States and local governments may want to think twice before passing laws that ban or place limitations or conditions on the use of unmanned aircraft flights in the wake of a federal judge's ruling last week in Massachusetts. Federal district judge William G. Young agreed with the plaintiff that an ordinance passed by the City of Newton in December 2016 intended to "prevent nuisances and other disturbances of the enjoyment of both public and private space" was preempted by federal law. Significantly, this is the first time a federal court has overturned a local unmanned aircraft ordinance on federal preemption grounds.

The Newton ordinance bans pilotless aircraft that are operated: 1) at an altitude below 400 feet over private property without the express permission of the property owner; 2) beyond the visual line of sight of the operator; 3) in a manner that interferes with any manned aircraft; 4) at any altitude over Newton city property without prior permission; or 5) to conduct surveillance or invade any place where a person has a reasonable expectation of privacy.

Dr. Michael Singer, a Federal Aviation Administration (FAA) certified drone pilot who lives in Newton and is a physician and professor at Harvard, filed suit challenging certain sections of the ordinance. Dr. Singer took issue with the registration requirement and the provisions that prohibited operation below 400 feet, flights beyond the visual line of sight of the operator or flights in areas that require prior express permission. Dr. Singer also argued that Newton's ordinance is pre-empted by federal law "because it attempts to regulate an almost exclusively federal area of law."

Relying on the Supremacy Clause of the U.S. Constitution that federal laws are supreme, the court on September 21, 2017, agreed with Dr. Singer and ruled that "Congress has given the FAA the responsibility of regulating the use of airspace for aircraft navigation and to protect individuals and property on the ground and has specifically directed the FAA to integrate drones into the national airspace." In rejecting the City of Newton's argument that the Taylor v. FAA case created a void to allow a local authority to require the registration of drones, Judge Young concluded that the FAA intended to be the exclusive register of unmanned aircraft. Similarly, the court found that the altitude and permission requirements in the ordinance were conflict preempted because Congress intended the FAA to use airspace to integrate the use of drones. The FAA has identified below 400 feet as an acceptable altitude and the ordinance frustrated such integration of drones into airspace from zero to 400 feet above the ground. Finally, the court concluded that through the line of sight requirement, the ordinance improperly sought to regulate the method of operation that necessarily implicates the safe operation of the aircraft in navigable airspace, an area that is within the exclusive regulation of the FAA. Local regulation in this area is preempted as it interferes with the FAA’s careful regulation of aircraft safety.

Notably, the unchallenged portions of the ordinance remain in effect. Those include prohibitions on unmanned operations that involve interference with manned aircraft, operating in a reckless, careless or negligent manner, conducting surveillance unless permitted by law or court order, capturing images or recordings that would violate a person's reasonable expectation of privacy, interference with emergency response actions, intent to harass, annoy, or assault a person or to create a public nuisance, and in violation with federal or state law, or any other local ordinance of the city.

While this case is only binding in the jurisdiction of the federal district court of Massachusetts, it clearly articulates a sound rationale and provides guidance to local governments contemplating regulation in this area. The holding in this case is consistent with the State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet issued by the FAA Office of Chief Counsel in December 2015for states and municipalities considering laws or regulations addressing UAS use. The document outlines the FAA's safety reasons for federal oversight of aviation and airspace and recommends consultation with the FAA prior to approval of local laws that involve flight altitude or flight path restrictions, regulations of navigable airspace or the mandating of any equipment or training. The fact sheet also provides examples of UAS laws that likely fall within the police powers and jurisdiction of state and local governments such as the need for police to obtain warrants prior to using UAS for surveillance, the right to prohibit the attachment of firearms or other weapons to a UAS and to prohibit UAS for hunting or fishing.