UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL S. SINGER, )
) CIVIL ACTION
v. ) No. 17-10071-WGY
CITY OF NEWTON, )
YOUNG, D.J. September 21, 2017
FINDINGS OF FACT, RULINGS OF LAW, & ORDER
The crux of this dispute is whether portions of a certain
ordinance (the “Ordinance”) passed by the City of Newton
(“Newton”) on December 19, 2016 are preempted. First Am. Compl.
Declaratory and Injunctive Relief, ECF No. 12. Michael S.
Singer (“Singer”) challenges portions of the Ordinance which
require that all owners of pilotless aircraft (commonly referred
to as “drones” or “UAS”) register their pilotless aircraft with
Newton, and also prohibit operation of pilotless aircraft out of
the operator’s line of sight or in certain areas without permit
or express permission. Id.; Def. City Newton’s Mem. Law Supp.
Cross Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J., Ex. 2, Newton
Ordinances § 20-64, ECF No. 40-3. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 1 of 16
In early March, Newton answered Singer’s complaint, Answer
Def. City of Newton First Am. Compl., ECF No. 17, and both
parties appeared before the Court soon after, when they agreed
to cross-file motions for summary judgment and proceed on a case
Electronic Clerk’s Notes, ECF No. 21. Both
parties subsequently filed motions for summary judgment, Pl.’s
Corrected Mot. Summ. J., ECF No. 34; Def. City of Newton’s Cross
Mot. Summ. J., ECF No. 39, and fully briefed the issues, Pl.’s
Corrected Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), ECF No. 35;
Pl.’s Resp. Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”), ECF No.
50; Pl.’s Resp. City’s Statement Undisputed Facts (“Pl.’s Resp.
Facts”), ECF No. 51; Def. City Newton’s Mem. Law Supp. Cross
Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J. (“Def.’s Mem.”), ECF
No. 40; Def. City of Newton’s Statement Undisputed Facts Supp.
Cross Mot. Summ. J. and Resps. Pl.’s Statement Undisputed
Material Facts Supp. Mot. Summ. J. (“Def.’s Facts”), ECF No. 41;
The case stated procedure allows the Court, with the
parties’ agreement, to render a judgment based on the largely
undisputed record in cases where there are minimal factual
disputes. TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6
(1st Cir. 2007). In its review of the record, “[t]he [C]ourt is
. . . entitled to ‘engage in a certain amount of factfinding,
including the drawing of inferences.’” Id. (quoting United
Paperworkers Int’l Union Local 14 v. International Paper Co., 64
F.3d 28, 31 (1st Cir. 1995)).
Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 2 of 16
see also Amici Curiae Br. (“Amicus Br.”), ECF No. 57.
oral argument on June 13, 2017, this Court took the matter under
advisement. Electronic Clerk’s Notes, ECF No. 59.
II. FINDINGS OF FACT
Newton is a municipality in the Commonwealth of
Massachusetts and is organized under a charter pursuant to the
Home Rule Amendment of the Massachusetts Constitution. Pl.’s
Resp. Facts ¶ 1; Def.’s Facts ¶ 1. Singer resides in Newton.
Am. Compl. ¶ 22. He is a Federal Aviation Administration
(“FAA”)-certified small unmanned aircraft pilot and owns and
operates multiple drones in Newton. Id. ¶¶ 22, 25. Singer does
not operate or register his drones as a hobbyist. Tr. Case-
Stated Hearing (“Tr.”) 20:15-18, ECF No. 60.
In August 2015, members of Newton’s City Council proposed
discussing the possibility of regulating drones for the
principal purpose of protecting the privacy interests of
Newton’s residents. Pl.’s Resp. Facts ¶ 3; Def.’s Facts ¶ 3.
On March 23, 2016, an initial draft of the Ordinance was
presented for discussion. See Def.’s Mem., Ex. 3, Public Safety
& Transportation Committee Report dated Mar. 23, 2016 1, ECF No.
40-4. Following further inquiry and amendment, see, e.g.,
The Court gratefully acknowledges the helpful brief amicus
curiae filed by the Consumer Technology Association and the
Association for Unmanned Vehicle Systems International. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 3 of 16
Def.’s Mem., Ex. 7, Public Safety & Transportation Committee
Report dated May 5, 2016 1, ECF No. 40-8; Def.’s Mem., Ex. 9,
Public Safety & Transportation Committee Report dated Sept. 7,
2016 6-7, ECF No. 40-10, but without FAA approval, Def.’s Mem.,
Ex. 16, Def. City of Newton’s Answers Pl.’s First Set Interrogs.
(“Def.’s Answers Interrogs.”) 3, ECF No. 40-17, Newton’s City
Council approved the final Ordinance on December 19, 2016,
Def.’s Mem., Ex. 12, Public Safety & Transportation Committee
Report dated Dec. 19, 2016 1, ECF No. 40-13.
The Ordinance states in part:
Purpose: The use of pilotless aircraft is an increasingly
popular pastime as well as learning tool. It is important
to allow beneficial uses of these devices while also
protecting the privacy of residents throughout the City.
In order to prevent nuisances and other disturbances of the
enjoyment of both public and private space, regulation of
pilotless aircraft is required. The following section is
intended to promote the public safety and welfare of the
City and its residents. In furtherance of its stated
purpose, this section is intended to be read and
interpreted in harmony with all relevant rules and
regulations of the Federal Aviation Administration, and any
other federal, state and local laws and regulations.
Def.’s Mem., Ex. 2, Newton Ordinances § 20-64, ECF No. 40-3.
“Pilotless aircraft” is defined as “an unmanned, powered aerial
vehicle, weighing less than 55 pounds, that is operated without
direct human contact from within or on the aircraft.” Id. § 20-
64(a). In section (b), the Ordinance imposes certain
registration requirements upon owners of all pilotless aircraft.
Id. § 20-64(b). Section (c) sets forth operating prohibitions, Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 4 of 16
including, inter alia, a ban on the use of a pilotless aircraft
below an altitude of 400 feet over private property without the
express permission of the owner of the private property, id.
§ 20-64(c)(1)(a), “beyond the visual line of sight of the
Operator,” id. § 20-64(c)(1)(b), “in a manner that interferes
with any manned aircraft,” id. § 20-64(c)(1)(c), over Newton
city property without prior permission, id. § 20-64(c)(1)(e), or
to conduct surveillance or invade any place where a person has a
reasonable expectation of privacy, id. § 20-64(c)(1)(f)-(g).
Violations of the Ordinance are punishable by a $50 fine
following a one-time warning. Id. § 20-64(f).
III. RULINGS OF LAW
Specifically, Singer challenges four subsections of the
Ordinance: the registration requirements of section (b) and the
operation limits of subsections (c)(1)(a), (c)(1)(b), and
(c)(1)(e). Pl.’s Mem 3-4; Pl.’s Resp. i. Singer argues that
the Ordinance is preempted by federal law because it attempts to
regulate an almost exclusively federal area of law, Pl.’s Mem.
6-15, in a way that conflicts with Congress’s purpose, id. at
14-15. In turn, Newton posits that the Ordinance is not
preempted by federal law because it falls within an area of law
that the FAA expressly carved out for local governments to
regulate, Def.’s Mem. 8-10, and thus can be read in harmony with
federal aviation laws and regulations, id. at 10-11. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 5 of 16
A. Preemption Standards
The Supremacy Clause of the United States Constitution
provides that federal laws are supreme, U.S. Const. art. VI, cl.
2, thus requiring that federal laws preempt any conflicting
state or local regulations, see Maryland v. Louisiana, 451 U.S.
725, 746 (1981) (citing McCulloch v. Maryland, 4 Wheat. 316, 427
(1819)). Under our federalist system, however, a court must be
wary of invalidating laws in areas traditionally left to the
states unless the court is entirely convinced that Congress
intended to override state regulation. See, e.g., Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991) (citing Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). In contrast, if a
state government attempts to regulate an area traditionally
occupied by the federal government, a court need not seek to
avoid preemption. See United States v. Locke, 529 U.S. 89, 108
(2000). Neither of these circumstances requires that Congress
explicitly have stated its purpose; “[t]he question, at bottom,
is one of statutory intent.” Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 383 (1992).
If Congress has not expressly preempted an area of law,
then a court must determine whether field or conflict preemption
is evident. See French v. Pan Am Express, Inc., 869 F.2d 1, 2
(1st Cir. 1989). Field preemption occurs where federal
regulation is so pervasive and dominant that one can infer Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 6 of 16
Congressional intent to occupy the field. See Massachusetts
Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 179 (1st
Cir. 1999) (citing Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947); French, 869 F.2d at 2). Conflict preemption
arises when compliance with both state and federal regulations
is impossible or if state law obstructs the objectives of the
federal regulation. See Grant’s Dairy – Me., LLC v.
Commissioner of Me. Dept. of Agric., Food & Rural Res., 232 F.3d
8, 15 (1st Cir. 2000) (citing Gade v. National Solid Wastes
Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).
B. The Federal Aviation Administration
Congress has stated that “[t]he United States Government
has exclusive sovereignty of airspace of the United States.” 49
U.S.C. § 40103(a)(1). This declaration does not preclude states
or municipalities from passing any valid aviation regulations,
see Braniff Airways v. Nebraska State Bd. of Equalization &
Assessment, 347 U.S. 590, 595 (1954), but courts generally
recognize that Congress extensively controls much of the field,
see, e.g., Chicago & S. Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 105, 107 (1948); United Parcel Serv., Inc.
v. Flores-Galarza, 318 F.3d 323, 336 (1st Cir. 2003).
Accordingly, where a state’s exercise of police power infringes
upon the federal government’s regulation of aviation, state law Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 7 of 16
is preempted. See City of Burbank v. Lockheed Air Terminal
Inc., 411 U.S. 624, 638-39 (1973).
In the FAA Modernization and Reform Act of 2012, Congress
directed the FAA to “develop a comprehensive plan to safely
accelerate the integration of civil unmanned aircraft systems
into the national airspace system,” FAA Modernization and Reform
Act of 2012, Pub. L. No. 112-95 § 332, 126 Stat. 11, 73 (2012)
(codified at 49 U.S.C. § 40101 note), while limiting the FAA
from “promulgat[ing] any rule or regulation regarding a model
aircraft,” id. § 336(a). Under this directive, the FAA
promulgated 14 C.F.R. part 107, which declares that it “applies
to the registration, airman certification, and operation of
civil small unmanned aircraft systems
within the United
States.” 14 C.F.R. § 107.1(a). The rule requires, inter alia,
that anyone controlling a small unmanned aircraft system
register with the FAA, id. §§ 91.203, 107.13; and keep the
aircraft within the visual line of sight of the operator or a
designated visual observer, id. §§ 107.3, 107.31, and below an
altitude of 400 feet above ground level or within a 400 foot
radius of a structure, id. § 107.51(b).
The FAA defines “small unmanned aircraft” as “an unmanned
aircraft weighing less than 55 pounds on takeoff, including
everything that is on board or otherwise attached to the
aircraft,” and “small unmanned aircraft system” as “a small
unmanned aircraft and its associated elements.” 14 C.F.R.
§ 107.3. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 8 of 16
C. Field Preemption
Singer argues that because the federal government regulates
unmanned aircraft and local aircraft operations, there is
federal intent to occupy the field. Pl.’s Mem. 6-11; Pl.’s
Resp. 3; see also Amicus Br. 7-29. Newton does not challenge
that aviation is a traditionally federal field, but counters
that federal regulations explicitly grant local authorities the
power to co-regulate unmanned aircraft. Def.’s Mem. 8-11.
The FAA has stated:
[C]ertain legal aspects concerning small UAS use may be
best addressed at the State or local level. For example,
State law and other legal protections for individual
privacy may provide recourse for a person whose privacy may
be affected through another person’s use of a UAS.
. . . The Fact Sheet also summarizes the Federal
responsibility for ensuring the safety of flight as well as
the safety of people and property on the ground as a result
of the operation of aircraft. Substantial air safety
issues are implicated when State or local governments
attempt to regulate the operation of aircraft in the
national airspace. The Fact Sheet provides examples of
State and local laws affecting UAS for which consultation
with the FAA is recommended and those that are likely to
fall within State and local government authority. For
example, consultation with FAA is recommended when State or
local governments enact operation UAS restrictions on
flight altitude, flight paths; operational bans; or any
regulation of the navigable airspace. The Fact Sheet also
notes that laws traditionally related to State and local
police power -- including land use, zoning, privacy,
trespass, and law enforcement operations -- generally are
not subject to Federal regulation.
81 Fed. Reg. 42063 § (III)(K)(6). Thus, the FAA explicitly
contemplates state or local regulation of pilotless aircraft,
defeating Singer’s argument that the whole field is exclusive to Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 9 of 16
the federal government. The FAA’s guidance, however, does not
go quite as far as Newton argues -- rather than an express
carve-out for state and localities to regulate, the guidance
hints that whether parallel regulations are enforceable depends
on the principles of conflict preemption.
D. Conflict Preemption
Singer argues that the challenged sections of the Ordinance
obstruct federal objectives and directly conflict with federal
regulations. Pl.’s Mem. 11-17. Newton fails to respond
specifically to these arguments, again asserting that the FAA
has granted states and localities the power to co-regulate
pilotless aircraft. Def.’s Mem. 8-11. The Court addresses each
challenged subsection of the Ordinance in turn.
1. Section (b)
Singer argues that section (b) of the Ordinance infringes
upon and impermissibly exceeds the FAA’s exclusive registration
requirements. Pl.’s Mem. 11-15; Pl.’s Resp. 6-7. Section (b)
states: “Owners of all pilotless aircraft shall register their
pilotless aircraft with the City Clerk’s Office, either
individually or as a member of a club . . . .” Newton
Ordinances § 20-64(b). The Ordinance defines “pilotless
In fact, Newton has acknowledged that “[c]ommercial drone
use is heavily regulated by the FAA [and] pre-empted from
municipal regulations.” Public Safety & Transportation
Committee Report dated Mar. 23, 2016 3. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 10 of 16
aircraft” as “an unmanned, powered aerial vehicle, weighing less
than 55 pounds, that is operated without direct human contact
from within or on the aircraft.” Id. § 20-64(a).
The FAA has also implemented mandatory registration of
certain drones. See 14 C.F.R. §§ 48.1-48.205. Although such
registration initially applied both to model and commercial
drones, the FAA may not require registration of model aircraft,
because doing so would directly conflict with the Congressional
mandate in the FAA Modernization and Reform Act. See Taylor v.
Huerta, 856 F.3d 1089, 1092, 1094 (D.C. Cir. 2017). Newton
argues that this space creates a void in which the city may
regulate drones. Tr. 9:5-10:1. The FAA, however, explicitly
has indicated its intent to be the exclusive regulatory
authority for registration of pilotless aircraft: “Because
Federal registration is the exclusive means for registering UAS
for purposes of operating an aircraft in navigable airspace, no
state or local government may impose an additional registration
requirement on the operation of UAS in navigable airspace
without first obtaining FAA approval.” Def.’s Mem., Ex. 14,
State and Local Regulation of Unmanned Aircraft Systems (UAS)
(“FAA UAS Fact Sheet”) 2, ECF No. 40-15. Newton did
Although the FAA UAS Fact Sheet is not a formal rule, it
is the FAA’s interpretation of its own rule, which this Court
accords deference under Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 413-14 (1945). Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 11 of 16
not obtain FAA approval before enacting the Ordinance. Def.’s
Answers Interrogs. 3. Further, regardless of whether there is
some space that would allow Newton to require registration of
model drones, here Newton seeks to register all drones, Tr.
10:3-14, without limit as to the at which altitude they operate,
in clear derogation of the FAA’s intended authority.
Accordingly, the Ordinance’s registration requirements are
2. Subsections (c)(1)(a) and (c)(1)(e)
Singer argues that subsections (c)(1)(a) and (c)(1)(e)
conflict with FAA-permitted flight, Pl.’s Mem. 11, and restrict
flight within the navigable airspace, id. at 12-14. Subsection
(c)(1)(a) prohibits pilotless aircraft flight below an altitude
of 400 feet over any private property without the express
permission of the property owner. Newton Ordinances § 20-
64(c)(1)(a). Subsection (c)(1)(e) prohibits pilotless aircraft
flight over public property without prior permission from
Newton. Id. § 20-64(c)(1)(e). Notably, subsection (c)(1)(e)
does not limit its reach to any altitude. See id. This alone
is a ground for preemption of the subsection because it
certainly reaches into navigable airspace, see 49 U.S.C.
§ 40102(a)(32); 14 C.F.R. § 91.119. Subsections (c)(1)(a) and
(c)(1)(e) work in tandem, however, to create an essential ban on
drone use within the limits of Newton. Nowhere in the city may Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 12 of 16
an individual operate a drone without first having permission
from the owner of the land below, be that Newton or a private
The FAA is charged with “prescrib[ing] air traffic
regulations on the flight of aircraft . . . for --
(A) navigating, protecting, and identifying aircraft;
(B) protecting individuals and property on the ground; [and]
(C) using the navigable airspace efficiently.” 49 U.S.C.
§ 40103(b)(2). In 2012, Congress tasked the FAA with
“develop[ing] a comprehensive plan to safely accelerate the
integration of civil unmanned aircraft systems into the national
airspace system.” Pub. L. No. 112-95 § 332. In so doing, the
FAA mandated that drone operators keep drones below an altitude
of 400 feet from the ground or a structure. 14 C.F.R.
§ 107.51(b). Newton’s choice to restrict any drone use below
this altitude thus works to eliminate any drone use in the
confines of the city, absent prior permission. This thwarts not
only the FAA’s objectives, but also those of Congress for the
FAA to integrate drones into the national airspace. Although
Congress and the FAA may have contemplated co-regulation of
drones to a certain extent, see 81 Fed. Reg. 42063
§ (III)(K)(6), this hardly permits an interpretation that
essentially constitutes a wholesale ban on drone use in Newton.
Accordingly, subsections (c)(1)(a) and (c)(1)(e) are preempted. Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 13 of 16
3. Subsection (c)(1)(b)
Singer argues that subsection (c)(1)(b) conflicts with the
FAA’s visual observer rule and related waiver process, which
only the FAA can modify. Pl.’s Mem. 13 (citing 49 U.S.C.
§ 106(f)(2), (g)(1); 14 C.F.R. §§ 107.31, 107.205). Subsection
(c)(1)(b) states that no pilotless aircraft may be operated “at
a distance beyond the visual line of sight of the Operator.”
Newton Ordinances § 20-64(c)(1)(b). The Ordinance neither
defines the term “Operator,” nor sets an altitude limit.
The FAA “requires a delicate balance between safety and
efficiency, and the protection of persons on the ground . . . .
The interdependence of these factors requires a uniform and
exclusive system of federal regulation.” City of Burbank, 411
U.S. at 638-39 (internal citations omitted). The Ordinance
seeks to regulate the method of operating of drones, necessarily
implicating the safe operation of aircraft. Courts have
recognized that aviation safety is an area of exclusive federal
regulation. See, e.g., Goodspeed Airport LLC v. East Haddam
Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 208 (2d
Cir. 2011) (“Congress has established its intent to occupy the
entire field of air safety, thereby preempting state regulation
of that field.”); US Airways, Inc. v. O’Donnell, 627 F.3d 1318,
1326 (10th Cir. 2010) (“[F]ederal regulation occupies the field
of aviation safety to the exclusion of state regulations.”); Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 14 of 16
Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007)
(“Congress has indicated its intent to occupy the field of
aviation safety.”). The First Circuit, in fact, has ruled “that
Congress intended to occupy the field of pilot regulation
related to air safety.” French, 869 F.2d at 4. In French, the
First Circuit took note of Congress’s delegation of authority to
the FAA to issue the certificate -- and the terms for obtaining
it -- required for any person to pilot a commercial aircraft.
See id. at 3. Concluding that this grant of authority and the
FAA’s subsequent regulations expressed Congress’s intent to
preempt any state law in the area, id. at 4, the First Circuit
struck down Rhode Island’s statute requiring airline pilots to
submit to drug testing, see id. at 7.
The circumstances are not so different here. Congress has
given the FAA the responsibility of regulating the use of
airspace for aircraft navigation and to protect individuals and
property on the ground, 49 U.S.C. § 40103(b)(2), and has
specifically directed the FAA to integrate drones into the
national airspace system, Pub. L. No. 112-95 § 332. In
furtherance of this duty, the FAA has designated specific rules
regarding the visual line of sight for pilotless aircraft
operation. See 14 C.F.R. §§ 107.31-35, 107.205. First, the FAA
requires either that (1) a remote pilot both command and
manipulate the flight controls or (2) a visual observer be able Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 15 of 16
to see the drone throughout its flight. Id. § 107.31. The
regulations define “visual observer” as “a person who is
designated by the remote pilot in command to assist the remote
pilot in command and the person manipulating the flight controls
of the small UAS to see and avoid other air traffic or objects
aloft or on the ground.” Id. § 107.3. Second, the FAA allows
waiver of the visual observer rule. Id. §§ 107.200, 205.
The Ordinance limits the methods of piloting a drone beyond
that which the FAA has already designated, while also reaching
into navigable space. See Newton Ordinances § 20-64(c)(1)(b).
Intervening in the FAA’s careful regulation of aircraft safety
cannot stand; thus subsection (c)(1)(b) is preempted.
For the foregoing reasons, this Court holds that Ordinance
sections (b), (c)(1)(a), (c)(1)(b), and (c)(1)(e) are preempted
and judgment will enter so declaring. As it is unchallenged,
the remainder of Newton’s Ordinance stands. Of course, nothing
prevents Newton from re-drafting the Ordinance to avoid conflict
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE Case 1:17-cv-10071-WGY Document 62 Filed 09/21/17 Page 16 of 16