Uber Flies High in FAA's Airspace

The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.”  The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.  

The purpose appears to be to allow customers to fly from one part of town to another.  Very creative, but shockingly absent all but one off-hand reference to the Federal Aviation Administration (“FAA”), and the federal government’s total dominance over the airspace of the United States, 49 U.S.C. § 40103(a), including the design and construction of airports, which definition includes “vertiports.” 14 C.F.R. § 157.2. 
 
Whether recognized or not, Uber’s scheme faces a host of questions, and potential regulatory objections, that range from the way in which such episodic operations will merge with the arrival and departure paths of conventional aircraft, to the noise of even electric aircraft operating over existing residential neighbors and pedestrians using city streets.  While these are, to a large extent, the same issues posed by the operation of unmanned aircraft, or drones, they are even more immediate in this case, because the proposed electric aircraft are larger, potentially louder, and, perhaps most importantly, impinge on conventional aircraft regulatory areas long controlled by the FAA.

For example, once an aircraft leaves the ground, FAA takes control, see, e.g., 49 U.S.C. § 40103(b)(1) and (2), and coordinates with other aircraft using the same airspace in order to avoid collision.  The skies in large cities which might benefit from Uber’s scheme such as New York, are already filled with numerous aircraft on approach and departure from the various airports.  Since vertiports presumably won’t have their own air traffic control towers, it is difficult to imagine the way in which this new species of aircraft, with an on-demand operating schedule, rather than one defined in advance, will be integrated into the existing system.  

 
Similarly, vertiports are not conventional airports with runways, and are, therefore, much more in the nature of heliports, which the FAA also controls.  14 C.F.R. § 157.2.  No mentioned is made in the article, or the interview which is its focus, of the way in which Uber will interface with the FAA on the “safety and efficiency” of the facilities’ design.  
 
Finally,  no mention is made of the requirement that surrounding development be made consistent with airport operations, 14 C.F.R. Part 77, since the proposed facilities are airports in everything but name, the same requirement for limiting obstructions to air navigation, 14 C.F.R. § 77.13, could potentially be imposed on the development surrounding the “vertiports,” thereby severely constraining the height, and, thus, economic return of the surrounding developments, as well as interfering with a community’s overall development plan.  
 
In short, creative ideas are what make America great, but the FAA may bring Uber down to earth and make it realize that imagination cannot operate unfettered in the airspace of the United States.  
 

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. 
 

First, the term “model aircraft” is explicitly defined in FMRA, § 336(c)(1)-(3), as, among other things, “unmanned aircraft that is . . . (3) flown for hobby or recreational purposes.”  While Pirker does not explicitly state what has since come to light, i.e., that he was operating the aircraft for compensation, he does acknowledge that he “operated the model for the purpose of supplying aerial video and photographs of the University of Virginia campus to an advertising agency.”  Motion, p. 3.  Consequently, Pirker’s activities fall outside the scope of Congress’ definition of “model aircraft.”  See, Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984) [“If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.”].  

Second, even if, for argument’s sake, Pirker were correct that UAS are “model” aircraft, which he is not, then regulation of UAS would be thrown open to “a community based set of safety guidelines,” i.e., local regulation.  FMRA, § 336(a)(2).  The result could be a diverse and inconsistent set of regulations enacted by local communities throughout the country who may not be knowledgeable about the beneficial purposes to which UAS can be put, but are justifiably concerned about their careless, or potentially dangerous operation.

In the final analysis, under the incontestable mandates of FMRA, UAS operated for commercial purposes are engaged in interstate commerce and are, thus, subject to regulation by FAA.  [See, e.g., 49 U.S.C. 40103(a)(1) re: “Sovereignty and the Right of Public Transit – (1) The United States Government has exclusive sovereignty of airspace of the United States.”]  That regulations specific to UAS have not been finalized, and that FAA acknowledges the inapplicability of some current regulations to UAS, does not exempt UAS operated for commercial purposes from complying with those regulations that can reasonably be applied.  Which regulations may be applicable, and the extent to which they can reasonably be applied, must be, like the development of new regulations, the subject of ongoing conversations with FAA as it works its way through the revolutionary new processes and accompanying new issues presented by the exploding operations of UAS throughout the United States.