Newton’s Law Struck Down
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.