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City of Newton, Massachusetts can’t require drone operators to register their machines with the city
AVweb Insider
Newton’s Law Struck Down By Paul Bertorelli We don’t often find cause to clap for the meddling regulatory overreach of the FAA, but the agency won one this week that I, for one, am personally cheering. http://www.abajournal.com/images/mai...one_ruling.pdf U.S. District Judge William G. Young said the city of Newton, Massachusetts (near Boston) can’t require drone operators to register their machines with the city, nor can it restrict them from flying below 400 feet. A suit against Newton’s law was filed in January by Michael Singer, a local physician and inventor. To be accurate, the FAA wasn’t directly involved. In his complaint, Singer said the December 2016 law essentially banned drones from the city limits of Newton and was thus counter to federal law under a doctrine called preemption. That essentially supports the FAA’s view that it and it alone is the agency solely responsible for regulating things that fly. In its legal rejoinder to Singer’s suit, Newton argued that the federal government allows localities to co-regulate aviation. Judge Young wasn’t buying that argument: “This [Newton’s ordinance] thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.” Right call, right language. Young’s ruling was, however, just another signpost on what will surely be a long and bumpy road toward integrating drones into the national airspace. The FAA is often reviled—and I’ve done some of the reviling—for its plodding, sclerotic performance in promulgating drone regulations. But like a drunk weaving up to the bar before last call, it’s getting there, however slowly. I know readers of this blog are understandably fearful of the profusion of remotely piloted vehicles buzzing around. I don’t share the fear, but I don’t dismiss it either. Either way, if you’re involved in GA at any level, you should be happy about this decision, just as you should be happy with a court finding overturning restrictive noise ordinances at East Hampton Airport earlier this year. That’s because governments at the state, city and county level are necessarily concerned with the narrow complaints of their local constituencies. The old money at Sag Harbor might just as soon convert East Hampton Airport back to pasture land but, failing that, let’s pass an ordinance to keep those noisy jets and helicopters from using it. The overbearing federal government via the FAA pushes back and often relies on the courts to make its directives stick. The Newton decision may prove to be of more than local import, at least for a time. Other local governments are entertaining ordinances to prohibit the use of drones in their communities and those with smart city attorneys will hear the message for what it is: Tread carefully. The judge left open the question of whether the city could regulate more broadly on noise and privacy issues and he essentially invited the city to recast the law to avoid the preemption issue. In other words, Newton could legislate noise requirements that apply to all vehicles, not just those that fly. It could also write specific privacy statutes to protect property owners and individuals who want to be left unmolested by the prying eyes of a flying GoPro. Compared to what threat drones may or may not represent, the privacy issue is all but incomprehensively complex. Privacy is under constant threat from data mining, from facial recognition, from surveillance cameras, from RFID chips, from smart power meters, from cloud computing and ad infinitum. Drones, take a number. If you want real privacy, lease a cave in Afghanistan. Except we’ve got a cloud of drones over there, too. Without specifically saying so, Judge Young contributed directly to what, in his opinion, he said was the FAA’s requirement for “a delicate balance between safety and efficiency.” Although he might not have intended it that way, the efficiency in this context is the ability of the unmanned aviation segment to expand and thrive without undue hindrance from a mess of local laws and regulations. That has to be balanced against reasonable protection of the public from being brained by one of these things. No single court decision will settle this once and for all. Think of it as a paint-by-the-numbers picture that’s slowly becoming discernible. We’ll get there eventually. ================================================== =============== http://www.abajournal.com/images/mai...one_ruling.pdf [4] Def.’s Mem., Ex. 7, Public Safety & Transportation Committee Report dated May 5, 2016 1, ECF No. 40-8; Def.’s Mem., Ex. 9, Public Safety & Transportation Committee Report dated Sept. 7, 2016 6-7, ECF No. 40-10, but without FAA approval, Def.’s Mem., Ex. 16, Def. City of Newton’s Answers Pl.’s First Set Interrogs. (“Def.’s Answers Interrogs.”) 3, ECF No. 40-17, Newton’s City Council approved the final Ordinance on December 19, 2016, Def.’s Mem., Ex. 12, Public Safety & Transportation Committee Report dated Dec. 19, 2016 1, ECF No. 40-13. The Ordinance states in part: Purpose: The use of pilotless aircraft is an increasingly popular pastime as well as learning tool. It is important to allow beneficial uses of these devices while also protecting the privacy of residents throughout the City. In order to prevent nuisances and other disturbances of the enjoyment of both public and private space, regulation of pilotless aircraft is required. The following section is intended to promote the public safety and welfare of the City and its residents. In furtherance of its stated purpose, this section is intended to be read and interpreted in harmony with all relevant rules and regulations of the Federal Aviation Administration, and any other federal, state and local laws and regulations. Def.’s Mem., Ex. 2, Newton Ordinances § 20-64, ECF No. 40-3. “Pilotless aircraft” is defined as “an unmanned, powered aerial vehicle, weighing less than 55 pounds, that is operated without direct human contact from within or on the aircraft.” Id. § 20- 64(a). In section (b), the Ordinance imposes certain registration requirements upon owners of all pilotless aircraft. Id. § 20-64(b). Section (c) sets forth operating prohibitions, Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 4 of 16 [8] is preempted. See City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-39 (1973). In the FAA Modernization and Reform Act of 2012, Congress directed the FAA to “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system,” FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 § 332, 126 Stat. 11, 73 (2012) (codified at 49 U.S.C. § 40101 note), while limiting the FAA from “promulgat[ing] any rule or regulation regarding a model aircraft,” id. § 336(a). Under this directive, the FAA promulgated 14 C.F.R. part 107, which declares that it “applies to the registration, airman certification, and operation of civil small unmanned aircraft systems [3] within the United States.” 14 C.F.R. § 107.1(a). The rule requires, inter alia, that anyone controlling a small unmanned aircraft system register with the FAA, id. §§ 91.203, 107.13; and keep the aircraft within the visual line of sight of the operator or a designated visual observer, id. §§ 107.3, 107.31, and below an altitude of 400 feet above ground level or within a 400 foot radius of a structure, id. § 107.51(b). 3 The FAA defines “small unmanned aircraft” as “an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft,” and “small unmanned aircraft system” as “a small unmanned aircraft and its associated elements.” 14 C.F.R. § 107.3. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 8 of 16 [9] C. Field Preemption Singer argues that because the federal government regulates unmanned aircraft and local aircraft operations, there is federal intent to occupy the field. Pl.’s Mem. 6-11; Pl.’s Resp. 3; see also Amicus Br. 7-29. Newton does not challenge that aviation is a traditionally federal field, but counters that federal regulations explicitly grant local authorities the power to co-regulate unmanned aircraft. Def.’s Mem. 8-11. The FAA has stated: [C]ertain legal aspects concerning small UAS use may be best addressed at the State or local level. For example, State law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS. .. . . The Fact Sheet also summarizes the Federal responsibility for ensuring the safety of flight as well as the safety of people and property on the ground as a result of the operation of aircraft. Substantial air safety issues are implicated when State or local governments attempt to regulate the operation of aircraft in the national airspace. The Fact Sheet provides examples of State and local laws affecting UAS for which consultation with the FAA is recommended and those that are likely to fall within State and local government authority. For example, consultation with FAA is recommended when State or local governments enact operation UAS restrictions on flight altitude, flight paths; operational bans; or any regulation of the navigable airspace. The Fact Sheet also notes that laws traditionally related to State and local police power -- including land use, zoning, privacy, trespass, and law enforcement operations -- generally are not subject to Federal regulation. 81 Fed. Reg. 42063 § (III)(K)(6). Thus, the FAA explicitly contemplates state or local regulation of pilotless aircraft, defeating Singer’s argument that the whole field is exclusive to Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 9 of 16 [10] the federal government. The FAA’s guidance, however, does not go quite as far as Newton argues -- rather than an express carve-out for state and localities to regulate, the guidance hints that whether parallel regulations are enforceable depends on the principles of conflict preemption. 4 D. Conflict Preemption Singer argues that the challenged sections of the Ordinance obstruct federal objectives and directly conflict with federal regulations. Pl.’s Mem. 11-17. Newton fails to respond specifically to these arguments, again asserting that the FAA has granted states and localities the power to co-regulate pilotless aircraft. Def.’s Mem. 8-11. The Court addresses each challenged subsection of the Ordinance in turn. 1. Section (b) Singer argues that section (b) of the Ordinance infringes upon and impermissibly exceeds the FAA’s exclusive registration requirements. Pl.’s Mem. 11-15; Pl.’s Resp. 6-7. Section (b) states: “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .” Newton Ordinances § 20-64(b). The Ordinance defines “pilotless 4 In fact, Newton has acknowledged that “[c]ommercial drone use is heavily regulated by the FAA [and] pre-empted from municipal regulations.” Public Safety & Transportation Committee Report dated Mar. 23, 2016 3. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 10 of 16 [11] 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.” Id. § 20-64(a). The FAA has also implemented mandatory registration of certain drones. See 14 C.F.R. §§ 48.1-48.205. Although such registration initially applied both to model and commercial drones, the FAA may not require registration of model aircraft, because doing so would directly conflict with the Congressional mandate in the FAA Modernization and Reform Act. See Taylor v. Huerta, 856 F.3d 1089, 1092, 1094 (D.C. Cir. 2017). Newton argues that this space creates a void in which the city may regulate drones. Tr. 9:5-10:1. The FAA, however, explicitly has indicated its intent to be the exclusive regulatory authority for registration of pilotless aircraft: “Because Federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.” Def.’s Mem., Ex. 14, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet 5 (“FAA UAS Fact Sheet”) 2, ECF No. 40-15. Newton did 5 Although the FAA UAS Fact Sheet is not a formal rule, it is the FAA’s interpretation of its own rule, which this Court accords deference under Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945). Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 11 of 16 [12] not obtain FAA approval before enacting the Ordinance. Def.’s Answers Interrogs. 3. Further, regardless of whether there is some space that would allow Newton to require registration of model drones, here Newton seeks to register all drones, Tr. 10:3-14, without limit as to the at which altitude they operate, in clear derogation of the FAA’s intended authority. Accordingly, the Ordinance’s registration requirements are preempted. 2. Subsections (c)(1)(a) and (c)(1)(e) Singer argues that subsections (c)(1)(a) and (c)(1)(e) conflict with FAA-permitted flight, Pl.’s Mem. 11, and restrict flight within the navigable airspace, id. at 12-14. Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner. Newton Ordinances § 20- 64(c)(1)(a). Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property without prior permission from Newton. Id. § 20-64(c)(1)(e). Notably, subsection (c)(1)(e) does not limit its reach to any altitude. See id. This alone is a ground for preemption of the subsection because it certainly reaches into navigable airspace, see 49 U.S.C. § 40102(a)(32); 14 C.F.R. § 91.119. Subsections (c)(1)(a) and (c)(1)(e) work in tandem, however, to create an essential ban on drone use within the limits of Newton. Nowhere in the city may Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 12 of 16 [13] an individual operate a drone without first having permission from the owner of the land below, be that Newton or a private landowner. The FAA is charged with “prescrib[ing] air traffic regulations on the flight of aircraft . . . for -- (A) navigating, protecting, and identifying aircraft; (B) protecting individuals and property on the ground; [and] (C) using the navigable airspace efficiently.” 49 U.S.C. § 40103(b)(2). In 2012, Congress tasked the FAA with “develop[ing] a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” Pub. L. No. 112-95 § 332. In so doing, the FAA mandated that drone operators keep drones below an altitude of 400 feet from the ground or a structure. 14 C.F.R. § 107.51(b). Newton’s choice to restrict any drone use below this altitude thus works to eliminate any drone use in the confines of the city, absent prior permission. This thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace. Although Congress and the FAA may have contemplated co-regulation of drones to a certain extent, see 81 Fed. Reg. 42063 § (III)(K)(6), this hardly permits an interpretation that essentially constitutes a wholesale ban on drone use in Newton. Accordingly, subsections (c)(1)(a) and (c)(1)(e) are preempted. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 13 of 16 [14] 3. Subsection (c)(1)(b) Singer argues that subsection (c)(1)(b) conflicts with the FAA’s visual observer rule and related waiver process, which only the FAA can modify. Pl.’s Mem. 13 (citing 49 U.S.C. § 106(f)(2), (g)(1); 14 C.F.R. §§ 107.31, 107.205). Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” Newton Ordinances § 20-64(c)(1)(b). The Ordinance neither defines the term “Operator,” nor sets an altitude limit. The FAA “requires a delicate balance between safety and efficiency, and the protection of persons on the ground . . . . The interdependence of these factors requires a uniform and exclusive system of federal regulation.” City of Burbank, 411 U.S. at 638-39 (internal citations omitted). The Ordinance seeks to regulate the method of operating of drones, necessarily implicating the safe operation of aircraft. Courts have recognized that aviation safety is an area of exclusive federal regulation. See, e.g., Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 208 (2d Cir. 2011) (“Congress has established its intent to occupy the entire field of air safety, thereby preempting state regulation of that field.”); US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010) (“[F]ederal regulation occupies the field of aviation safety to the exclusion of state regulations.”); Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 14 of 16 [15] Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007) (“Congress has indicated its intent to occupy the field of aviation safety.”). The First Circuit, in fact, has ruled “that Congress intended to occupy the field of pilot regulation related to air safety.” French, 869 F.2d at 4. In French, the First Circuit took note of Congress’s delegation of authority to the FAA to issue the certificate -- and the terms for obtaining it -- required for any person to pilot a commercial aircraft. See id. at 3. Concluding that this grant of authority and the FAA’s subsequent regulations expressed Congress’s intent to preempt any state law in the area, id. at 4, the First Circuit struck down Rhode Island’s statute requiring airline pilots to submit to drug testing, see id. at 7. The circumstances are not so different here. Congress has given the FAA the responsibility of regulating the use of airspace for aircraft navigation and to protect individuals and property on the ground, 49 U.S.C. § 40103(b)(2), and has specifically directed the FAA to integrate drones into the national airspace system, Pub. L. No. 112-95 § 332. In furtherance of this duty, the FAA has designated specific rules regarding the visual line of sight for pilotless aircraft operation. See 14 C.F.R. §§ 107.31-35, 107.205. First, the FAA requires either that (1) a remote pilot both command and manipulate the flight controls or (2) a visual observer be able Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 15 of 16 [16] to see the drone throughout its flight. Id. § 107.31. The regulations define “visual observer” as “a person who is designated by the remote pilot in command to assist the remote pilot in command and the person manipulating the flight controls of the small UAS to see and avoid other air traffic or objects aloft or on the ground.” Id. § 107.3. Second, the FAA allows waiver of the visual observer rule. Id. §§ 107.200, 205. The Ordinance limits the methods of piloting a drone beyond that which the FAA has already designated, while also reaching into navigable space. See Newton Ordinances § 20-64(c)(1)(b). Intervening in the FAA’s careful regulation of aircraft safety cannot stand; thus subsection (c)(1)(b) is preempted. IV. CONCLUSION For the foregoing reasons, this Court holds that Ordinance sections (b), (c)(1)(a), (c)(1)(b), and (c)(1)(e) are preempted and judgment will enter so declaring. As it is unchallenged, the remainder of Newton’s Ordinance stands. Of course, nothing prevents Newton from re-drafting the Ordinance to avoid conflict preemption. SO ORDERED. /s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 16 of 16 |
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