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City of Newton, Massachusetts can’t require drone operators to register their machines with the city



 
 
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Old September 27th 17, 05:54 PM posted to rec.aviation.piloting
Larry Dighera
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Default 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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