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
- Brief Discussion on Preemption
- District Court’s Ruling
- How Does the Singer v. City of Newton Case Affect Me?
- How Can I Use This Case?
- Warning to States, Cities, and Local Governments
- Problems With This Ruling/Issues Not Addressed
- Actual Text of the Ruling
- Actual Text of the Ordinance
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
- 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).
- 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.
- 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.
- 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.
- 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:
- a) The owner’s name, address, email address and phone number;
- b) The make, model, and serial number, if available, of each pilotless aircraft to be registered;
- 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:
- a) over private property at an altitude below 400 feet without the express permission of the owner of said private property;
- b) at a distance beyond the visual line of sight of the Operator;
- c) in a manner that interferes with any manned aircraft;
- d) in a reckless, careless or negligent manner;
- 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;
- f) for the purpose of conducting surveillance unless expressly permitted by law or court order;
- 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;
- h) over any emergency response efforts;
- i) with the intent to harass, annoy, or assault a person, or to create or cause a public nuisance;
- 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
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