Case 1:21-cv-02160-ENV-RLM Document 1 Filed 04/20/21 Page 1 of 12 PageID #: 1
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`Plaintiff,
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`Docket No.
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`COMPLAINT
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`XIZMO MEDIA PRODUCTIONS LLC
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`CITY OF NEW YORK,
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`Defendant.
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`-against-
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`Plaintiff Xizmo Media Productions LLC, by and through its undersigned counsel,
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`Muchmore & Associates PLLC, as and for its Complaint herein against Defendant City of New
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`York, alleges the following:
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`Introduction
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`The instant action presents a challenge, prima facie and as applied, to the
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`1.
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`constitutionality of section 10-126(c) of the New York City Avigation Law (N.Y.C. Administrative
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`Code 10-126, et seq., hereinafter, the "Avigation Law") under Article VI, clause 2 of the United
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`States Constitution and the First Amendment to the United States Constitution. Section 10-126(c)
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`of the Avigation Law (hereinafter, the "UAV Ban") effectively imposes a complete ban on the
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`operation of unmanned aerial vehicles ("UAV's" or "drones") within the limits of New York City.
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`Plaintiff maintains a film support business in New York City, which would use drones for purposes
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`of filming pursuant to permits and/or waivers granted by the Federal Aviation Administration, were
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`it not for conflicting provisions of the Avigation Law, which fail to recognize federally granted
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`waivers and permits. This action seeks declaratory and injunctive relief determining the UAV Ban
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`to be unconstitutional and enjoining further enforcement of the UAV Ban in circumstances where
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`the Federal Aviation Administration has authorization a drone launch.
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`Jurisdiction
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`2.
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`This Court has subject matter jurisdiction of this dispute pursuant to 28 U.S.C. Sec.
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`1331 and 1343(3) and (4), as this action concerns rights afforded under the United States
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`Constitution. Plaintiff's claims for declaratory and injunctive relief are authorized by 28 U.S.C.
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`2201 and 2202 and Fed. R. Civ. Proc. 57.
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`Venue
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`3.
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`Venue is proper in the United States District Court for the Eastern District of New
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`York pursuant to 28 U.S.C. 1391(b)(2) on the basis that a substantial part of the events or omissions
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`giving rise to the claim occurred in Kings County, New York.
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`Parties
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`Plaintiff Xizmo Media Productions LLC ("Xizmo" of "Plaintiff") is a domestic
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`4.
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`limited liability company organized and existing under the laws of the State of New York, with its
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`principal place of business located at 67 West Street, Suite 714, Brooklyn, New York 11222.
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`5.
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`Defendant City of New York is a municipal corporation organized and existing
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`under the laws of the State of New York and the New York City Charter.
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`General Provisions of the Avigation Law
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`6.
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`The Avigation Law defines an "aircraft" as "any contrivance, now or hereafter
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`invented for avigation or flight in the air, including a captive balloon, except a parachute or other
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`contrivance designed for use, and carried primarily as safety equipment." N.YC. Admin Code Sec.
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`10-126(a)(1).
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`7.
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`The Avigation Law defines a "place of landing" as "any authorized airport, aircraft
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`landing site, sky port or seaplane base in the port of New York or in the limits of the city." N.YC.
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`Admin Code Sec. 10-126(a)(2).
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`8.
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`The Avigation Law defines "limits of the city" as "the water, waterways and land
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`under the jurisdiction of the city and the air space above same." N.Y.C. Admin Code Sec. 10-
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`126(a)(3).
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`9.
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`The Avigation law defines "avigate" as "to pilot, steer, direct, fly or manage an
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`aircraft in or through the air, whether controlled from the ground or otherwise." N.Y.C. Admin
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`Code Sec. 10-126(a)(4).
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`10.
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`The Avigation Law defines a "person" as "a natural person, co-partnership, firm,
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`company, association, joint stock association, corporation or other like organization." N.Y.C.
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`Admin Code Sec. 10-126(a)(6).
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`11.
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`The Avigation Law at N.Y.C. Admin Code 10-126(c) provides:
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`Take offs and landings. It shall be unlawful for any person avigating an aircraft to take off
`or land, except in an emergency, at any place within the limits of the city other than places
`of landing designated by the department of transportation or the port of New York authority.
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`12.
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`Section 10-126(c) of the N.Y.C. Administrative Code does not provide a permitting
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`process for commercial UAV operation nor does it purport to recognize any permits or waivers
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`issued by the Federal Aviation Administration for federally licensed professionals to operate such
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`vehicles.
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`13.
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`Section 10-126(c) of the N.Y.C. Administrative Code is, for all practical purposes,
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`a complete and total prohibition on the operation of UAV's at any location within the limits of New
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`York City for any purposes whatsoever. Accordingly, Plaintiffs refer to this section of the Avigation
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`Law as the "UAV Ban".
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`14.
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`The "zero-tolerance" nature of the UAV Ban is clearly articulated on the Official
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`Website of the City of New York, which provides:
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`Call 911 to report a drone use in New York City.
`It is illegal to fly them [drones] in New York City.
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`History and Relevant Provisions of Federal Law
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`15.
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`The United States Government has exercised continual and exclusive sovereignty
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`over the national airspace since the passage of the Air Commerce Act of 1926. See 49 U.S.C.
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`40103(a)(1).
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`16.
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`The Federal Aviation Act was enacted in 1958 to "provide for the regulation and
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`promotion of civil aviation in such manner as to best foster its development and safety, and to
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`provide for the safe and efficient use of airspace by civil and military aircraft..." 48 U.S.C. 1301.
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`17.
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`The Federal Aviation Act of 1958 created the Federal Aviation Administration
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`("FAA") to carry out the policy objectives of the legislation. The FAA has since exercised pervasive
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`authority over the national airspace and the use of aircraft. The FAA is responsible for prescribing
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`regulations for "navigating, protecting, and identifying aircraft", "protecting individuals and
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`property on the ground", and "using the navigable airspace efficiently." 49 U.S.C. 40103(b)(2).
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`18.
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`49 U.S.C. 40103(a)(1) states clearly: "The United States Government has exclusive
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`sovereignty of airspace of the United States." (emphasis added)
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`19.
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`49 U.S.C. 40103(a)(2) provides: "A citizen of the United States has a public right
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`of transit through the navigable airspace." The public right of navigation derives from the
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`Commerce Clause1 and is firmly rooted in the Nation's history, traditions, and constitutional
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`jurisprudence. 20.
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`The United States Congress has responded to the proliferation of UAV
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`technology, passing the FAA Modernization and Reform Act of 2012 ("FMRA") to regulate and
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`integrate recent advancements in aviation.
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`21.
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`Section 332 of the FMRA, entitled "Integration of Civil Unmanned Aircraft
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`Systems Into National Airspace System", directed the FAA to develop a plan for "the safe
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`1 See e.g. United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940).
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`integration of civil unmanned aircraft systems into the national airspace as soon as practicable, but
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`not later than September 30, 2015." Section 332(3).
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`22.
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`Section 332(1)(G) of the FMRA directed the FAA to develop a plan with
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`recommendations for the "establishment of a process to develop certification, flight standards, and
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`air traffic requirements for civil unmanned aircraft systems..."
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`23.
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`The FAA responded with regulations, inter alia, for small, unmanned aircraft,
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`including 14 CFR Part 107.
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`24.
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`14 CFR Part 107, Subpart C sets forth a rigid and comprehensive application
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`process by which qualified individuals can obtain permits for the limited operation of small,
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`unmanned aircraft systems2 (hereinafter, "FAA Permit"). FAA Permit applicants must demonstrate
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`their aeronautical knowledge by passing an initial aeronautical knowledge test covering twelve
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`distinct areas of knowledge related to the safe operation of UAV's. 14 CFR Part 107.73(a).
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`Thereafter, FAA permit holders are required to complete a recurrent aeronautical knowledge test
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`every 24 months. 14 CFR Part 107.65. 25. FAA regulations at 14 CFR 107.200 also establish a
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`waiver policy whereby the FAA "may issue a certificate of waiver authorizing a deviation from
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`any regulation specified in 107.205 if the Administrator finds that a proposed small UAS operation
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`can be safely conducted under the terms of that certificate of waiver." 14 CFR 107.200(a).
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`26.
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`In addition to the foregoing, the FAA regulations at 14 CFR 107.200 prescribe
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`regulations concerning every facet of UAV operation, evincing an intent on the part of Congress
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`to fully occupy the field of UAV regulation.
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`27.
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`Such FAA regulations are rigorously enforced by the federal government. In 2017,
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`2 FAA regulations define "small unmanned aircraft" as "an unmanned aircraft weighing less than 55 pounds…" 14
`CFR 107.3. The instant action is intended to apply only to such. For purposes of this pleading, "UAV's" or "drones"
`are synonymous with "small unmanned aircraft" as such term is defined by federal law.
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`the FAA imposed a $200,000.00 fine, its largest to date, on a commercial drone operator for illegal
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`UAV flights in New York City and Chicago.
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`Relevant Precedent
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`28. Modern developments in the law, both at the state and federal level, offer a
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`framework for assessing the constitutionality of New York City's UAV Ban.
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`29.
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`In People v. Santoriello, N.Y.S.2d 539 (N.Y. Crim. Ct., 1999), Section 10-126(d)(1)
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`of the Avigation Law was found to be preempted by various provisions of title 49 of the U.S. Code.
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`Citing 49 U.S.C. 40103(a)(1) (providing that "the United States Government has exclusive
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`sovereignty of airspace of the United States."), 49 U.S.C. 40102(30) (defining "navigable airspace"
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`under federal law), and 49 U.S.C. 40103(a)(2) (establishing citizens' "public right of transit
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`through the navigable airspace."), the Santoriello court found that the legislative intent of the Act
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`[the Federal Aviation Act] was to preserve the rights of the citizens of the United States and set
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`nation-wide standards for the use of the navigable airspace. Furthermore, the fact that that the
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`defendant in Santoriello had obtained a "Certificate of Waiver or Authorization" from the FAA
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`expressly allowing him to engage in the precise conduct purportedly outlawed by the Avigation
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`Law led the court to conclude:
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`This court sees no escape from the conclusion that however salutary and well-intentioned
`the Code may be, it does in fact entirely prohibit, not regulate, what the federal government
`has authorized. Therefore, Administrative Code 10-126(d)(1) is unconstitutional on its
`face. Id.
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`30.
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`In Singer v. City of Newton, 284 F. Supp. 3d 125 (D. Mass. 2017), a federal court
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`in Massachusetts held that a municipal UAV ordinance was conflict preempted. The ordinance at
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`issue in Singer was a multipronged regulatory scheme that, taken together, effected a complete ban
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`on UAV operation within the City of Newton. Analyzing each prong separately, the Singer court
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`found: (1) the ordinance's drone registration requirement conflicts with the FAA's exclusive
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`regulatory authority for the registration of pilotless aircraft; (2) the ordinance's altitude restriction
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`conflicts with the FAA's exclusive regulatory authority over the navigable airspace; (3) the
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`ordinance's prohibition on pilotless flight over public property without the city's consent conflicts
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`with the FAA's exclusive regulatory authority over the navigable airspace; and (4) the ordinance's
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`prohibition on UAV operation outside the line of sight of the operator conflicts with the FAA's
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`specific guidelines for visual observers of UAV's as well as the FAA's policy of issuing waivers of
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`such guidelines to qualified applicants.
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`Applicability of the Avigation Law to Plaintiff
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`31.
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`Plaintiff
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`is a
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`full-service production company
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`specializing
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`in aerial
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`cinematography. It is one of many film support companies clustered in Greenpoint, Brooklyn.
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`32.
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`The film industry is a historical pillar of the New York economy. According to a
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`2000 study prepared at the request of the New York City Comptroller's Office, the visual media
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`industry accounts for over 170,000 jobs in New York City and contributes about $10.0 billion to
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`the local economy. That same study recommends that "New York should take steps to ensure the
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`continued growth and success" of this industry.
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`33.
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`Xizmo is one of hundreds of companies that rely on the nationally uniform
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`regulation of U.S. airspace and aircraft to engage in interstate commerce.
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`34.
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`Xizmo's co-founder and head of aerial operations is a federally licensed private
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`pilot and Xizmo only conducts aerial operations with the supervision of similarly qualified
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`professionals.
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`35.
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`In 2016, Xizmo obtained a remote pilot certification pursuant to 14 CFR 107,
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`Subpart C.
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`36.
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`In 2017, Xizmo obtained an FAA waiver exempting it from federal prohibitions on
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`nighttime UAV operation. This waiver provides:
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`The FAA's Flight Standards Service has reviewed your application to ensure compliance
`with the requirements of 14 CFR 107.200. The Administrator finds that the proposed sUAS
`[small, unmanned aircraft systems] operation can be conducted safely under the provisions
`of this Certificate of Waiver (Waiver) as listed below, because you have established
`adequate mitigations for risks involved with operating your sUAS in the manner you
`described. Adherence to the provisions of this Waiver establishes the required level of
`safety within the national airspace system. (emphasis added).
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`37.
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`In 2019, Xizmo obtained an FAA waiver exempting it from federal prohibitions on
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`UAV operation over human beings. This waiver provides:
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`14 CFR 107.39(a), Operations over human beings is waived to allow sUAS operations over
`human beings who are not direct participants, necessary for the safe operation of the small
`unmanned aircraft.
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`38.
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`In 2018, Xizmo obtained FAA permits to operate small UAV's in class B airspace
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`under the jurisdiction of New York's Kennedy Airport Control and LaGuardia Airport Traffic
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`Control.
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`39.
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`Plaintiff has, on multiple occasions, had its aerial productions shut down by the
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`New York City Police Department despite the certificates and waivers it has obtained from the
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`FAA.
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`40.
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`Upon information and belief, the UAV Ban has caused Plaintiffs hundreds of
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`thousands of dollars in damages.
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`AS AND FOR A FIRST CAUSE OF ACTION
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`(PREEMPTION)
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`41.
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`Plaintiff repeats and realleges the allegations above with the same force and effect
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`as if set forth at length herein.
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`42.
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`Plaintiff is a member of a class for whose benefit 49 U.S.C. 40103 et seq., the
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`FMRA, and 14 CFR Part 107 were enacted.
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`43.
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`Federal laws concerning the navigable airspace and FAA regulation thereof create
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`express and implied rights in Plaintiff's favor.
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`44.
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`The UAV Ban violates Plaintiff's rights under federal law and violates the
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`Supremacy Clause of the United States Constitution because:
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`a. Congress has expressly empowered the FAA to regulate civil unmanned
`aircraft;
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`b. Congress has expressly instructed the FAA to integrate civil unmanned aircraft
`into the national airspace system;
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`c. By effectively outlawing the use of UAV's at any place within the limits of New
`York City, the UAV Ban frustrates the clearly expressed will of Congress;
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`d. The FAA exercises its regulatory authority over UAV's and their operation on a
`uniform, comprehensive, and nationwide basis;
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`e. The FAA exercises authority over the navigable airspace within the limits of
`New York City;
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`f. The City adheres to a policy and practice of imposing fines on UAV operators
`and encouraging citizens to report the use of UAV's to law enforcement
`irrespective of the permits and/or waivers such operators may have obtained
`from the FAA and in clear conflict of Plaintiff's lawful operation of UAV's under
`14 CFR Part 107;
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`g. The UAV Ban conflicts with FAA control of Class B airspace, a portion of the
`national airspace for which Plaintiff has obtained express authority from the
`FAA to operate UAV's;
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`h. The UAV Ban conflicts with the FAA's power to grant, or Plaintiff's freedom to
`exercise, remote pilot certifications under 14 CFR Part 107, Subpart C;
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`i. The UAV Ban conflicts with the FAA's power to grant, or Plaintiff's freedom to
`exercise, waivers under 14 CFR Part 107, Subpart D;
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`j. The UAV Ban is substantially more onerous than federal regulation of UAV's;
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`k. The UAV Ban violates Plaintiff's federal right of navigation;
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`l. Federal regulation of aircraft and airspace is pervasive and occupies the entire
`field of law.
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`45.
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`The UAV Ban has caused and will continue to cause direct and substantial
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`economic harm to the Plaintiff.
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`46.
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`As a result of the foregoing, Plaintiff requests declaratory judgment establishing
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`that the UAV Ban is unconstitutional on its face and/or as applied to Xizmo and similarly situated
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`commercial operators and enjoining its enforcement to the extent it is found to be unconstitutional.
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`AS AND FOR A SECOND CAUSE OF ACTION
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`(FIRST AMENDMENT)
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`47.
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`Plaintiff repeats and realleges the allegations above with the same force and effect
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`as if set forth at length herein.
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`48.
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`Plaintiff uses UAV's as a form of artistic expression.
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`49.
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`The UAV Ban is, in effect, a complete injunction on constitutionally protected
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`speech.
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`50.
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`The UAV Ban burdens substantially more speech than necessary to serve a
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`significant governmental interest.
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`51.
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`The UAV Ban is not narrowly tailored and does not leave open alternative avenues
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`of expression for aerial cinematographers.
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`52.
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`The UAV Ban is an unreasonable prohibition on speech within a limited public
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`forum and does not, in any way, further the federal government's stated objectives concerning
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`integration of UAV's into the national airspace.
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`53.
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`The UAV Ban is void for vagueness because it is facially inconsistent with FAA
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`regulations and has not been modified since the invention of drones and the amendment of federal
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`law to accommodate them.
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`54.
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`The UAV Ban is void for vagueness because, despite being preempted by FAA
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`regulations, it does not address the legal consequence of FAA-granted permits or waivers.
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`55.
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`Plaintiff is entitled to know what, if any, FAA certificates or waivers are recognized
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`under New York law.
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`56.
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`Plaintiff has invested substantial sums of money and effort in an enterprise that the
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`UAV Ban purports to control.
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`57.
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`The prospect of civil or criminal penalties under the UAV Ban poses a grave risk of
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`reputational damage and economic harm to Plaintiff and similarly situated UAV operators.
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`58.
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`As a result, the UAV Ban has created a chilling effect that inhibits Plaintiff's
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`exercise of constitutionally protected modes of artistic expression.
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`59.
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`To the extent the UAV Ban purports to prohibit Plaintiff from operating a UAV
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`within the limits of New York City, it violates the First and Amendment of the United States
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`Constitution. 42 U.S.C. Sec. 1983 authorizes the Plaintiff to seek relief from this Court.
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`60.
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`As a result of the foregoing, Plaintiff requests declaratory judgment establishing
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`that the UAV Ban is unconstitutional on its face and/or as applied to Plaintiff and similarly situated
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`UAV operators and enjoining its enforcement to the extent it is found to be unconstitutional.
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`REQUEST FOR RELIEF
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`WHEREFORE, Plaintiff Xizmo Media Productions LLC respectfully requests that this
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`Court issue an Order granting relief as follows:
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`a. Declaring that N.Y.C. Admin Code 10-126(c) is preempted by federal law, and
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`thus violates the Supremacy Clause of the United States Constitution;
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`b. Declaring that N.Y.C. Admin Code 10-126(c) violates the First Amendment;
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`c. Declaring that the City of New York must recognize Remote Pilot Certificates
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`issued by the Federal Aviation Administration and permit the limited use of
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`UAV's as set forth in such certificates;
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`d. Declaring that the City of New York must recognize Certificates of Waiver
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`issued by the Federal Aviation Administration and permit the limited use of
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`UAV's as set forth in such waivers;
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`e. Granting attorneys’ fees pursuant to 42 U.S.C. 1988; and
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`f.
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` Granting such other and further relief as the court deems just and proper.
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`Dated: Brooklyn, New York
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`April 20, 2021
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`MUCHMORE & ASSOCIATES PLLC
`Counsel for Plaintiff
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`By: /s/ Andrew Muchmore .
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`Andrew Muchmore, Esq. (AM 7852)
`84 Withers Street, 4th Flr.
`Brooklyn, NY 11211
`(917) 932-0299
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