UAS: Preemption Means Preemption!!

State and local governments have not been shy about attempting to regulate almost every aspect of drone operations.  Some of these efforts have been completely appropriate and aimed at areas subject to local control, such as prevention of stalking and voyeurism.  However, all too often, state and local governments have also turned their attention to issues completely under federal control.

One example of just such an ill advised ordinance was passed by the City of Newton, Massachusetts in December 2016.  This law:

  1. Required that local UAS operators register their aircraft with the city;
  2. Prohibited flight over private property without permission of the owner;
  3. Prohibited flight beyond visual line of sight in certain areas without a permit from the town; and
  4. Prohibited surveillance of persons where they have a reasonable expectation of privacy.

Shortly after the law was passed, a local resident, Michael Singer, challenged the ordinance, claiming that the requirements were preempted by federal law.  The town defended the law, claiming that it was aimed at protecting the rights and privacy of local residents, which is a local matter.

The Court considering the challenge began its analysis by noting that by statute, “the United States Government has exclusive sovereignty of the airspace of the United States.”  As a result, the Congress has exclusive control over most of the field of aviation.  More specifically, the Court looked to the FAA Modernization and Reform Act of 2012, which tasked the FAA with developing a comprehensive plan to integrate UAS into the national airspace system.  The result of this directive was the creation of Part 107 of the Federal Aviation Regulations, which sets out comprehensive rules and standards for small UAS operations.  The Court ruled, based on this, that any restriction imposed by state or local government that conflicts with a federal regulation is preempted and invalid.  The Court then examined whether the challenged provisions conflict with federal law.

With regard to the local registration requirement, the Court held that the FAA had previously stated that it intended the federal UAS registration requirements to be the exclusive method of registration.  As a result, the local rule, which seeks to register all UAS, is invalid.

The Court also held that the limitation on flight below 400’ over private property and the prohibition on flights over all public property without permission of the city, were improper.  The Court ruled that the effect of the regulation was essentially a ban on all UAS operations within city limits.  This was in direct conflict with 14 C.F.R. 107.51(b), which generally permits UAS operation below 400 feet without regard to who owns the property.  The Court also found that the ordinance thwarts the intent of the Congress that the FAA to integrate UAS operations into the airspace.

The town’s restriction of beyond visual line of sight operations was also ruled invalid.  The Court noted that this part of the ordinance was aimed at aviation safety, which is under the exclusive jurisdiction of the FAA.  Part 107 has rules related to visual line of sight operations and also provides a system for obtaining a waiver to permit beyond visual line of sight flight.  The court held that the city is barred from prohibiting what federal law permits.

What is truly disappointing about the Newton town ordinance, and the large number of similar ordinances around the country, is the amount of wasted time and money they impose on the  courts, the town, and private citizens like Mr. Singer.  The outcome in this case was never really in doubt, as the FAA warned state and local governments in December 2015 that much of what they were doing with regard to drone regulation was preempted by federal law.  Hopefully, this decision will finally put state and local governments on notice of the limits of their authority in aviation matters, and we can finally put these matters behind us.

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