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Drones Revisited: Local Government Regulation

Introduction:

Earlier in our series on drones, we analyzed the Taylor v. Huerta case where the D.C. Circuit Court struck down an FAA regulation requiring the registration of recreational use drone operators. Today, we look at a recent case from the United States District Court of Massachusetts invalidating portions of a local ordinance pertaining to drones.

City of Newton Ordinance:

On December 19, 2016, the City of Newton passed an ordinance relating to the use of unmanned drones within the city confines. The ordinance was passed "in order to prevent nuisances and other disturbances of the enjoyment of both public and private space..."

Specifically, the ordinance: (1) banned the use of pilotless aircraft (a) below an altitude of 400 feet over private property without express permission of the owner of the private property; (b) beyond the visual line of sight of the operator; (c) in a manner that interferes with any manned aircraft; (d) over newton city property without prior permission; or (e) to conduct surveillance or invade any space for a person has a reasonable expectation of privacy. The ordinance also required operators to register drones with the City Clerk.

Michael Singer, a FAA-certified small unmanned aircraft pilot, brought suit against the City of Newton seeking to invalidate the ordinance on the basis of federal preemption.

On September 21, 2017 the United States District Court for the District of Massachusetts agreed, striking down portions of the Newton ordinance based on a finding that several of the key provisions were preempted by federal law.

First, the Court held that the FAA has exclusive authority for the registration of pilotless aircraft, invalidating the ordinance's requirement that operators register their aircraft with the City Clerk.

Because federal law requires unmanned aircraft to operate below 400 feet, the effect of the ordinance's restriction banning use under 400 feet over private property and over city property at any altitude was, in effect, a complete ban within the city limits. Thus, the Court found that those provisions were preempted by the FAA's regulation of airspace. Likewise, the Court found the portion of the ordinance requiring use within the visual sight of the operator was preempted because the FAA already has regulations allowing a remote pilot to have a visual observer to assist the pilot to see and avoid other air traffic or objects aloft or on the ground.

The remaining provisions of the ordinance-banning use that interferes with manned aircraft, or to conduct surveillance or invade any space for which a person has a reasonable expectation of privacy-were not preempted by federal law, and are still in effect.

Key Take-Aways:

(1) Regulation of unmanned aircraft is an ever-evolving area of the law that will continue to expand as drones become more and more integrated into our daily lives, both recreationally and commercially. As drones become more prevalent, local governments will enter the fray of regulation, and will have to be careful to craft regulations that do not conflict with federal law.

(2) Singer makes it clear that any attempt to regulate in areas where the FAA has established rules will likely be preempted and not enforceable to the extent they conflict with federal law. However, local regulations tied to protection of individual privacy will likely be upheld.

(3) Because laws and regulations are rapidly changing, operators of unmanned aircraft must stay abreast of the latest changes to protect themselves from criminal and civil liability.


Newton Ordinances § 20-64.

Newton Ordinances § 20-64(b) and (c).

Singer v. City of Newton, C.A. No. 17-10071-WGY (U.S.D.C., D. Mass, 2017).

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