The drone dilemma

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.

Causes for concern

The origin of Newton’s ordinance lies in a 2015 conversation between a Newton resident and Councilor Susan Albright about a time when a drone flew over a pool the resident was lying in. Albright, the ordinance’s original docketer, recalls the resident’s dismay at the thought of citizens losing their privacy after the many drones purchased during the holiday season took to the skies. “I thought he had a rational reason for wanting to regulate how drones could invade in people’s backyards and invade people’s privacy,” she says.

“The greatest concerns here were again, the issues of privacy and trespass,” Newton Assistant City Solicitor Maura O’Keefe says. “That’s how the ordinance was first docketed.”

Privacy and trespass are only a few of the many regulatory issues that surround the local governance of private and commercial drone activities. Even drones without video cameras that fly over private property could constitute a privacy or property law concern, McNeal says.

While video cameras are now commonplace, the NLC report notes, “the scope of a drone’s perspective is often much larger with granular detail easily accessible.” The advent of superior filming technology opens up issues of privacy enforcement, since a pilot could be flying adjacent to a homeowner’s property but still looking inside their home, Swindell says.

“Enforcement is such a challenge with all of this that… privacy is almost a quaint question,” he notes. “But it’s also one that many people are very concerned about.”

Drones’ noise can also affect privacy, especially in densely populated areas, because drones would likely fly there. Swindell suggests that the noise created by lots of drones could also lower existing property values.

It’s a predicament that can play into larger aesthetic and character of the community issues, given potential noise complaints and the crowding of multiple drones in a small area of airspace.

“Local governments want to zone certain areas as residential,” McNeal says. “They want to zone others as commercial, and they want to have the ability to say what happens in those areas.”

Operational restrictions — or no-fly zones — are an issue that McNeal and Swindell agree are among the most pressing issues that local governments face in drone regulation.

McNeal offers the example of drone flight near Apple’s doughnut-shaped campus in Cupertino, Calif. Drones could fly beside the building and observe activity inside, as well as fly inside the inner area within the campus.

“[Apple employees] don’t want to wait until the drone is adjacent to the window or in the courtyard of the Apple campus… they want to be able to exclude the drone from the inner courtyard of the Apple campus in the same way that they can exclude you or I from walking into the inner courtyard without checking in at the front desk,” he says.

Such an exclusion would involve regulating an area of airspace. As local airspace regulation is currently a legally precarious action, legal experts recommend that city officials focus more on the ground if they deem it necessary to issue drone regulations in their communities.

Ground control

Newton’s ordinance contains operational prohibitions that restrict pilotless aircraft from conducting many activities, including surveillance, assault, interfering with aircraft, or operating beyond the operator’s visual line of sight.

The FAA recommends in a 2015 fact sheet that state and local governments consult with the agency when considering operational restrictions or bans on drone use.

O’Keefe indicates that, when drafting Newton’s ordinance, the city only consulted the FAA on the amount of access it would have to the FAA’s registration database.

“There were guidelines that it was recommended to do so,” she says. “However again, the ordinance was grounded in traditional municipal police powers.”

In a June 2016 letter to the Cobb County (Ga.) Attorney’s Office about a proposed county drone ordinance however, FAA Southern Regional Counsel Attorney Brandon C. Goldberg writes, “Generally speaking, any law that regulates aircraft flight paths or establishes operational bans of aircraft are operational restrictions with which we could not concur.”

Legal experts recommend that city governments issue regulations as tailored to land use, zoning or traditional police powers as possible. The FAA clarifies in a fact sheet that rules traditionally delegated to local governments generally aren’t federally regulated.

“The only thing cities can really do is again, tie all of their authority to land use,” Brewer says. “That is, monitoring the taking off and landing portions of it.”

Brewer worked with legal, public safety and government representatives from 12 cities, Orange County and the county’s fire authority and sheriff’s department to devise the ACC-OC’s 2017 model drone ordinance for the county’s 34 cities. McNeal’s company, AirMap was also involved in its development, and an FAA attorney was consulted multiple times on the ordinance, ultimately giving it his approval.

Each of the model ordinance’s local regulations and time, place and manner restrictions, as well as its reckless endangerment clause, begin with the same eight words: “No person shall takeoff or land a UAS…” The ordinance does not include the term operate to reference an ordinance-regulated activity of a drone.

“All of our operational restrictions have always been tied to takeoff and landing,” Brewer explains. “But never just, ‘you cannot fly here or operate in this space.’ When you use a word like ‘operate,’ you’re just, you’re done for.”

The assumption is that by occurring on land, the takeoff and landing of a drone fall within land use or zoning authority, as well as potentially police power. A rule that looks like aeronautical activity regulation is less likely to be defensible than one that falls within local land use, zoning and police power, McNeal says.

The NLC ordinance uses similar phrasing to the ACC-OC ordinance, but it also uses the terms ‘operate’ and ‘operation’ in reference to reckless operation.

McNeal argues, however, that the line between preemption and permissibility isn’t clearly defined, citing the example of a regulation prohibiting drones from flying within “50 feet of a school playground while school is in session.”

“It’s still in the category of regulating airspace,” he admits. “But you’re on very strong ground to say, ‘there are a bunch of police power reasons why we want to do this’ — related to safety, related to nuisance, related to protecting the children.”

A counter argument to such a rule could be regulating harmful conduct instead of drone flight, he acknowledges. Issuing a rule such as his example, he argues, could prevent such harmful conduct from occurring.

Nevertheless, legal experts agree that governing conduct rather than issuing operation restrictions presents several advantages to cities.

Shifting to neutral

Not all Newton councilors voted in favor of the city’s ordinance. Jake Auchincloss, one of the dissenting councilors, took issue with the rules’ wordage.

“[Local regulations] should be defined around the outcomes and ensure quality of life,” he says. “They should not be scoped narrowly to each piece of technology… as much as possible, we should be technology agnostic when we write laws because laws are meant to be, as much as possible, persistent and broad and stable.”

Experts agree that technology agnostic, or technology-neutral laws are generally more effective than technology-specific laws. Technology-neutral laws, which the NLC report recommends for private use-related regulations, “prohibit the act rather than the method, imposing similar penalties on voyeurism or harassment whether accomplished with binoculars or drones.”

Technology-neutral laws can often be found within a city’s existing code of law. “You don’t really need more laws, you just need people knowing how to use the tools already in their tool box,” Rupprecht advises.

The operation of drones from the ground lends a human element to drone regulations, he says, which launches the question of whether to regulate drone operation or to regulate criminal activity. “I would suggest to anybody that wants to do this and try to survive some lawsuits… regulate criminal activity,” he adds.

Rupprecht explains this point with an example concerning privacy. “The camera duct taped to the broom over the fence can do the same job as a drone,” he says. “Just regulate the conduct related to the person on the ground, or criminal activity; not the technology.”

Technology-neutral laws can fall under privacy and trespass — another area the FAA notes isn’t generally federally regulated. Using technology-neutral regulations to regulate criminal activity also allows such regulations to adapt to fit future technologies that the federal government may try to regulate.

“I think having [technologically neutral] regulations already in place is really useful,” Swindell says, “because it avoids exactly the situation that we’re in right now with this jurisdictional issue between which level of government is responsible for it.”

A look forward

While O’Keefe voices confidence that Newton’s ordinance can co-exist with the FAA’s rules, speculation on the case and its issues abound as it continues to be litigated.

“There are a bunch of other things [Newton] did that are reasonable,” McNeal says, highlighting Newton ordinance items prohibiting harassment with a drone and surveillance via a drone. “I might disagree on the policy judgment there, but it’s not clear to me that all of that would be considered unlawful.”

Rupprecht offers another perspective. “I think that Singer will win. I think that the court’s going to rule with that. Now, how narrowly will [the judge] rule and on what grounds, that’s going to be an interesting point.”

“The hard part is the higher you get in airspace restrictions, the more likely it is that airspace restriction will be challenged,” McNeal adds.

However, new congressional legislation called the Drone Federalism Act of 2017 could designate a lower portion of airspace for cities to directly govern.

Introduced in the U.S. Senate on May 25 and sponsored by Sen. Dianne Feinstein (D-Calif.), the bill (S. 1272) in part would allow state, local or tribal governments to restrict the time, place and manner of civil drones operating below 200 feet above ground level, or within 200 feet of a structure.

The bill would also force the FAA to define its scope of preemption such that the scope is limited to ensuring safety and efficiency in national airspace while preserving state, local and tribal government interests.

“This bill will invite the democratic participation of government at every level, avoid the need for years of litigation about the scope of preemption, and enable effective local enforcement,” Feinstein said when introducing the bill.

While the bill aims to preserve local governments’ interests, the FAA warns against the fractionalization of airspace control that could result if numerous municipalities issue different restrictions on drones. Such a “patchwork quilt” of regulations could complicate the FAA’s control of airspace safety, but it could also make lawful drone operation difficult for pilots who might be operating in areas with overlapping drone regulations.

The Drone Federalism Act of 2017 is, however, a bipartisan bill — Sens. Tom Cotton (R-Ark.), Richard Blumenthal (D-Conn.) and Mike Lee (R-Utah) have co-sponsored it. Another bipartisan bill proposed in the U.S. House of Representatives — the Drone Innovation Act of 2017 — proposes the establishment of a civil drone “local operation policy framework,” in consultation with state, local and tribal officials, among other items.

Despite the FAA’s existing rules, drones’ existing policy framework remains undefined for local governments. “The reason we’re still talking about this is because there are so many unanswered questions with regard to this new technology,” Swindell says with a chuckle.

Cities can use their existing legal tools while courts and legislation will continue to further define the ambiguous area of drone law, Rupprecht says. The role of local and state governments in such legislation and how it will affect them, however, remains up in the air.

“In this political climate, to have bipartisan legislation in both houses of Congress and have an idea that has bipartisan support from the Obama Administration to the Trump Administration, just suggests to me the inevitability of state and local governments playing a bigger role in this,” McNeal predicts. “I think it’s an exciting time for cities and counties.”

Note: On Sept. 21, the U.S. District Court for the District of Massachusetts struck down part of Newton’s drone ordinance. Read more here.

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