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.

Hogan Lovells Launches UAS Group

Global law firm Hogan Lovells has announced the formation of its UAS group.

“Companies around the world are considering, with great interest, the numerous possibilities that unmanned aircraft systems create,” said Hogan Lovells UAS Group chair E. Tazewell “Ted” Ellett. “This sophisticated technology opens up many business opportunities for our clients. Our Aviation practice has been assisting UAS clients for years. Now, by creating this dedicated UAS Group comprised of firm lawyers who are specialists in the many disciplines and industries of interest to our UAS clients, we are able to provide comprehensive UAS-related legal services on a global scale.”

A link to their UAS practice page can be found here.

Real estate video company takes a defiant stance

Given all the meekness we’ve seen in the face of the FAA’s bullying, we find the attitude of this real estate video company representative to be rather refreshing:

“The use of drones in real estate is neither legal, nor illegal. It just has not been regulated yet,” says Brian Doe, director of Business Development at Home Jab; a real estate video production company offering a network of trained filmmakers who create aerial video for real estate marketing.

… “It’s kind of like saying ‘you can’t speed,’ but the road has no speed limit. So how do you determine what speeding is? There is no way to enforce any rule, there is nothing out there about UAV’s, especially fewer than 55 pounds,” says Doe.

We couldn’t have said it better.

Drones on the farm: What are the laws?

As evidence for the proposition that no news outlet is so obscure as to escape our watchful eye, we bring you this story from a publication called Dairy Herd Management. Unfortunately, farmers are caught in the same regulatory void* as professional photographers, realtors, and pretty much everyone else. Peggy Hall, an assistant professor and Ohio State University Extension field specialist in agricultural and resource law, says:

“While landowners, farmers and growers need to know if it is legal to use UASs on their own land to monitor crops or for other uses on their farm, at this point it’s still a gray area in the law.”

Ms. Hall cautions farmers about the risk of incurring fines from the FAA. Perhaps someone ought to put together a pro bono team of practitioners and law students to represent farmers in challenges to the FAA.

* We were tempted to write, “regulatory purgatory,” but thought better of it after having a second coffee.

Twin Cities Law Firm Launches Drone Practice

The Twin Cities law firm of Fafinski Mark & Johnson is launching a “drone” practice group. The law firm “said Tuesday that it has been closely monitoring the developing drone industry, and legal advisors and litigators from its aviation group will lead the new practice group.”

Expect to see more aviation law firms expand into the realm of drone law.

Amazon seeks FAA permission to test drone delivery

Amazon’s share price is apparently up, in part on news that it has sought FAA approval to test its drone delivery system:

Amazon is asking the government to allow testing of its new delivery mechanism — small package-carrying drones that can travel at up to 50 miles per hour. The company notes in its letter that its drones can now carry loads up to 5 pounds, which it notes covers 86% of all products sold on Amazon.

There’s a lot of confusion in the article, some of which appears to be the fault of Amazon, itself. Let’s begin with this statement:

The FAA, which controls the skies above the US, has prohibited companies from testing drones — only making an exception for hobbyists

Well, not exactly. The FAA doesn’t control all of the skies above the U.S., but only that part of the skies over which it has traditionally exercised jurisdiction. As well, the “exception” for hobbyists is not tethered to the ban on testing, and the FAA has yet to enact regulations defining “hobbyists.” The comment period on the definition has yet to close.

More to the point, the NTSB judge ruled in Huerta v. Pirker that the FAA had failed to draw any meaningful distinction between someone who operates a model aircraft for pleasure and one who operates the same or similar model aircraft for profit. As far as anyone can tell at the moment, the only effective prohibition at the moment applies to aircraft that are operated beyond line of sight – i.e., by methods other than those traditionally employed by hobbyists.

This brings us to the next point:

Amazon argues that its drone testing will actually be safer than that of hobbyists, flying under 400 feet and “in a confined area over isolated Amazon private property” away from airports, government installations, and densely populated areas.

But would they be operated within line of sight? Amazon’s letter to the FAA provides additional detail regarding its proposed testing operations:

The sUAS will (i) have a maximum weight of less than 55 pounds; (ii) be rotorpowered
via a battery source; and (iii) be U.S.‐registered and display marks in accordance with 14 C.F.R. Part 45, Subpart C.5

Our sUAS R&D testing under this exemption will be conducted (i) within the visual line of sight of the operator and/or one or more observers; (ii) at less than 400 feet AGL; and (iii) within Class G airspace.

The operations will be conducted in a confined area over isolated Amazon private property located a sufficient distance away from (i) any airport, heliport, seaplane base, spaceport or other location with aviation activities; (ii) any densely populated areas; and (iii) any military or U.S. government installations or airfields.

All operations will remain within the lateral and vertical boundaries of the operating area, taking into account all factors, including wind, gross weight and glide distances, that may affect the capability of the sUAS to remain within the airspace boundary; moreover, the integrity of the operating area will be reinforced by geo‐fencing, including the ceiling height of no more than 400 feet AGL.

Given these parameters, it is tempting to suggest that Amazon could rely on the Pirker decision and not seek permission from the FAA. But of course, the last thing Amazon wants is to give the FAA an excuse to shut it down. Amazon is trying to play nice, here. The question is whether the FAA will do the right thing.

Earlier in the letter, Amazon indicates that it has thus far been forced to conduct testing either indoors or in foreign countries that already have regulations in place. The fact that Amazon has been forced to conduct its testing abroad is a shame. The FAA should promptly grant Amazon’s request.

FAA Investigating Legality of Fireworks Drone Flight

Pretty much everyone on the planet has by now seen the YouTube video of a fireworks display that was shot from a drone. A report is now circulating that the FAA is investigating the legality of that flight:

According to Forbes, the FAA is now actively looking into whether drones that fly into fireworks displays is a “violation of federal regulations or airspace restrictions.”

Has anybody ever heard of such a regulation?

NYC Drone Operators Charged

After an alleged near-miss with a NYPD helicopter over the George Washington Bridge, two drone operators have been arrested and will face charges for reckless endangerment. The NY Post has more details, including an allegation that the drones were being operated at an altitude of 2,000 feet.

The author of the Forbes article (at the first link) argues that no additional laws are necessary in a case like this:

Remy Castro, 23 and Wilkins Mendoza, 34 were charged in Manhattan Criminal Court with felony reckless endangerment. That law states:

A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

The author discusses whether the charge might be reduced to misdemeanor endangerment, given the high burden of proof for a charge of felony endangerment. His reasoning seems correct to us.

FAA Faces Significant Barriers to Safely Integrating UAS Vehicles Into the National Airspace System

To the surprise of no one who’s been paying attention, the FAA finds itself in a pickle.

A scathing new Inspector General report suggests that the office of the FAA tasked with integrating drones into the national air space is in disarray and suggests that the agency has so many hurdles to clear before drones can be safely integrated nationwide that it believes the day drones become commonplace may never come.

Here is the Inspector General’s summary:

Significant technological, regulatory, and management barriers exist to safely integrate UAS into the NAS. First, following many years of working with industry, FAA has not reached consensus on standards for technology that would enable UAS to detect and avoid other aircraft and ensure reliable data links between ground stations and the unmanned aircraft they control. Second, FAA has not established a regulatory framework for UAS integration, such as aircraft certification requirements, standard air traffic procedures for safely managing UAS with manned aircraft, or an adequate controller training program for managing UAS. Third, FAA is not effectively collecting and analyzing UAS safety data to identify risks. This is because FAA has not developed procedures for ensuring that all UAS safety incidents are reported and tracked or a process for sharing UAS safety data with the U.S. Department of Defense (DoD), the largest user of UAS. Finally, FAA is not effectively managing its oversight of UAS operations. Although FAA established a UAS Integration Office, it has not clarified lines of reporting or established clear guidance for UAS regional inspectors on authorizing and overseeing UAS operations. Until FAA addresses these barriers, UAS integration will continue to move at a slow pace, and safety risks will remain.

This suggests a shocking level of disarray within the organization. The easiest part of this process, and one that should have begun years ago, would be to establish a system for collecting safety data. But the FAA hasn’t even established a regime for sharing safety data with the DoD, let alone collecting data from the private sector. Given recent “enforcement” actions, one imagines that the FAA has assigned a roomful of interns to collect safety data by monitoring news stories on the internet.

It’s like asking Johnny to hand in his essay and finding that Johnny hasn’t even begun researching his topic, let alone started writing. Perhaps Johnny can be forgiven. But a major US regulatory agency with oversight of a critical public safety function shouldn’t be cut any slack. And this is not just endangering public safety; it’s holding up billions of dollars in business investment that promises to create many high-paying jobs. It’s not like we have a surplus of economic growth flying around, these days.

POTUS needs to start firing people. But I’m not holding my breath.