Air Supremacy: Court Finds That Federal Aviation Regulations Preempt City Drone Regulation

Author:Mr Andrew Barr and Reid Gardner
Profession:Morrison & Foerster LLP

On September 21, 2017, the District of Massachusetts ruled that Federal Aviation Regulations (FARs) preempt many of the restrictions that the City of Newton, Massachusetts, imposed on drones within its airspace. Although the decision is not binding on other jurisdictions, the ruling is a good indication of how other federal courts may see the same issue, and highlights—again—the tension between local and federal interests in regulating drones. The Singer v. City of Newton decision states that the FAA has exclusive responsibility for establishing safety requirements for all navigable airspace in the U.S., including low-level drone flying. Singer could be read as shutting the door on the possibility of cities establishing broad localized drone regulations for themselves. However, even Singer left open the possibility that cities or states could regulate some aspect of drone operations, especially if the locality worked in conjunction with its federal counterparts.

The Lawsuit. Dr. Michael S. Singer, a medical doctor and professor at Harvard, filed suit against the City of Newton challenging four provisions of a city ordinance that restricted the use of small unmanned aircraft (or drones) within city limits. Although the FAA already regulates drone flights in airspace below 400 feet above ground level or within the 400-foot radius of a structure, Newton sought to further regulate its own airspace by:

(1) requiring registration with the City for all drones;

(2) requiring the express permission of property owners to fly drones above any private property;

(3) requiring the prior permission of the City to fly drones above public land; and

(4) banning drone flight beyond the operator's visual line of sight.

Notably, each of these aspects is expressly contemplated by Part 107—the rules set forth by the FAA to govern drone operations. Accordingly, the Singer court struck down each of these provisions as impermissible encroachments into areas of FAA responsibility. The court found that the FAA is intended to be the exclusive regulatory authority for drone registration; that cities may not wholesale eliminate drone use over their airspace absent prior permission; and that the FAA has already adopted safety regulations that anticipate flying drones beyond line of sight with the help of a visual observer. Any future regulation by Newton would therefore have to be more narrowly constructed and avoid these areas of conflict with FAA regulation.  The Singer decision,...

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