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  • Writer's pictureHCH Legal

Drawing the Line Between State and Federal Drone Regulation

Updated: Feb 14, 2019

September 25, 2017

In a September 21, 2017 decision, the US District Court for Massachusetts determined that a City of Newton ordinance was unenforceable in its attempt to restrict drone usage. The Court's decision, however, may provide a road map for Newton and other state and local authorities seeking to provide protection to citizens, particularly in the area of privacy.

The case focused on whether federal law and regulation pre-empted the locality's ability to enforce four provisions of the ordinance: (1) a prohibition on drone use under 400 feet over private property without the property-owner's permission, (2) a prohibition on drone use under 400 feet over public property without City permission, (3) a registration requirement for all drones used over Newton, and (4) a restriction on drone use beyond line-of-sight.

The Court easily found that the third element was in conflict with the US FAA's detailed regulations on registration, including a clear intent not to require registration of recreational drones. Similarly, the fourth element (prohibiting operation beyond the pilot's visual line of sight (BLOS)) was contrary to a core component of the FAA's rulemaking on drones (which provided for BLOS usage by FAA waiver).

The Court ruled against Newton on the first two elements because, when considered together, they impose a restriction on drone operations over the entirety of the City of Newton. This ran afoul of the FAA's broad, exclusive jurisdiction over airspace regulation.

The decision was notable given that the FAA has openly admitted a role for local governments in the area of privacy. However, it would appear that Newton overreached by foreclosing all operations over Newton (without permission).

What might have resulted in a different decision (and a win for Newton)?

  • Dropping the registration requirement, or limiting it to a simple notice to the City of the operator's federal registration status.

  • Dropping the restriction on beyond-line-of-sight operations, which has no clear privacy nexus, and steps on FAA jurisdiction.

  • Allowing usage of drones over public property without permission from the City.

  • Restating the prohibition-without-permission as a permission-with-prior-notice for use over private property, meaning that property owners have a right to object.

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