The U.S. District Court of Massachusetts recently ruled that provisions of a local ordinance regulating the use of unmanned aircraft systems (“UAS” or “drones”) were preempted by federal law. This is the first preemption decision in the context of UAS regulation and, although limited in precedential value outside of Massachusetts, it is an encouraging development for UAS operators struggling to comply with the growing patchwork of state and local laws regulating the ownership and operation of UAS.
Numerous state and local legislatures across the United States have enacted laws and regulations addressing the use of UAS.1 These laws are varied and run the gamut in prohibiting activities such as: invasion of privacy and surveillance; operations over public and private property without the owner’s consent; interference with first responders; and operations in parks, at large events, near airports, near utilities, and schools. On December 19, 2016, the city of Newton, Massachusetts joined the trend when it passed Ordinance 20-64 (“the Ordinance”).
The Ordinance’s stated purpose was “to prevent nuisances and other disturbances of the enjoyment of both public and private space” in the interest of promoting “the public safety and welfare of the City and its residents.” To that end, it imposed certain requirements that were more onerous than those imposed by the Federal Aviation Administration (“FAA”). Specifically, the Ordinance required all UAS owners to register with the City, prohibited UAS operations below 400 feet over public or private property without the owners’ express permission, and prohibited UAS operations beyond the visual line of sight of the operator.
Singer v. City of Newton
On February 10, 2017, Dr. Michael Singer, a local resident and FAA certificated UAS pilot, filed a lawsuit challenging these four three provisions of the Ordinance on the grounds that federal law preempts local regulation of UAS.2 The city of Newton disagreed, arguing that the FAA gave local governments the power to co-regulate drones.
The district court rejected Singer’s field preemption argument finding that Congress has not intended to fully occupy the field of UAS regulation. Relying on FAA statements acknowledging that certain legal aspects concerning the operation of UAS may be best addressed at the state or local level, the court determined that the FAA contemplates co-regulation and concluded that the question of whether parallel UAS regulations are enforceable depends on principles of conflict preemption.
To establish conflict preemption, one must establish that the state or local law is in conflict with a federal law because (1) it is impossible to comply with both at the same time, (2) it interferes with the objectives of the federal law, or (3) it frustrates the accomplishment of the federal purpose. Here, Singer argued that the challenged provisions obstruct federal objectives and directly conflict with federal regulations. The court agreed that the Ordinance’s registration requirements were in direct conflict with the FAA’s explicit intent to be the exclusive regulatory authority for registration of UAS and found conflict preemption. Likewise, it agreed that provisions of the Ordinance which required prior permission for flight below 400 feet over private or public property effectively established a wholesale ban on UAS use and frustrated Congress and the FAA’s desire to integrate UAS into the national airspace. Lastly, the court found that the Ordinance provision pertaining to the operation of UAS beyond visual line of sight intervened in the FAA’s careful regulation of aircraft safety.
As a result, the district court ruled that all challenged provisions were preempted by federal law. Other Ordinance provisions, which include prohibitions on capturing images of individuals where they have an expectation of privacy and using UAS to conduct surveillance, harass, annoy or assault other, are unaffected and remain in force.
The Singer decision is significant in that it is the first of its kind. It confirms the FAA’s intent to leave room for state and local regulation but identifies and strikes down four specific provisions found to be in direct conflict with federal law and thereby preempted. Whether the decision emboldens others to step forward and challenge other state laws and local regulations remains to be seen. For now, there are four fewer local regulations for UAS operators to contend with.
1 See http://dronecenter.bard.edu/files/2017/03/CSD-Local-and-State-Drone-Laws-1.pdf for a survey of existing state and local UAS laws.
2 Singer v. City of Newton, Case No. 1 17-CV-10071-WGY.
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