Newton’s Law Struck Down

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We don’t often find cause to clap for the meddling regulatory overreach of the FAA, but the agency won one this week that I, for one, am personally cheering. U.S. District Judge William G. Young said the city of Newton, Massachusetts (near Boston) can’t require drone operators to register their machines with the city, nor can it restrict them from flying below 400 feet. A suit against Newton’s law was filed in January by Michael Singer, a local physician and inventor. To be accurate, the FAA wasn’t directly involved.

In his complaint, Singer said the December 2016 law essentially banned drones from the city limits of Newton and was thus counter to federal law under a doctrine called preemption. That essentially supports the FAA’s view that it and it alone is the agency solely responsible for regulating things that fly. In its legal rejoinder to Singer’s suit, Newton argued that the federal government allows localities to co-regulate aviation. Judge Young wasn’t buying that argument: “This [Newton’s ordinance] thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.”

Right call, right language. Young’s ruling was, however, just another signpost on what will surely be a long and bumpy road toward integrating drones into the national airspace. The FAA is often reviled—and I’ve done some of the reviling—for its plodding, sclerotic performance in promulgating drone regulations. But like a drunk weaving up to the bar before last call, it’s getting there, however slowly.

I know readers of this blog are understandably fearful of the profusion of remotely piloted vehicles buzzing around. I don’t share the fear, but I don’t dismiss it either. Either way, if you’re involved in GA at any level, you should be happy about this decision, just as you should be happy with a court finding overturning restrictive noise ordinances at East Hampton Airport earlier this year. That’s because governments at the state, city and county level are necessarily concerned with the narrow complaints of their local constituencies.  The old money at Sag Harbor might just as soon convert East Hampton Airport back to pasture land but, failing that, let’s pass an ordinance to keep those noisy jets and helicopters from using it. The overbearing federal government via the FAA pushes back and often relies on the courts to make its directives stick.

The Newton decision may prove to be of more than local import, at least for a time. Other local governments are entertaining ordinances to prohibit the use of drones in their communities and those with smart city attorneys will hear the message for what it is: Tread carefully.  

The judge left open the question of whether the city could regulate more broadly on noise and privacy issues and he essentially invited the city to recast the law to avoid the preemption issue. In other words, Newton could legislate noise requirements that apply to all vehicles, not just those that fly. It could also write specific privacy statutes to protect property owners and individuals who want to be left unmolested by the prying eyes of a flying GoPro.

Compared to what threat drones may or may not represent, the privacy issue is all but incomprehensively complex. Privacy is under constant threat from data mining, from facial recognition, from surveillance cameras, from RFID chips, from smart power meters, from cloud computing and ad infinitum. Drones, take a number. If you want real privacy, lease a cave in Afghanistan. Except we’ve got a cloud of drones over there, too.

Without specifically saying so, Judge Young contributed directly to what, in his opinion, he said was the FAA’s requirement for “a delicate balance between safety and efficiency.”  Although he might not have intended it that way, the efficiency in this context is the ability of the unmanned aviation segment to expand and thrive without undue hindrance from a mess of local laws and regulations. That has to be balanced against reasonable protection of the public from being brained by one of these things. No single court decision will settle this once and for all. Think of it as a paint-by-the-numbers picture that’s slowly becoming discernible. We’ll get there eventually.

Comments (34)

Just like the town's folks across the country fought to keep Walmart out of their community and lost so will theses NIMBYs. Who pays the taxes? Once the hobbyist start becoming businesses the rules will change. Politicians and judges need lots and lots of tax dollars. Money talks NIMBYs walk.

Posted by: Klaus Marx | September 24, 2017 10:16 AM    Report this comment

I wonder if the judge owns a drone.

Posted by: Rafael Sierra | September 24, 2017 4:48 PM    Report this comment

I would think drones would be treated like other model aircraft. I don't think I can fly RC aircraft within the city limits except in certain areas.

In other news, a drone hit a US Army Blackhawk. The Blackhawk's rotor blades had to be changed out. I wonder how much that cost the taxpayers!

Posted by: BYRON WORK | September 24, 2017 8:02 PM    Report this comment

S/b WILLIAM G. YOUNG.

Posted by: Rafael Sierra | September 25, 2017 4:26 AM    Report this comment

"I don't think I can fly RC aircraft within the city limits except in certain areas."
It appears that you've missed the point entirely. The Judge ruled that - pursuant to the legal doctrine of preemption - the FAA has EXCLUSIVE jurisdiction over EVERY man-made thing that flies in U.S. airspace. Thus, LOCAL ordinances that prohibit flights of RC aircraft are themselves an unlawful usurpation of federal law.

Living as I do, in the People's Republik of Massachusetts, where municipalities sport foreign policies, immigration policies, and permit non-citizens to vote ( ! ), I am especially sensitive to Leftists' mis-belief that "autonomy" is spelled "a-n-a-r-c-h-y." We don't need any more anarchy in our skies.

Posted by: Tom Yarsley | September 25, 2017 5:47 AM    Report this comment

So, maybe the FAA should also protect manned aircraft and their licensed pilots from the preemption by some states which require all aircraft and pilots to be registered with the state. I always felt these seemed to be cases where states were stepping out of bounds of their rightful jurisdiction. A pilot is certificated by the FAA, not a state. In addition, an aircraft's C of A and registration are issued through the FAA, not a state. I believe, that Illinois, Washington, and Oregon are 3 such examples of states which seem to be appointing themselves as the FAA within their borders in regards to requiring state registration of pilots and aircraft (and typically requiring the periodic payment to the state for the privilege of said registration). Am I missing a legal nuance here?

Posted by: John Nevils | September 25, 2017 9:33 AM    Report this comment

Here in the People's Republik, the state requires an aircraft "registration" - but it's not a classic registration, in the typically-understood sense of that term. Example: Massachusetts does not issue N-numbers ("license plates") for aircraft, nor do they use their "registration form" to establish ownership of aircraft. In the legal sense, their "registration" actually is an (annual use) TAX, which courts have ruled the state is empowered to levy We get little stickers, which we're required to display "in a prominent location" on our aircraft. They're color-coded by year-of-issuance - to make it easier to ramp-check for tax scofflaws from a distance. The state wisely ( ! ) makes no efforts to tell pilots how or where to fly their "state-registered" aircraft.

Posted by: Tom Yarsley | September 25, 2017 10:18 AM    Report this comment

So, that may be the key, Tom. As long as the state does not try to tell pilots how / where to fly their aircraft, the FAA lets the state conduct their revenue enhancement activities labeled as "registration" of aircraft and/or pilots. Thanks for your input!

Posted by: John Nevils | September 25, 2017 11:36 AM    Report this comment

In NC we pay fuel and property taxes on our aircraft, that's about the full extent of the state's meddling aviation. The state does have a Dept of aviation that does a pretty good job promoting aviation.

Posted by: Richard Montague | September 25, 2017 3:50 PM    Report this comment

"In other news, a drone hit a US Army Blackhawk"

Byron, you have certainly misread that. As reported here at AvWeb:

"The Army has confirmed that one of its Blackhawk helicopters hit a drone while patrolling over New York City on Thursday."

It was the Blackhawk that hit the drone, not the other way around. Seems that the chopper pilot was not practicing "see and avoid".

Of all the regulations, political wranglings and consternation, one has to look at the big picture.

The less-than-one-percent of the pilot population can not compete with the millions of constituents that want their Amazon packages delivered in 30 minuites or less by drone.

What's the easiest way to avoid GA/drone conflict? ADS-B and VFR flight plans on established VFR routes.

Posted by: Robert Ore | September 25, 2017 7:33 PM    Report this comment

IMO, drones are ... well, like aerial syphilis. Yeah, that's it, an aerial disease, a baffling disorder in the airspace structure.

Posted by: Rafael Sierra | September 25, 2017 8:11 PM    Report this comment

"What's the easiest way to avoid GA/drone conflict? ADS-B and VFR flight plans on established VFR routes

ADS-B maybe, but "VFR flight plans on VFR routes"??!! Shirley, you jest! That would be only a minor improvement over just banning VFR flight altogether. Seriously,file a VFR flight plan and fly a VFR route from a small town airport to a friend's grass strip thirty miles away on a sunny day? How about having to assign a VFR route from every airport in the country to every every other airport in the country.

Posted by: Richard Montague | September 26, 2017 7:25 AM    Report this comment

"It was the Blackhawk that hit the drone, not the other way around. Seems that the chopper pilot was not practicing "see and avoid"."

Have you ever had a close encounter with a drone in flight? I have, and by the time I realized it was a drone (where one should not have been, seeing how I was 2000agl) very near me rather than an airplane in the distance, it had already passed me. In retrospect, I estimate the drone missed me by about 50-100 feet.

Whether the drone flew in to the helicopter, or the helicopter flew in to the drone, it's just a matter of semantics. The drone is the more maneuverable air vehicle, so by normal see-and-avoid collision avoidance rules, the drone should have maneuvered out of the way.

I also don't see how the ADS-B system will be able to accommodate all of the drones. And it will turn in to a mess for ADS-B In-equipped aircraft that are doing low-level maneuvering (for legitimate reasons - turns-around-a-point are within 500 feet agl) or taking off or landing.

Posted by: Gary Baluha | September 26, 2017 9:06 AM    Report this comment

Gary:
Segregation cum geo-fencing is the most practical first-line of defense against collisions. I'm not aware of any FAA plans for implementing intentions-sharing into the ADS-B data string.
-YARS

Posted by: Tom Yarsley | September 26, 2017 9:42 AM    Report this comment

"Whether the drone flew in to the helicopter, or the helicopter flew in to the drone, it's just a matter of semaI also don't see how the ADS-B system will be able to accommodate all of the dronesntics."

Hardly semantics. It sets precedence and shows who they hold liable for such accendents.

In this case it was the "helicopter pilots inability to see and avoid other aircraft"

"I also don't see how the ADS-B system will be able to accommodate all of the drones"

Again, GA pilots are not looking at the big picture. The ADS-B system does not have to "accommodate all of the drones". It only has to accommodate all the GA aircraft, flying VFR flight plans, on VFR routes. The comer I drone operator can "self report" via something akin to FlightAware. In that the drone does not do the reporting on board.

Posted by: Robert Ore | September 26, 2017 10:56 AM    Report this comment

"It only has to accommodate all the GA aircraft, flying VFR flight plans, on VFR routes."

Requiring VFR aircraft to file VFR flight plans and fly only VFR routes is a non-starter. That's taking us backwards and becoming restrictive like China. Not to be snobbish, but "we were here first" before the drones, so the drones should be the ones required to fit in with us, not the other way around.


"Hardly semantics. It sets precedence and shows who they hold liable for such accendents.
In this case it was the "helicopter pilots inability to see and avoid other aircraft""

Part 107 (and I presume the AMA too) stipulates that remotely piloted vehicles shall yield to manned aircraft. The drone didn't do that, so the drone operator is at fault.

And again, if you've never had a close encounter with a drone in an aircraft, you don't understand how incredibly difficult it is to (1) see them and (2) accurately determine their distance. In my case, there literally was no time for me to maneuver once I realized I was seeing a drone flying near by.


As Yars mentions, geo-fencing is the best first-line of defense. It'd be good if a properly certificated Part 107 operator can override geo-fencing, though (otherwise they could be unnecessarily locked out of flying in areas where they clearly can avoid real aircraft). Maybe the drones could be equipped with ADS-B In (traffic only) so they can automatically avoid a manned aircraft it detects, even overriding the operator's commands if it determines a collision or near-miss is imminent.

Posted by: Gary Baluha | September 26, 2017 11:15 AM    Report this comment

Bert and I have butted heads over this many times before, but I really have to hand it to him: his timing is impeccable. On the same line as his apologia to plastic flying jellyfish (they're so soft you can swim right through them) is the story of an Army Blackhawk, on legitimate business, right where it was supposed to be, getting nailed by a drone that was none of those things.

Oh sure, the chopper landed safely so we haven't had the first drone-induced fatality yet, so let's just keep on whistling past the graveyard without "undue hindrance from a mess of local laws and regulations". Even if I could get the US taxpaying public to replace the blades on my helicopter, I am no more willing to fly in a drone-infested airspace than I am swimming with jellyfish.

Essentially, the FAA has strung buoys on a polypropylene rope at 400agl. Anyone who thinks that will stop dangerous creatures with very small brains, or the toys of humans similarly endowed, is a fool.

Posted by: Chip Davis | September 26, 2017 11:18 AM    Report this comment

The report may indicate that the helicopter hit the drone, but in the court of public opinion, it really does not matter who hit whom. And, if the copter had crashed, it would not have mattered to the crew, or any hapless victims on the ground. The problem is that it is difficult or impossible for a pilot to see a drone in time to reailze what it is and take evasive action. Even relatively slow aircraft will fly the length of a football field in less than three seconds. Try having a friend place a drone in the grass of a field 100 yards away, and then try to turn and see the drone in one second or less. That gives you two seconds to decide what action to take and perform the maneuver. See and avoid will not work.

Drones operated by Amazon and similar companies are not going to be the problem. Their units will be carefully regulated and will fly by the rules. Corporate legal teams will see to that. Our problem is, and always will be, the idiots that refuse to operate by the rules. As Gary B. indicated, a drone has no business up at 2,000 feet, where the operator can barely see the thing himself. FAA rules be dammed, geofencing or altitude limitations programmed into the drones are probably the best we can hope for.

Posted by: John McNamee | September 26, 2017 11:41 AM    Report this comment

"Oh sure, the chopper landed safely so we haven't had the first drone-induced fatality yet, so let's just keep on whistling past the graveyard without "undue hindrance from a mess of local laws and regulations"

I guess you selectively missed the very next story in the column: Helicopter, Plane Collision At Clearwater. Both manned, too. Both under tight regulation.

Remind me again. What was your point?

Posted by: Paul Bertorelli | September 26, 2017 1:02 PM    Report this comment

"Part 107 (and I presume the AMA too) stipulates that remotely piloted vehicles shall yield to manned aircraft. The drone didn't do that, so the drone operator is at fault."

The remotely piloted vehicle can yield, and continue to yield, only to be ran down by the faster/bigger aircraft. We don't "know" that drone did not yield. But what we do know, it is reported that the chopper hit the drone.

"you don't understand how incredibly difficult it is to (1) see them and (2) accurately determine their distance. In my case, there literally was no time for me to maneuver once I realized I was seeing a drone flying near by"

A 777 is easier to see than a piper Cub. A Piper Cub is easier to see than a Cri-Cri. "See and be seen" has no size qualifiers. A pilot is not relieved of this duty based on the size of his/her aircraft or the potential size of other aircraft he/she may encounter.

Posted by: Robert Ore | September 26, 2017 3:38 PM    Report this comment

"A 777 is easier to see than a piper Cub. A Piper Cub is easier to see than a Cri-Cri.."

The point exactly, the smaller an object is, the harder it is to see; therefore it behooves the Cri-Cri to stay the hell out of the way of a 747.

Anyway, I'm sure the drone operator feels that his drone was pursued, outmaneuvered and run down by the big bad military helicopter while he was flying perfectly lawfully. He will no doubt come forward to sue for compensation for mental anguish, loss of companionship and damages, financial and otherwise,

Posted by: Richard Montague | September 27, 2017 7:23 AM    Report this comment

The idea of integrating drones into our existing system isn't well thought out. The objective is to have a system which best protects all of our rights to use the airspace while doing it in an acceptably safe manner. Trying to fix the existing pile of regulations to cover drones is a fool's errand.

Start Over. It's actually simpler. And, no one is happy with what we have, not really.

The airlines, whose customers are not happy, want to take over the system as if it's not primarily designed to protect their operations already. The GA pilots who are happy with what we have are dying off and not being replaced because few from outside the system want to join it. The drone dreamers, except for the scofflaws, want reasonable rules they can depend on before making investments in planes, careers, and multi billion dollar business plans.

Start Over. Apply the concepts of self responsibility and the golden rule (do unto others, not he with the guns or gold...). It will take less time.

Posted by: Eric Warren | September 27, 2017 11:40 AM    Report this comment

"And, no one is happy with what we have, not really. "

That could also be an argument to keep what we have - if no one is happy with a law/regulation/ruling/etc, it's probably a good one. What would make GA happy would make the airlines mad, and vice versa.

Limiting small drones below 400 agl seems reasonable to me. If you want to fly above that, go learn to fly a full-size (i.e. "real") airplane, or build a larger one that needs to be flown to the same standards as manned aircraft.

Posted by: Gary Baluha | September 27, 2017 2:28 PM    Report this comment

That could only be an argument to keep the priorities we have, not the rest of it. No one is happy except people who derive power and/or money off of their knowledge of the system. The very definition of a bad bureaucratic pile of stink.

Limiting drone height to 400 AGL is likely a great idea for what you are thinking a drone is and for how you are thinking they will work. It's in no way a regulation.

To make that a regulation will involve tens of thousands of pages of work to ensure it doesn't make problems with the tens of thousands of pages we already have resulting in thousands of places where that standard then gets repeated so that when the next thing comes along you have exponentially more problems again.

The result is the current mess where anyone can be busted at any time for breaking some obscure regulation which they would never know but for which ignorance is no excuse.

Start Over, Man. Do it better.

Posted by: Eric Warren | September 27, 2017 3:20 PM    Report this comment

"The point exactly, the smaller an object is, the harder it is to see; therefore it behooves the Cri-Cri to stay the hell out of the way of a 747."

No, the point exactly; is that it behooves the 747 to stay the hell out of the way just as much as behooves the Cri-Cri. The pilot of both aircraft are responsible for see and avoid. One may have the right of way over the other in certain circumstances, but both are equally responsible to avoid each other.

"He will no doubt come forward to sue for compensation for mental anguish, loss of companionship and damages, financial and otherwise,"

Now your thinking. A future drone operator may very well just do that. When reports clearly state that it was the Blackhawk that hit the drone, not the drone hitting the Blackhawk, it sets a tone.

Throw in a few million consumers that want their packages in 30minuites or less, GA will clearly take a back seat to all the potential review/jobs/infrastructure/votes.

Posted by: Robert Ore | September 27, 2017 3:32 PM    Report this comment

"The result is the current mess where anyone can be busted at any time for breaking some obscure regulation which they would never know but for which ignorance is no excuse."

The truth could not have been said any more plainly. Except, there ARE individuals who can successfully claim ignorance. I suggest Heien v. North Carolina for a little light reading on the subject and its ramifications.

Posted by: Robert Ore | September 27, 2017 3:49 PM    Report this comment

Bert snarked:
"I guess you selectively missed the very next story in the column: Helicopter, Plane Collision At Clearwater. Both manned, too. Both under tight regulation.

Remind me again. What was your point?"

I guess you didn't read to the end: "Anyone who thinks [FAA regulatory window-dressing] will stop dangerous creatures with very small brains, or the toys of humans similarly endowed, is a fool."

Are you seriously comparing a midair accident where two piloted aircraft collided, with one where an illegally operating projectile impacted a military aircraft in legal flight providing security for the U.N.? The Clearwater accident involved two pilots who had been graduated by the FAA.

According to press reports (here is the NY Post):
"The UA60 helicopter was flying 500 feet over Midland Beach alongside another Black Hawk, when the drone struck the chopper at around 8:15 p.m. Thursday, causing damage to its rotor blades."

Aviation accidents happen, especially in traffic patterns around airports. I accept that and am especially vigilant there, the same as when navigating a parking deck in my car.

The fences lining our Interstates prevent kids on bikes from darting into traffic. Those of us who fly helicopters have no 400agl fences, only tiny signs on the ground that idiots with a new toy will not read or obey.

The drone that disintegrates on impact with an airliner or military chopper can easily kill me in mine. And with precious little way to track his air-mine back to him, he'll get away with it.

Posted by: Chip Davis | September 27, 2017 5:46 PM    Report this comment

"it behooves the 747 to stay the hell out of the way just as much as behooves the Cri-Cri."

Yes, of course. But not because it will ruin your day to have to fill out paperwork.

None of us float in air. We are there by the grace of some brilliant engineering, and should that engineering fail for any reason, we are not likely to survive the fall. A rational pilot knows this to the bone and acts accordingly.

For that matter, so does every other sentient creature higher on the evolutionary ladder than an insect. Even the birds at the top of the food chain do their best to get out of our way. A drone has no such internal circuitry, and the guy safely on the ground has no such mortal incentive (Not to mention a terrible vantage point from which to judge proximity.)

Imagine how much better airspace compliance would be if the drone-driver were to suffer the same fate as the pilot of the plane he hit.

Posted by: Chip Davis | September 27, 2017 6:06 PM    Report this comment

Consider this:
The incident helicopter was operating VFR at "about 500 feet." Let's presume for a moment that:
1. That 500 feet is MSL, and the helicopter's altimeter has an error of ZERO.
2. The drone is operating at 400 feet AGL, and its GPS altitude error is ZERO.
3. The local terrain height-above-sea-level is 20 feet.
4. Even RVSM separation standards are 1,000 feet.
What rational expectations can we have in conditions like these? Do you think that a little more altitude segregation might be a good idea?

Posted by: Tom Yarsley | September 28, 2017 4:13 AM    Report this comment

Yars, the answer is simple. Change the 400 foot rule to MSL instead of AGL.

Posted by: Richard Montague | September 28, 2017 7:10 AM    Report this comment

Richard:
Unless your objective is to cloister drones at the seashore, 400 feet MSL doesn't really work when the local terrain is 401 feet or higher above sea level.
My key point is that segregating aircraft by razor-thin slices of altitude is conceptually flawed. No matter how how good the altimetry apparatus; no matter how sharp the operators.

Posted by: Tom Yarsley | September 28, 2017 7:19 AM    Report this comment

"My key point is that segregating aircraft by razor-thin slices of altitude is conceptually flawed. No matter how how good the altimetry apparatus; no matter how sharp the operators."

What do you propose, then?

Posted by: Gary Baluha | September 28, 2017 7:35 AM    Report this comment

Hi, Gary.
On my way to work, but... For the simplest (read: "incompleye solution") of separation strategies, I'd geo-fence recreational drones completely out of approach and departure paths; limit them to 400 feet AGL (details later), and limit other aircraft to flight no lower than 1,000 feet AGL unless landing or departing. Under ideal circumstancez, that would provide 500 feet of regulatory vertical separation. We could geo-fence our "practice areas," too.
Gotta run.....

Posted by: Tom Yarsley | September 28, 2017 8:12 AM    Report this comment

"The drone that disintegrates on impact with an airliner or military chopper can easily kill me in mine. And with precious little way to track his air-mine back to him, he'll get away with it," whined Chip. (Sorry, but you started it.)

I get all kinds of e-mail and comments that say what you did there and which are utterly silent on realistic proposals to address whatever risk actually exists. The fact is, we have ZERO numerical sense of the risk, just emotional, sky-is-falling "he'll kill me" diatribes that suggest but don't actually say all of these drones should be banned from the skies.

Not gonna happen. It's delusional to think so. There is a tsunami of these small drones on the way to add to another million already out there. If you think small aircraft GA has the juice to eliminate them, have at it. With impact energy studies, the FAA is trying to wrap its administrative head around the risk that really matters: what happens if a transport airplane hits one of these? Link that data to the exposure risk related to sheer numbers and then you can decide if a full-up ban is justified. I doubt if it will come to that. I have an open mind.

We killed more people in GA last week than all of the million plus drones in the world--less military--have and, for all we know, ever will. People in houses near airports worry about airplanes crashing into them and killing them. That actually happens. Kinda regularly. Far bigger demonstrated risk of you killing someone in your airplane than a drone killing you, no? That's just what the facts say.

New recreational drones are already geo-fenced from airports. Old ones vary. Limited usefulness. Lot of people build their own drones and they're not gonna geo-fence them. My view is that the FAA has it about right. I thought the registration process made sense; too bad it was unlawful. Otherwise, strong awareness efforts at point of sale and stiff penalties for people who operate outside the AMA guidelines or cause accidents and injuries.

Maybe stronger sanctions or regulation will be indicated later. Like I said, I have an open mind. But based on demonstrated risk, Draconian proactive bans or regulations just to make people feel good are just the very thing that we as GA pilots always complain about, but support when it ain't our oxe. If you want a risk-fee existence, GA maybe isn't your game. But then you already knew that.

Posted by: Paul Bertorelli | September 28, 2017 12:38 PM    Report this comment

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