In what appears to be the first-ever ruling of its kind, a federal judge in Massachusetts has overturned portions of a local UAS ordinance on grounds that it was preempted by federal law. While the ruling provides some clarity as to just how far state and local governments may go in regulating UAS operations, it remains to be seen whether other courts will follow suit.
On December 19, 2016, the city council for the City of Newton passed an ordinance regulating the use of "pilotless aircraft" within city limits. 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."
The ordinance imposes registration requirements upon owners of all pilotless aircraft and sets forth operating restrictions, including, among others, bans on the use of pilotless aircraft:
- below an altitude of 400 feet over private property without the express permission of the property owner
- "beyond the visual line of sight of the Operator"
- "in a manner that interferes with any manned aircraft"
- over Newton city property without prior permission or
- to conduct surveillance or invade any place where a person has a reasonable expectation of privacy.
Violations of the ordinance are punishable by a $50 fine following a one-time warning.
In Singer v. City of Newton, Michael Singer, a Newton resident and FAA-certified commercial UAS pilot who owns and operates multiple UASs in Newton, challenged the portions of the ordinance which require local registration of UASs and prohibit operation of UASs above 400 feet, beyond the operator's visual line of sight, or in certain areas without a permit or express permission. Singer argued that the ordinance was preempted by federal law "because it attempts to regulate an almost exclusively federal area of law in a way that conflicts with Congress's purpose."
The court agreed. It first held that the local registration requirement is conflict preempted because the FAA "explicitly has indicated its intent to be the exclusive authority for registration of pilotless aircraft," and Newton's attempt to register all UASs, without limit as to the altitude at which they operate, is a "clear derogation of the FAA's intended authority."
The court next held that the prohibition on the operation of UASs over public property without prior permission from Newton does not limit its reach to any altitude, which "alone is a ground for preemption because it reaches into the navigable airspace." Further, the court found that this prohibition works in tandem with the prohibition on the use of UASs below 400 feet over any private property without express permission of the property owner to create a wholesale ban on UAS use within the limits of Newton. Accordingly, the court held that these prohibitions thwart both the FAA's objectives and Congress's mandate to the FAA to integrate UASs into the national airspace and are, therefore, preempted.
Finally, the court held that the ordinance's complete prohibition on UAS operations beyond visual line of sight of the operator is preempted because it "limits the methods of piloting a UAS beyond that which the FAA has regulated, while also reaching into navigable space. Intervening in the FAA's carefully considered regulation of aircraft safety cannot stand."
The Singer decision is significant because it may persuade other cities and states to think twice before enacting UAS laws that go beyond those already promulgated by the FAA. However, this decision leaves the unchallenged portions of the ordinance in place, suggesting that states and cities may regulate at least some aspects of UAS operations.
A final comment from the court is also significant: "nothing prevents Newton from re-drafting the Ordinance to avoid conflict preemption." Other states and cities may be able to draft or redraft their laws to avoid a conflict preemption challenge.