Category Archives: Drone Regulations

Singer v. Newton: Are State and Local Governments Now Prohibited From Regulating Drones?

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The short answer is, no.  The Singer decision is narrow, non-binding, leaves other parts of the ordinance in place, and expressly leaves the door open for Newton (and other state and local governments) to enact more narrowly-tailored regulations on drones.

In a way, the four challenged provisions of the Newton ordinance were an easy call, because each conflicted with or effectively usurped existing FAA regulations.  This allowed the court to invoke the doctrine of “conflict preemption,” as opposed to what is called “field preemption.”

“Field preemption” is invoked when the federal government occupies the entire field of an area of regulation that is within its Constitutional authority, even though it might not have enacted a specific regulation pertaining to the challenged state or local law.  Significantly, the court rejected field preemption because the FAA has expressly left the door open to some state regulation of drone use (such as the privacy protections of Florida’s FUSA statute, which I discussed, here).

“Conflict preemption” means exactly what it implies:  That when the federal government regulates an area within its Constitutional authority, those regulations are the supreme law of the land and the states may not enact laws that would contradict or undermine the federal regulation.

Briefly:

Section (b) of the Newton ordinance provided that “[o]wners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”  Because the FAA has held itself out as the exclusive authority for registration of aircraft, striking down this provision of the ordinance was that rare bird in litigation: a no-brainer. This is probably the broadest part of the decision, in that the court made it clear that the city may not require any kind of drone registration, period.

The ordinance at subsection (c)(1)(a) prohibited drone flights below an altitude of 400 feet over any private property without the express permission of the property owner.  Also, subsection (c)(1)(e) prohibited flying drones over public property, at any altitude, without prior permission from the city.  The court found that these provisions had the effect of banning all drone flights in the city, because FAA regulations restrict sUAS flights to below 400 feet AGL.  While the FAA left the door open to some local regulation of drones, that should not be interpreted as license to effectively ban drone operations. This leaves the door open to the possibility of a more narrowly-drawn ordinance.

Finally, subsection (c)(1)(b) of the ordinance prohibited drones from being operated “at a distance beyond the visual line of sight of the Operator.”  This was plainly duplicative of Part 107 and, as such, tended to usurp an express regulation of the FAA (which could, at some time in the future, change its mind about BVLoS operation).

The decision ends with a note that Newton is welcome to craft narrower regulations.  Precisely what those regulations will look like is hard to say.

Whatever the case may be, one should not take this as an invalidation of drone regulations in one’s particular state or city.  The court only addressed these specific provisions of the Newton ordinance, and the decision has no binding effect on other courts, let alone other states and municipalities.

But let us not detract from the significance of this win, either.  Major kudos are in order for the petitioner, Dr. Michael Singer, and his attorneys.

The FAA’s sUAS NPRM: It’s Time to Speak Up

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Like many, we were pleasantly surprised by liberality of the FAA’s NPRM for sUAS.  Those who have been watching the FAA’s conduct, especially with regard to its often-tedious requirements for Section 333 exemptions, expected much more restrictive proposed rules that would have imposed impossibly high barriers to entry to all but the most well-financed operators.

Perhaps this is simply a matter of the FAA recognizing reality.  Pages 9-10 of the DOT’s released-then-un-released Regulatory Evaluation reveal a telling point:

While commercial small UAS operations are being operated without FAA regulatory approval, the FAA has no method to quantify their historical usage. However, as civil applications of UAS develop, a demand for legal and safe access to the NAS for commercial and other non-recreational purposes has emerged. This proposed rule announces our plan to work with the emerging UAS industry to build a safe environment; eventually leading to the inclusion of small UAS into the NAS for commercial and other non-recreational purposes as well as satisfying the congressional direction from P.L. 112-95.

In other words, the agency seems to be saying, we have no idea how many non-compliant operators are out there, but it’s probably a significant number.  Therefore, we think it better to have liberal rules that will bring more operators into the fold of compliance.

That seems to us like a smart move.  The FAA has no police force patrolling the cities and countryside, and its program to enlist local law enforcement appears to have fallen flat.  In any event, no federal agency can Constitutionally direct the activities of local law enforcement.

Indeed, while it is not our role to psychoanalyze a government agency, we see this NPRM as a case of bargaining – threatened with a complete loss of control over all but the most well-financed commercial sUAS operators, the FAA is promising to not be too onerous in exchange for a little more control than is actually necessary to achieve the purpose of safe integration.

It is nevertheless important for industry stakeholders not to be disarmed by this approach, but to carefully evaluate the NPRM on its merits and to engage the rulemaking process by filing comments.  For example, do you believe that the proposed rules strike the right balance for pilot certification?  Do you believe that the visual-line-of-sight requirement is too onerous?  Do you believe that there could be more efficient ways of protecting the airspace around airports that minimize barriers to entry for commercial sUAS operators?

We will air out our own thoughts on these questions in subsequent posts.  But in the meantime, make no mistake: Interested parties such as the Airline Pilots Association can be expected to submit comments urging much more restrictive requirements for pilot certification, air-worthiness certification, and operational parameters.  Your comments will be important to making sure that the final rules are as reasonable and entrepreneur-friendly as possible.

(As of this writing, the NPRM has not yet been published in the Federal Register, so the 60-day deadline for comments has not yet been triggered. But one should assume that the deadline will be sometime this Spring.)

Should you wish to engage counsel to assist you with the comment process, feel free to contact the law firm of Diaz, Reus & Targ, LLP at 305-375-9220 and ask for Brant Hadaway.  Or write me an email at bhadaway@diazreus.com.  If I can’t assist you, I’ll find you someone who can.

UPDATE:

The Wall Street Journal published a report yesterday which hints at the level of non-compliance with the FAA’s prohibition on commercial drone operations:

“Officially [the FAA’s] stance is, You can’t do that. But they say you can’t drive 70 miles per hour on a 50-mile-per-hour freeway,” said Peter Sosnowski, preconstruction director for Webcor Builders, a commercial construction company and San Francisco unit of Japanese firm Obayashi Corp. Webcor has used drones to map two big U.S. construction sites, he said. “Until someone gets caught and penalized, drone businesses will continue to do business as is.”

South Africa Moves Forward on Drone Regulations

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Drone operators in South Africa have been cooling their heels, waiting for regulations allowing commercial drone operations from the South Africa Civil Aviation Authority (SACAA).  Based on this report, it looks like their wait will soon be over.  In what would constitute a lightning-fast rules process in the U.S., South Africa went from proposed rules, issued in December, to the close of comments just over two weeks ago.  The regulations are supposed to be finalized by the end of January, and will hopefully become law by April-May of this year.

The draft regulations would require aircraft to be licensed and registered and pilots/operators to undergo training to qualify them to fly the aircraft. Someone would only be able to fly a remotely piloted aircraft (RPA) if they have an RPA Pilot License, an RPA Operator Certificate, a certificate of RPA registration and an RPA Letter of Approval.
Importantly, RPAs will be classified according to their mass, kinetic energy and type of operation (line of sight, beyond line of sight etc.), with ten classes ranging from Class 1A to Class 5 and with masses ranging from less than 1.5 kg to greater than 150 kg.

The draft regulations apply to class 1 and 2 RPAs (up to 120 kg). Private operations of RPAs will be conducted only in restricted visual line of sight with a Class 1A or 1B RPA (up to 7 kg). However, operating a UAV as a hobbyist falls under different regulations.

The proposed categories for pilots is interesting:

For anyone in South Africa with a UAV, there are three options to fly legally: one can apply for a license if pursuing commercial work (once the regulations are finalised); one can become a member of the South African Model Aircraft Association (SAMAA) if flying as a hobbyist; or one can fly as a ‘park flyer’.

Great work for SAMAA.  We believe that the following applies to those seeking to do commercial work:

Someone would only be able to pilot an RPA once in possession of a Remote Pilot License (RPL) in one of three categories: RPL (A) – Aeroplane Remote Pilot License; RPL (H) – Helicopter Remote Pilot License; and RPL (MR) – Multirotor Remote Pilot License. Several ratings are available including visual line of sight operations (VLOS), extended visual line of sight operations (E-VLOS) and beyond visual line of sight operations (B-VLOS).

The License would test things like air law, meteorology, navigation, aerodynamics, propulsion, flight control, batteries etc. Flight training can be a combination of simulator and real aircraft training and would cover things like aircraft inspection, systems checks, flight control/manoeuvres, takeoff, landing etc.

In other words, the SACAA isn’t taking a one-size-fits-all approach to licensing and, unlike the FAA, apparently won’t require pilots to be licensed to fly manned aircraft.

The flight rules get a little more complicated:

For commercial, corporate and non-profit flight operations, an operator would be required to have an RPA Operator Certificate (ROC – valid for 12 months) or air services license, which can only be granted if the operator has a registered aircraft, an operations manual and an RLA. ROC holders would have background and criminal record checks conducted and would have to have third party insurance.

For private use, RPAs would only be flown in restricted visual line of sight (within 500 metres of the pilot) and over property the pilot owns or has permission to operate over.

With regard to operating an RPA, under the draft regulations an aircraft would only be operated in controlled airspace by a holder of an ROC or if the RPA is flown in visual meteorological conditions in an air traffic zone (ATZ) and controlled traffic region (CTR) below 400 feet. RPAs intended for operations within an ATZ or CTR would have to be fitted with a mode C or S transponder, altimeter, strobe light/s and navigation lights.

Did we say that the operations rules get a little complicated?  Scrolling through the proposed regulations, one finds nuggets like this:

First aid kits

101.05.24 (1) No owner or operator of an RPA shall operate the aircraft unless a first aid kit consisting of the medical supplies … for manned aircraft is available within the remote pilot station and within 300 m of the takeoff and landing points. . . .

(2) The owner or operator shall carry out periodical inspections of the first aid kit to ensure that, as far as practicable, the contents thereof are in a condition necessary for their intended use.

(3) The contents of the first aid kit shall be replenished at regular intervals, in accordance with instructions contained on their labels, or as circumstances require.

(4) The first aid kit shall be readily accessible to all crew members involved in the operation.

Hand-held fire extinguishers

101.05.25 No owner or operator of an RPA shall operate the RPA unless –

(a) a hand-held fire extinguisher is available in the remote pilot station and within 300 m of the takeoff and landing points;

(b) a hand-held fire extinguisher suitable for use with electronic equipment and any power generating equipment in use is available in the remote pilot station; and

(c) a hand-held fire extinguisher suitable for use on the RPA is available within 300 m of the takeoff and landing points.

Good Lord.

As one might imagine, South African officials are concerned about a lack of personnel to implement these regulations, once they become law.  Such a dilemma is the natural result of a regulatory regime that, while sensible on some levels, is still going to be grossly inefficient and difficult to administer.

We give this proposed set of drone regulations a C+.

The complete draft regulations can be found here.