October 5, 2017

Landmark drone ruling grounded in navigation safety

Drones, or unmanned aircraft systems, as they are formally known, are a rapidly emerging technology that is already having an impact on various industries, including insurance. All stakeholders recognize that a key factor in how this technology develops is how it will be regulated. The answer to that question has now begun to take shape.

The air is a public highway, as Congress has declared. Were that not true, transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.

On September 21, a federal district court issued the first decision addressing the right of states and municipalities to regulate drone flights, in Michael S. Singer v. City of Newton. The case involved an ordinance in Newton, Massachusetts, that effectively banned drone flights over the city without property owners’ prior permission, citing privacy concerns. The court's landmark decision agreed with the plaintiff’s argument that federal regulation of the nation’s airspace preempted all operational and flight related sections of the ordinance.

This is an extremely important ruling for several reasons.

  1. This is the first preemption ruling regarding drone flight.  As such, it is certain to be cited in future cases.
  2. It upholds a long tradition of federal preemption of state and local authority to regulate all forms of aviation.  
  3. This ruling paves the way for safe and sensible growth and innovation in drone technology. It is also important because the Plaintiff and the industry amici did not challenge the authority of states and municipalities to enforce their general laws regarding public health, safety and privacy if violated by drone operators.

Clyde & Co supported the pro se plaintiff, a Federal Aviation Administration-certified drone pilot, by writing the amici curiae brief for the Consumer Technology Association and the Association of Unmanned Vehicle Systems International which the court acknowledged in its decision for the helpful information provided therein.

The brief provided the district court with a long history of federal case law addressing preemption of state and local regulation of aviation and other forms of emerging technologies.  The brief also analyzed the implications arising from Congress' mandate to the FAA to incorporate unmanned aircraft systems into the national airspace.

The amici brief cited to numerous Supreme Court decisions including its 1946 decision in United States v. Causby.  In that decision, the US Supreme Court held that local regulation of flight was not consistent with either federal law or common sense: “The air is a public highway, as Congress has declared. Were that not true, transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”

We believe that drone technology has the potential to improve daily life, provide a crucial tool for emergency response and have a dramatic impact on most businesses. As the recent disasters have shown, the insurance industry, for example, is already using drones to help insureds assess property risk, conduct inspections in locations where it would be unsafe for human beings to go, and in quickly adjusting damage claims.  First responders and the media have also used drone technology to assist them in performing their roles.

The Clyde team that assisted in this case were honored to help develop the law In this area and be part of a legal evolution as it responds to both technological and societal changes. This process can take a while, and typically occurs as courts look to historical decisions for guidance. By looking back at decades of aviation rulings, the federal court in Singer applied sound reasoning to a very modern innovation.