Amazon Prime Air

Amazon has announced it will use unmanned aircraft systems to deliver packages.  But how soon?  Westlaw Journal Aviation quoted Barbara Lichman and Paul Fraidenburgh today in an article entitled “The FAA’s recent notice and Amazon drone delivery.”  

FAA Proposes to Increase its Authority Over Off-Airport Development

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. 

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UAS Update Interview with LXBN TV

2014 has been the year of the unmanned aircraft systems (also known as drones).  Recently, we had the opportunity to sit down with LXBN TV to discuss the state of the UAS industry and what to expect in the coming months.  The interview is available here: LXBN 

FAA Weighs in on the Regulation of "Model Aircraft"

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 
 

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Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

 
The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.
 
The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.
 
Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?
 
Probably not.  Here’s why:
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Santa Monica Airport Commission's Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.
 

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Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 
 

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FAA Pushes Back Against Advocates of Unregulated Drone Operations

The Federal Aviation Administration (“FAA”) has appealed a recent National Transportation Safety Board administrative decision, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, in which Administrative Law Judge Patrick Geraghty ruled that FAA had no regulatory authority when it fined the operator of an Unmanned Aircraft System (“UAS”) (otherwise known as “drone”) used for commercial photography, for operating a UAS at an altitude below that approved for commercial manned aircraft.  It would do well for developers, manufacturers and operators of UAS to listen carefully to FAA’s views because the decision, while preliminary, and subject to appeal through many levels of the Federal Court system, has opened the proverbial Pandora’s Box in the relationship of manned and unmanned aircraft and their joint, or separate regulatory frameworks. 

First, it is important for the UAS community to recognize that, while Administrative Law Judge Geraghty found an absence of regulatory authority in the FAA, the Opinion did not acknowledge the seminal issue of “the federal government’s pervasive regulation of aircraft, airspace and aviation safety,” see, Montalvo v. Spirit Airlines, 508 F.3d 464, 472-74 (9th Cir. 2007).  That pervasive control arises under the Federal Aviation Act, 49 U.S.C. § 40101 in which Congress expressly granted to the Secretary of Transportation, through his/her designee, the FAA, the tasks of, among other things, “controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both . . .,” 49 U.S.C. § 40101(d)(4), as well as “encouraging and developing civil aeronautics, including new aviation technology.”  49 U.S.C. § 40101(d)(3).  That express assignment of responsibility alone gives FAA “skin in the game.” 

FAA’s response more specifically addresses what it believes to be misapprehensions about the extent of its power and authority. 
 

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Sustainable Airport Policies for Car Sharing and Ride Sharing Companies

“Disruption” has become the buzzword of the decade for technology startups.  Entrepreneurs take aim at existing markets every day with ideas designed to uproot and redefine their industries.  But some of the most innovative disrupters are having trouble bringing their ideas to a place where disruption is generally unwelcome: the airport.

Car sharing services such as Zipcar, Car2Go, and Getaround and ride sharing services such as UberX, Lyft, and Zimride are changing the game in ground transportation.  By using smartphone apps to connect drivers who have open seats in their vehicles with passengers who need rides, the ride sharing movement is reducing traffic and fuel usage.  Similarly, by planting a network of available cars throughout a city and allowing consumers to access the vehicles for a fee, car sharing makes it more practical for consumers to forego vehicle ownership altogether.  In 2014 alone, these companies have amassed hundreds of millions of dollars in venture capital financing.  Many consumers prefer these services to taxi cabs or other traditional methods of ground transportation because they are more convenient, affordable, and in some cases more environmentally friendly.  As with taxi cabs, airports are natural hubs of activity for car sharing and ride sharing services.

Notwithstanding the rising tidal wave of demand, most airports have yet to develop a workable approach to the unique legal and logistical challenges presented by car sharing and ride sharing services.  Instead, airports are prohibiting these companies from picking up or dropping off passengers at their terminals.  At a recent conference of in-house airport lawyers, several representatives from some of North America’s largest aviation hubs expressed serious concerns about these services.  One attendee suggested setting up “stings” by using the popular ride sharing apps to order rides from the airport and arresting the drivers for lack of taxi cab certification when they arrive.

However, non-airport regulators are beginning to appreciate that ride sharing services are not cab companies and should not be subject to the same regulations.  In September of 2013, California became the first state to provide a regulatory framework for Transportation Network Companies (“TNCs”), defined by the California Public Utilities Commission (“CPUC”) as any organization that “provides prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”  (See CPUC Decision 13-09-045.)  The Illinois House of Representatives followed suit last week when it passed HB 4075, which seeks to implement a set of regulations specific to ride sharing services.

With mounting political and consumer support for car sharing and ride sharing, airports are under increased pressure to adopt policies regulating these services instead of prohibiting them.  Developing practical, sustainable policies that address issues such as airport congestion, service monitoring, and revenue sharing may prove to be a more profitable and efficient solution than denying airport access to car sharing and ride sharing companies.
 

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Appellate Court Grants Wide Discretion to Newhall Land and Farming Project Proponents in the Determination of the Significance of Greenhouse Gas Emissions Under CEQA

The California Court of Appeal last week reversed a lower court decision that would have indefinitely delayed the development by Newhall Land and Farming Company of 21,308 residential units, 629 acres of mixed use development, 67 acres of commercial use, 249 acres of business park, and 1,014 acres of open space in northwestern Los Angeles County over the next 25-30 years (“Project”).  The lower court’s decision had originally granted the Petition for Writ of Mandate brought by, among others, the Center for Biological Diversity (“Respondents”), challenging, among other actions by the California Department of Fish and Wildlife (“DFW”) (“Appellant”), the revised Joint Federal/State Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) for the Project.

While the Appellate Court’s 112 page decision addressed numerous causes of action brought by Respondents in the trial court, one of the most unique and far reaching was its disposition of Respondents’ claim that the EIS/EIR’s baseline for assessing the cumulative impacts of the Project’s Greenhouse Gas (“GHG”) emissions is a procedural issue properly evaluated under the “failure to proceed in a manner required by law” standard, applicable to procedural actions, and that, employing the correct standard, the EIS/EIR’s analysis was predicated on an illusory baseline.  In a decision that is likely to be adopted in the adjudication of other California Environmental Quality Act (“CEQA”) actions challenging the evolving state and federal GHG standards, the Appellate Court firmly disagreed. 
 

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