Xizmo Media Productions Sues NYC for Banning Drones

On Tuesday, Xizmo Media Productions filed a complaint in the Eastern District of New York against the City of New York challenging the constitutionality of a law that effectively banned drones in the city.

According to the complaint, Section 10-126(c) of the New York City Avigation Law (hereinafter, the UAV Ban) “effectively imposes a complete ban on the operation of unmanned aerial vehicles (‘UAV(s)’ or ‘drones’) within the limits of New York City.” The complaint described in more detail the terms and definitions within the Avigation Law.

Xizmo Media Productions asserted that it “maintains a film support business in New York City, which would use drones for purposes of filming pursuant to permits and/or waivers granted by the Federal Aviation Administration (FAA), were it not for conflicting provisions of the Avigation Law, which fail to recognize federally granted waivers and permits.” The plaintiff claimed that it relies on “the nationally uniform regulation of U.S. aerospace to engage in interstate commerce.”

In particular, the plaintiff claimed that the UAV ban “does not provide a permitting process for commercial UAV operation nor does it purport to recognize any permits or waivers issued by the Federal Aviation Administration for federally licensed professionals to operate such vehicles.” Thus, Xizmo Media Productions contended that this section of the law essentially bans UAVs in New York City. As further evidence, the plaintiff pointed to the official website for the City of New York, which states, “Call 911 to report a drone use in New York City. It is illegal to fly them (drones) in New York City.” The plaintiff noted that, nationally, the FAA is responsible for aviation-related regulation and pointed to the FAA Modernization and Reform Act of 2012, which has a section that “directed the FAA to develop a plan for ‘the safe integration of civil unmanned aircraft systems into the national airspace.’ ”

Citing precedent, Xizmo Media Productions alleged that under Santoriello, the U.S. government has “exclusive sovereignty of airspace of the United States” and the intent of the Federal Aviation Act “was to preserve the rights of the citizens of the United States and set nation-wide standards for the use of the navigable airspace” and the fact that the defendant in the suit had a waiver allowed the court to declare the law in question unconstitutional because of its prohibitions not regulations. In Singer v. City of Newton, the court similarly found that “a municipal UAV ordinance was conflict preempted.”

The plaintiff noted that it has a remote pilot certification, various FAA waivers, and an FAA permit to operate small UAVs “in class B airspace under the jurisdiction of New York’s Kennedy Airport Control and LaGuardia Airport Traffic Control.” However, despite these federal permissions, Xizmo Media Productions allegedly has had its aerial productions shut down by the police on multiple occasions, purportedly costing it hundreds of thousands of dollars in damage. Additionally, the plaintiff proffered that the UAV Ban is preempted by federal law.

The causes of action are preemption and violation of the First Amendment.

Xizmo Media Productions seeks declaratory and injunctive relief and to enjoin further enforcement of the UAV Ban where the FAA has authorized it, among other relief.

The plaintiff is represented by Muchmore & Associates PLLC.