Demystifying the Lincoln Drone Ordinance

In April of 2016, the City Council of Lincoln, Nebraska adopted an ordinance concerning unmanned aircraft systems.[1]  This ordinance was animated by fears of drone interference with an upcoming air show at the Lincoln Municipal Airport.  The ordinance incorporates provisions from Part 107[2] and FMRA § 336,[3] with a few important tweaks.  Because most of these provisions are identical, the true effect of the ordinance is simply to provide additional local enforcement authority.  Violations are subject to a progressive fine ranging from $100 for the first infraction to $500 for the third.[4]

The following table compares these provisions by subject matter.[5]

	Lincoln City Ordinance (“LCO”)[6]	Federal Regulations	Comments
Types of Unmanned Aircraft
-Model	“a small unmanned aircraft that is capable of sustained flight in the atmosphere and flown for hobby or recreational purposes”	FMRA § 336: “an unmanned aircraft that is— (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”	The LCO organizes things differently, but if you consider the definitions and operational restrictions together everything in the LCO matches FMRA § 336.
-Small Unmanned Aircraft	An “unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.”	§ 107.3: “Small Unmanned Aircraft means an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.”	[identical]
-Toy	“(1) a glider or hand-tossed aircraft that is not designed for and is incapable of sustained flight; or (2) an aircraft that is capable of sustained flight and that is controlled by means of a physical attachment, such as a string or wire”	[not defined]	Since they qualify as “toy” aircraft, the LCO does not regulate “tethered” drones.  This may or may not have been intentional, as some such aircraft are anything but toys.[7]  Section (1) may be a response to the FAA’s infamous “paper airplane admission” from Huerta v. Pirker.[8]
-Unmanned Aircraft	An aircraft that is “operated without the possibility of direct human intervention from within or on the aircraft and does not carry a human operator but can be remotely piloted or operated, also colloquially known as a drone.”  Does not include toy or public aircraft.	§ 107.3: “Unmanned aircraft means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.”	The LCO provision excludes autonomous air taxis and carves out toy and public aircraft, but it is otherwise identical.
-Unmanned Aircraft System	An “Unmanned Aircraft and its associated elements (including communication links and the components that control the unmanned aircraft) that are required for the safe and efficient operation of the unmanned aircraft in the airspace.”	§ 107.3: “Small unmanned aircraft system (small UAS) means a small unmanned aircraft and its associated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.”	Part 107 is only concerned with small UAS (under 55 pounds), so its definition does not cover heavier unmanned aircraft and their components.  The LCO does.
UAS restrictions and jurisdiction	“It shall be unlawful for any person to operate an Unmanned Aircraft System within the corporate limits of the City:”	The FAA has jurisdiction over the “navigable airspace” of the United States.[9]  It interprets that term to include airspace “at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.”[10]	Model aircraft are regulated at the federal level by FMRA § 336 and (arguably) the FAA’s generally applicable regulations on aircraft enacted prior to § 336.  All other UAS between .5 and 55 pounds are governed by Part 107.
-Registration	“(i) without registration and markings as required by Federal Aviation Administration regulations;”	§ 107.13 requires Part 107 operators to comply with the registration provision from Part 91 (which governs all aircraft).[11]	Whether model aircraft (operating under FMRA § 336 rather than Part 107) must be registered is being litigated in the D.C. Circuit now.[12]  The LCO smartly tied this requirement to the FAA’s own regulations.
-TFR/NOTAM	“(ii) in violation of any Temporary Flight Restriction included within a Notice to Airman issued by the Federal Aviation Administration; or”	[none]	All civilian aircraft must obey NOTAMs and TFRs.[13]  Those restrictions apply to any “aircraft” within the meaning of 14 C.F.R. § 1.1.[14]  As long as UAS and model aircraft fit within that definition, the LCO provision does no work, which is why this provision is absent from Part 107.
-Recklessness	“(iii) in a careless or reckless manner so as to endanger the life or property of another”	§ 107.23: “No person may: (a) Operate a small unmanned aircraft system in a careless or reckless manner so as to endanger the life or property of another”	These provisions are identical, but remember that Part 107 does not apply to model aircraft under FMRA § 336.  The FAA would argue that 14 C.F.R. § 91.13 applies because model aircraft are “aircraft” under 14 C.F.R. § 1.1.[15]
Restrictions for Model Aircraft	“In addition…Model aircraft shall not be operated:”	FMRA § 336(a): The FAA “may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—”	FMRA contains three additional criteria related to community standards, non-interference with manned aircraft, and a 55 pound weight limit.[16]  The bigger difference is that FMRA § 336 is a statutory safe harbor from the FAA’s rulemaking authority, so Part 107 does not apply to model aircraft.  By contrast, Nebraska requires the same registration, compliance with NOTAMs and TFRs, and restraint from careless or reckless behavior for model aircraft as it requires for any other UAS.
-Altitude Limit	“Model Aircraft shall not be operated: (i) at an altitude in excess of 400 feet”	[none]	While 14 C.F.R. § 107.51 proscribes a 400 foot ceiling for Part 107 operations (but not model aircraft), the LCO’s altitude limit only applies to model aircraft.  FMRA § 336 does not regulate altitude for model aircraft.
-Proximity to Airport	“Model Aircraft shall not be operated … (ii) within five miles of Lincoln Airport unless the Airport Authority of the City of Lincoln and the Lincoln Airport Control Tower have been first notified;”	FMRA § 336 (a)(5): “when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation”	FMRA § 336 adds that “model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport))”.  It is curious that the LCO is codified in the Lincoln Airport chapter of its compiled ordinances but does not address such a procedure.
-Line of Sight	“Model Aircraft shall not be operated … (iii) outside the visual line of sight of the operator”	FMRA § 336(c): “’model aircraft’ means an unmanned aircraft that is— … (2) flown within visual line of sight of the person operating the aircraft”	The LCO uses an operational limit and FMRA a definition, but the effect is the same.

You can find the official text in Lincoln’s Municipal Code here.  If you have legal questions about your drone operations anywhere in Nebraska or South Dakota, click “Get in Touch” above for a free consultation.

---

[1] Lincoln City Ordinance 20318 § 4 (April 18, 2016).

[2] 14 C.F.R. § 107.

[3] FAA MODERNIZATION AND REFORM ACT OF 2012 (“FMRA”), PL 112-95, February 14, 2012, 126 Stat. 11.

[4] See Lincoln Municipal Code § 1.24.010.

[5] Please note that this analysis does not cover the provisions concerning public aircraft.

[6] Lincoln Municipal Code §§ 4.28.060-4.28.090.

[7] See, e.g., http://elistair.com/.

[8] See https://www.ntsb.gov/legal/alj/Pages/pirker.aspx.

[9] 49 U.S.C. § 40103.

[10] 14 C.F.R. § 1.1.

[11] See 14 C.F.R. § 91.203.

[12] See https://www.documentcloud.org/documents/2673936-Taylor-v-FAA.html .

[13] See 14 C.F.R. §§ 91.137; 91.138; 91.144.

[14] See infra n. 10.

[15] “Aircraft means a device that is used or intended to be used for flight in the air.”

[16] FMRA § 336 also allows for model aircraft larger than 55 pounds if they are “otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization”.