City of Newton Drone Ordinance Preempted, Chicago Likely Loses; What Remains Unanswered?
Antonelli Law has been anticipating the next seminal case in US drone law, Singer v City of Newton case. But it is important to analyze the City of Newton case for what it is, and for what it is not. In our view the judge’s opinion can be read to point the way for what federal legislation is necessary and to forecast what problems may soon be coming if new federal legislation does not occur.
In this article, I discuss the holding of City of Newton, its applicability to the Chicago Drone Ordinance, and point to future problems hinted at by the court’s opinion. I make the argument based on the court’s opinion and my observations of the UAS industry that federal legislation is needed to 1) make FAA’s jurisdiction over drone airspace “express” for preemption purposes, and 2) make clear what the limits are for local and state governments restricting where drones can take off and land through their police powers – ” land use, zoning, privacy, trespass, and law enforcement operations”. Without the above, I believe the American drone industry will flounder for all but the largest corporations.
Food for thought: What does it say that each of the two recent important drone law cases, Taylor v Huerta, and now Singer v City of Newton were filed by pro se plaintiffs, not individuals or corporations represented by a law firm? (Note: We’d like to change that (see below).)
City of Newton in a Nutshell
In wonderful news, a Massachusetts federal court has found that three drone operational restrictions in the City of Newton, Massachusetts municipal ordinance are preempted by federal law:
- The ban on the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property (Ord. Sec. 20-64(c)(1)(a))
- The ban on flying a drone beyond the visual line of sight of the operator (Ord. Sec. 20-64(c)(1)(b))
- The ban on flying a drone over Newton city property without prior permission (Ord. Sec. 20-64 (c)(1)(e))
In addition, the Court found the City of Newton’s drone registration requirement – which sought to register all drones without limit as to what altitude they operate – to be in clear derogation of the FAA’s intended authority – and is accordingly preempted.
This was a great win, and thanks go to the plaintiff in this case, Dr. Michael Singer, as well as the amici who filed briefs in support of Dr. Singer including the Consumer Technology Association and the Association for Unmanned Vehicle Systems International (AUVSI).
How Helpful Is the Singer v City of Newton Case?
Let’s Look at What City of Newton Provides: Helpful, But Not the Law of the Land
Since Singer v City of Newton was at the trial level, it will be useful in similar cases around the country but is not binding precedent. In other words, since this is not an appellate or US supreme court case, it is not yet “the law of the land”.
Different federal courts often take different positions on similar facts than other federal courts. The same holds true for federal courts of appeal. When this happens (called a split in the circuits) this is an opportunity the next case to be accepted for arguments and decision by the US Supreme Court, something called writ of certiorari.
A federal court in another state, for example, if faced with the identical lawsuit filed by Dr. Singer against the City of Newton might have viewed the case differently, even if for just procedural reasons.
How the Case Can be Used: One Excellent Target – The Chicago Drone Ordinance
The City of Newton case may not be binding in other federal district courts, but it will be helpful in other federal district courts challenging similiar state or local municipal ordinances. In my opinion, for example, the Chicago Drone Ordinance is likely to also be found preempted by federal law. Let’s look at just how similar the Chicago Drone Ordinance is to that of the City of Newton.
The Chicago Drone Ordinance contains the following drone operating restrictions, among others:
10-36-400 (b): … “no person shall operate any small unmanned aircraft in city airspace:
- Directly over any person who is not involved in the operation of the small unmanned aircraft, without such person’s consent (Ord. Sec. (b)(2))
- Over property that the operator does not own, without the property owner’s consent, and subject to any restrictions that the property owner may place on such operation (Ord. Sec. (b)(3))
- At an altitude higher than 400 feet above ground level (Ord. Sec. (b)(4))
- Outside the visual line of sight of the operator. The operator shall use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to maintain at all times an unobstructed view of the small unmanned aircraft, without the use of vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, goggles designed to provide a “first person view” from the model or similar devices (Ord. Sec. (b)(5))
These Chicago operational restrictions are nearly identical to the three operational restrictions found in the City of Newton drone ordinance that the Court found were preempted by federal law. It would not take much work to show a federal court the similiarities.
Chicago Drone Ordinance
What The Singer v City of Newton Case Does Not Help With
The judge indicated the three operational restrictions of the City of Newton were way off. City of Newton seems to provide persuasive federal judicial authority for the premise that state and local governments cannot completely ban drones either from flying over private and public property, or from taking off and landing on a wholesale basis.
So, if a local government does something as clearly wrong as City of Newton, the case will be helpful. For example, last week I wrote about the new Cook County, Illinois ordinance which bans all drones from taking off or landing from any land Cook County owns or leases or from any county facilities. I described this ban as being akin to a state or local government preventing motorists from accessing the on-ramp to the federal interstate highway. In my opinion, local governments that do this like Cook County are preventing UAS pilots from accessing the national airspace (NAS).
In City of Newton Judge Young said:
“Subsections (c)(1)(a) [ban on the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property ] and (c)(1)(e) [ban on flying a drone over Newton city property without prior permission] work in tandem, however, to create an essential ban on drone use within the limits of Newton. Nowhere in the city may an individual operate a drone without first having permission from the owner of the land below, be that Newton or a private landowner.”
[descriptions in brackets added for clarity]
The judge went on to write: “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”
But what are the limits? The City of Newton case fails to address the extent to which states and local governments may restrict drone (and rc model aircraft) takeoffs and landings pursuant to their police power — “including land use, zoning, privacy, trespass, and law enforcement operations”.
City of Newton in several places seems to imply that if the city had circumscribed its restrictions rather than having outright bans, the restrictions might have passed muster with the court. See the following statements from the opinion:
- “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] altitude they operate, in clear derogation of the FAA’s intended authority.”
- “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“
- 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”
We (and other courts) are left to wonder what are the contours of land use and overflight restrictions that a state or local government may impose that would pass judicial muster? In other words, what is the permissible ‘certain extent that Congress and the FAA may have contemplated co-regulation of drones’?
Is it enough to allow one drone heliport the size of a car (say 20 or 30 feet in circumference) at one city park in Chicago for takeoffs and landings of drones? (This obviously would severely restrict the number of drones that could be flown at one time). Or must there be a rule of reason of sorts, such as having at least one drone heliport in 20% of the city parks? These details should be the stuff left to an open regulatory process with opportunity for public comment. In other words, leadership from the federal government.
As to overflight restrictions, what if, for example, a city passed an ordinance that said outside of the designated drone heliport for takeoffs and landings of drones, no drone could be flown lower than 100 AGL above city land? Would this be okay? If there isn’t federal leadership these issues will be decided ad hoc by courts around the country arguing with lawyers arguing what is navigable airspace using legal precedent from manned aviation. You get what the Court described as deciding “statutory intent.” City of Newton, citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992).
We Need Legal Clarity for the Drone Industry to Thrive, Create Jobs, and Innovate
Stopping meddlesome local drone laws by Congress adding express federal preemption in new legislation will add legal clarity. So too would new federal law actually defining the extent to which states and local governments may restrict drone (and rc model aircraft) takeoffs and landings pursuant to their police power, what the FAA and the Court cite as “including land use, zoning, privacy, trespass, and law enforcement operations”. We need there to be a lot less guesswork around the country. Address the “what is navigable airspace” for drones head-on.
As respected UAS industry analyst Colin Snow has indicated, the current US commercial drone industry has deflated from its early hype and promise. One very valuable area of drone operations that isn’t yet happening is the so-called “Beyond Visual Line of Sight” operations. This is where drones can fly above and along miles of coastline, pipelines, electrical power lines, and vary large agricultural holdings far away from the visual sight of the operator. Mr. Snow believes these operations are a long way off.
In my view what is stopping these flights from being commonplace (saving millions of dollars in costs and enabling more frequent inspections of critical infrastructure) are: 1) The failure of the FAA to provide a clear pathway to obtaining permission for these type of flights, and 2) A lack of clarity as to the impact of differing state and local drone laws meddling with drone operations and public safety.
I wonder if this lack of legal clarity could be one reason why there doesn’t seem to be enough US investment in American drone companies and suppliers to provide the hardware and technological solutions to enable widespread safe BVLOS operations approved by the FAA.
I recently wrote to the US DOT Transportation Secretary Elaine Chao in hopes that she will cause a top-down review to address the both the failure of the FAA to provide a clear pathway to obtaining permission for beyond visual line of flights, as well as to ask Congress to put in place express federal preemption. Without express federal preemption, we will have individual lawsuits challenging many of the state and local drone laws in federal courts, perhaps with inconsistent outcomes. This is a slow and inefficient process of clarifying the legal status of the sky for drones. The industry cannot afford to wait that long.
In the meantime, please remember this: until the Supreme Court of the United States affirms a case like City of Newton, it remains the wild west out comes to “stupid” local drone laws.
If You Want to Challenge a Local Drone Law or Lobby For a Better One – Contact Us!
If you or your organization wishes to challenge a bad local drone law in federal court, or lobby Congress to put in place better legislation to promote the American drone industry and pilot operations rights, contact attorney Jeffrey Antonelli at 312-201-8310 or use our confidential contact form below. We can appear in any federal court in the country to file a challenge to state or local government legislation, and we are registered federal lobbyists able to educate Congress and advocate on your behalf.
Click here to contact Antonelli Law to discuss a challenge to a bad local drone law in federal court, or to discuss how we may help you make Congress aware of needed changes to federal legislation.
City of Newton is Now Part of Our Drone Letters Program
As an update to our Drone Letters program, we are now incorporating the Singer v City of Newton decision to our educational letters. The Drone Letters program allows individuals and companies to hire Antonelli Law for just $250 to write an educational letter containing legal case authorities to the local governmental entity of their choice. The aim of the letters are to elicit a spirit of cooperation with the target governmental entity, rather than just make it aware that a federal challenge against it may occur.
Please use our contact form here to hire Antonelli Law for our new “Drone Letter” program. Kindly mention you would like a “Drone Letter” for your locality.
Here is the Judgment and Findings of the Court in Singer v City of Newton:
JUDGMENT - Singer v City of Newton 17-cv-10071
FINDINGS OF FACT & LAW Singer v City of Newton
Here is the Cook County Drone Ordinance
- Legislative Details document
- Ordinance Text document