other Department or Commission of the City, to launch or land a pilotless aircraft.

Such permits may be issued by the Parks and Recreation Department Head, or designee, or the City entity

charged with managing the property, or designee. Individual operators shall adhere to the registration

requirements of Section 2 above.

 

(2) Event Permits: The Parks and Recreation Department, or any Department or Commission charged with

managing land owned by the City, may issue Permits for groups and special events. Such Event Permits

will be issued to a responsible person who will insure that all operators participating in the event adhere to

the requirements of this ordinance, except that individual participants in an event under this subsection are

not required to register in accordance with Section 2.

 

(3) Educational Permits: The Parks and Recreation Department, or any other City agency with authority over

the use and maintenance of City land, may permit the operation of pilotless aircraft for educational

purposes. Educational permits must be issued to a responsible adult, and in conjunction with an

educational purpose sanctioned by an educational organization.

 

(e) Noise Ordinance: All Operators shall comply with the Noise Ordinance at Section 20-13, as amended, at all

times while operating pilotless aircraft within the City.

(f) Penalties: A violation of any section of this Ordinance shall result in a warning for the first offense and shall

be punishable by a fine of $50.00 for each offense thereafter.

(g) Separate Violations: Action taken pursuant to this section shall not bar any separate action by any other City

Department for any other violations.

(h) Severability: If any provision of this section is held to be invalid by a court of competent jurisdiction then

such provision shall be considered severable from the remaining provisions, which shall remain in full force and

effect.

(i) Regulations: The City and its Departments may promulgate rules, regulations and policies for the

implementation of this Ordinance. (Ord. No. A-96, 12-19-16)

Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.