On Dec. 19, 2016, Newton, Mass., enacted a new ordinance to regulate local drone activity. Less than a month later, the city was litigating it in the U.S. District Court for the District of Massachusetts.

Plaintiff Michael Singer — a Newton resident and drone pilot representing himself in the case — argues in part that federal law preempts Newton’s ordinance. Singer also claims it violates his rights under the First, Fifth and Fourteenth Amendments. 

“By attempting to regulate airspace and aircraft, the Ordinance increases the risk of aviation hazards, runs contrary to the will of Congress, and constructively denies [small drone] operators access to the very airspace that the [Federal Aviation Administration (FAA)] allocated for them to use," Singer — who declined to comment on the case — writes in court documents.

Newton’s counterargument is, in part, that pre-established FAA rules permit local government regulation, thereby not preempting its ordinance. The city also argues that the ordinance validly exercises the city’s traditional municipal police power in regulating local drone use.

The ongoing case’s mere existence underscores U.S. municipalities’ search to find their regulatory place in governing drone activity given FAA, federal government and states’ rules. Moreover, the issues that contributed to drafting Newton’s ordinance as well as the issues that arise from the lawsuit are concerns that many cities across the U.S. could face. It’s a large predicament — a drone dilemma.

“A few [local governments] are trying to carve out some space where they can legislate at least some component of drone usage that do not interfere with the FAA claim,” says David Swindell, a professor at Arizona State University’s School of Public Affairs and the director of the school’s Center for Urban Innovation.

“Of course, if you’ve read the FAA rules, you know that they’re pretty broad,” he adds.

Rules of the game

Released in June 2016 and enacted just under three months before the Newton ordinance was passed, the FAA’s new drone use rules came about during a spike in drone popularity.

A federal registry of drones that the FAA instituted in December 2015 had 670,000 drone users who registered drones within the first year. By May 2017, over 820,000 had registered, with 745,000 of them being hobbyists (non-commercial operators). Furthermore, the FAA estimates 7 million drones will have been sold in the U.S. by 2020. 

In the process, several terms for pilotless aircraft arose. Commonly called drones, more official nomenclature refers to them as unmanned aircraft systems (UASs) or unmanned aerial vehicles (UAVs). Additional terminology designates small drones as sUAS.  

The FAA’s new rules attempt to give order to the widening drone world and its jurisprudential counterpart, which Swindell calls “the wild west.” Dubbed Part 107, the rules contain guidelines that commercial and recreational drone users must abide by in operating drones. 

While recreational drone operators can operate under a less permissive set of rules called Part 101, a National League of Cities (NLC) report (Cities and Drones: What Cities Need to Know About Unmanned Aerial Vehicles) says, “the vast majority of law abiding drone operators (whether recreational or commercial) will fall into [Part 107].”

The FAA’s regulations “focus exclusively on federal aviation safety concerns,” the NLC report notes. Among the rules, which are readily available online, is the requirement that drone pilots operating under Part 107 must fly their drones no higher than 400 feet above ground level unless they are flying within 400 feet of a structure.

“I think the most difficult thing for Newton is that they chose to regulate airspace from the ground up to 400 feet above the ground,” says Greg McNeal, a professor of law and public policy at Pepperdine University and co-founder of drone software company AirMap.

A cloudy conundrum

McNeal’s comment references an item in Newton’s ordinance that mandates pilotless aircraft must not be operated “over private property at an altitude below 400 feet without the express permission of the owner of said private property.”

Plaintiff Singer argues in court documents that this rule, when applied with the FAA’s rule for Part 107, “would presumptively prohibit sUAS over most of the land area of Newton, Massachusetts.” Moreover, he argues that the FAA holds authority over at least part of Newton’s airspace below 400 feet above ground level.

So who exactly governs U.S. airspace? The simple answer is that there isn’t a definitive one.

Ian Gregor, public affairs manager for the FAA’s Pacific Division, writes that by federal law, the FAA has “sole jurisdiction over the nation’s civilian airspace.”

McNeal however, argues that the areas of airspace the FAA has sole jurisdiction over are in fact, legally unresolved.

“The FAA has in different forums claimed to not have jurisdiction over areas where land use, zoning or the police power apply,” McNeal says. “In other forums, they have asserted much more widespread jurisdiction. No case has ever acknowledged authority down to the ground.”

Swindell concurs. “It’s unclear that the FAA actually has jurisdiction down to the ground… there’s an open question with regards to who actually has that jurisdiction.” 

Unresolved questions of airspace governance are an example of what drone attorney and commercial pilot Jonathan Rupprecht calls “landmines” that, if local governments provoke them, can trigger potential lawsuits like Newton’s. 

“I do this all day, every day as an attorney, and if I don’t want to go and play in that area, that should be a giant warning to everyone else that you don’t want to go play in that area,” he says. “Don’t run in and try to deal with this, because at the end of the day, you’re going to be potentially involved in a lawsuit.” 

McNeal likens the issue to cities trying to create drone activity rules within a box of “arguable federal preemption of any law they do.”  

“Once a drone is in the sky, even if it’s 10 feet off the ground, the FAA could consider that to be navigable airspace that has been subject to federal regulation,” says Kelsey Brewer, policy manager for the Association of California Cities – Orange County (ACC-OC), a nonprofit that has authored a model drone ordinance for Orange County, Calif., cities.

Creating laws that don’t rub up against federal preemption is the central issue behind the drone dilemma, but its not the only one.