As states and municipalities lose right to regulate drone flight, their focus is likely to shift to requiring third party insurance coverage

The continually expanding number of drones being used for recreational and commercial purposes has caused state and municipal regulators in the United States to enact or consider myriad legislative responses to address the risk of accidents and invasions of privacy. To date, most of the laws passed or considered have focused on operational restrictions or registration requirements. The validity of those laws are in serious jeopardy, however, due to a recent decision of a federal district court in Massachusetts.

Singer v. Newton involved a challenge to a municipal ordinance that effectively banned drone flights over the city without property owners’ prior permission and also imposed visual line of sight requirements. On September 21, the district court issued a landmark decision striking down the ordinance and holding that federal regulation of the nation’s airspace preempted Newton's attempt to similarly regulate drone flight operations.

Clyde & Co supported the pro se plaintiff and provided the court with an historical overview of the extensive body of case law which clearly establishes federal preemption of state and local authority to regulate all forms of aviation operations. The decision is now on appeal but is expected to be affirmed.

Although this developing case law is expected to preclude all state and municipal laws regulating drone flight, the third party accident and privacy concerns of state and local lawmakers will remain and may even be exacerbated. Some states are now considering imposing mandatory insurance requirements to address these concerns.

We believe that in 2018, more states and municipalities will similarly address this issue and likely enact laws mandating recreational and drone insurance coverage for third party loss and that some may extend coverage requirements for invasion of privacy claims as well.