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

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.


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.

Results of Transportation Oversight Committee Hearing

We live-tweeted House Transportation and Infrastructure Committee hearing on the status of UAS integration, oversight and competitiveness.  You will links to the prepared testimony of the witnesses at the link.  Our real time comments can be found on twitter at @dronelawdotcom.

Some interesting themes emerged from this hearing.  Everyone seemed to recognize that the U.S. is falling behind on R&D and investment due to the lack of a comprehensive regulatory framework.

Several of the committee members raised questions over whether the FAA should, like other developed countries, pursue a more risk-based approach to UAS regulations.  The FAA’s Peggy Gilligan claimed that her agency is doing just that, at least when evaluating section 333 exemption applications.  This was telling.  Most of her remarks smacked of happy talk and filibustering.

Rep. Todd Rokita asked, if we are taking a risk-based approach, whether any actuarial studies have been conducted.  The answer was yes, but only as to large, high-altitude UAS.  There were too many unknowns to be able to evaluate risk profiles for smaller drones.

Another interesting theme was the general frustration with the fact that the much-heralded test sites are not getting much support from the FAA.  Some spoke of opening up more test sites.  Jesse Kallman of Airware suggested that developers be permitted to operate their own test sites.  This made sense to us.

Capt. Lee Moak of the Airline Pilots Association began his testimony by putting a brand new DJI Phantom on the table.  He compared the risk of collision with small drones to the risk of bird strikes.  His testimony made it clear that the airline pilots are lobbying for a go-slow approach.  In other words, the FAA might not be aggressive enough in trying to shut this madness down.

The overall impression was that Congress understands the problem and is losing patience with the FAA.  We might see more legislative involvement if things don’t start picking up speed.

A full video of the hearing can be viewed, below:

Drone Tech News of the Day

Every day, we see more and more stories on developments in drone tech. Here are some stories that have been making the rounds, today.

Somebody went out and created a biodegradable drone:

The bulk of the prototype is made of a root-like fungal material called mycelium. It was cultivated in a custom drone shape by Ecovative Design, a company in Green Island, New York, that grows the stuff as a lightweight sustainable alternative for applications like wine packaging and surfboard cores.

The fungal body has a protective covering of sticky cellulose “leather” sheets grown by bacteria in the lab. Coating the sheets are proteins cloned from the saliva of paper wasps – usually used to waterproof their nests. Circuits were printed in silver nanoparticle ink, in an effort to make the device as biodegradable as possible.

So far, so good. But then there’s this:

The next part the team hope to make safe to degrade are the drone’s sensors, and they have already started studying how to build them using E. coli bacteria.


DJI has launched a kick-ass new drone that includes a 4k camera. We just like the way this looks.

Back in Hollywood, people are starting to understand the potential benefits from the FAA’s approval of seven 333 exemption applications:

The day rate for a helicopter can range from $20,000 to $40,000 with crew. Operating a drone with crew can cut costs down to a rate that ranges between $9,000 to $15,000, according to Carmean. Elements that affect drone day rates pends the camera, aircraft, crew and location.

“The possibility of making shots that you couldn’t do before is extremely exciting. A director and a director of photography can say I want this shot in a movie and we can get it without a helicopter,” said Poster.

“The insurance; it’s a lot cheaper to insure a 25-pound drone than it is to insure a three-ton helicopter,” Chris Schuster, CEO and lead drone pilot at Vortex Aerial told TheWrap.

The demo video at the link is pretty cool.

We can all be superheroes, now.

Today’s edition of The New Yorker has a long article on the current and short-term future state of drone technology.  The author only alludes to the legal aspects of the technology, instead offering an overview of why drones can be both frightening and exhilarating.  He likens the power of drones to making operators into superheroes.

The technology of unmanned flight has diversified so rapidly that there are now 1,500 different kinds of drones being manufactured, and they are participants in nearly every type of human endeavor, composing a whole flying-robot ecology so vast that to call every one by the same name can seem absurd. But drone, an impossible word, is also a perfect one. Each of these machines gives its human operator the same power: It allows us to project our intelligence into the air and to exert our influence over vast expanses of space….

Lost in the concern that the drone is an authoritarian instrument is the possibility that it might simultaneously be a democratizing tool, enlarging not just the capacities of the state but also the reach of the individual — the private drone operator, the boy in Cupertino — whose view is profoundly altered and whose abilities are enhanced. “The idea I’m trying to work out to simplify this whole thing — surveillance, drones, robots — has to do with superhero ethics,” says Patrick Lin, a technology ethicist at California Polytechnic State University. “It’s about what humans do when they have superpowers. What happens then?”

Read the whole thing.