For the first time, a federal court has invalidated portions of a local ordinance regulating Unmanned Aircraft Systems (UAS) or "drones." On September 21, 2017, the U.S. District Court of the District of Massachusetts ruled that the Ordinance adopted by the City of Newton, Massachusetts impermissibly conflicted with the Federal Aviation Administration's regulations.
The court's decision should be closely parsed by local and state governments that have adopted, or are considering adopting, rules related to UAS. Importantly, the court held that the FAA "explicitly contemplate[d] state or local regulation of pilotless aircraft." Accordingly, in the court’s view, local drone restrictions are presumptively enforceable, unless compliance with both local and federal regulations is impossible or if the local law "obstructs the objectives of federal regulation."
The City of Newton's Ordinance required owners of all drones under fifty-five pounds to register with the City Clerk's Office and pay a $10.00 fee. Additionally, the Ordinance prohibited the operation of a drone (1) below 400 feet over private property without the permission of the private property owner; (2) over City property at any altitude without permission of the City; or (3) beyond visual line of sight of the drone's operator.
As to the registration requirement, the court concluded that the FAA intended to be the exclusive registrar of UAS, and that the City's parallel registration requirement was therefore preempted. The court recognized that there may be "some space" that would allow the City to require registration of model drones in light of the U.S. Court of Appeals for the D.C. Circuit's recent ruling that the FAA lacked such authority. However, the court did not consider that argument further because the City's Ordinance applied on its face to all drones.
The court found that the Ordinance's operational restrictions collectively amounted to a "wholesale ban on drone use in Newton" absent prior permission. While acknowledging that "Congress and the FAA may have contemplated co-regulation of drones to a certain extent," the court ruled that a total ban within the City's jurisdiction went too far. In particular, the court was concerned that the Ordinance attempted to regulate the use of navigable airspace above 400 feet to the extent City property was overflown. The court also ruled that City could not impose "limits on the methods of piloting a drone beyond that which the FAA has already designated."
Notably, the plaintiff did not challenge, and the court did not consider, other aspects of the City's Ordinance, including the requirement for a permit to use City property for the landing or taking off of a drone, or restrictions on capturing a person's visual image or an audio recordings, using a drone to harass or annoy another person, or operations over emergency response efforts. The court also noted that the City may redraft the Ordinance to avoid conflict with FAA regulations and federal law.
This case is likely to become important precedent in challenges to other local drone restrictions throughout the United States. If you have any questions about this case or its implications, please do not hesitate to contact Eric Smith or Steven Osit.