Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

On the one hand, Title II, Unmanned Aircraft Systems Reform Act, § 2142, preempts states and other political subdivisions from enacting or enforcing “any law, regulation, or other provision having the force and effect of law relating to . . . operation . . . of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology, requirements, purposes of operation. . .”  Such a broad brush approach appears to entirely displace efforts at the state level, such as proposed SB 868 in California, authorizing the California Department of Transportation (“Caltrans”) “to adopt reasonable rules and regulations governing the conditions under which remote piloted aircraft may be operated for the purpose of protecting and ensuring the general public interest and safety. . .”  SB 868 is set for hearing April 5.  See also, AB 1724 that would require “a person or public or private entity that owns or operates an unmanned aircraft, to place specific identifying information or digitally stored identifying information on the unmanned aircraft.”  

On the other hand, § 2142(b) purports not to preempt state or local authority “to enforce federal, state or local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems” with the caveat that such local enforcement is only allowable “if such laws are not specifically related to the use of an unmanned aircraft system for those illegal acts.”  See also, § 2142(c) proposing to extend the immunity from preemption to “common law or statutory causes of action,” “if such laws are not specifically related to the use of unmanned aircraft systems.”  In other words, it would seem that operators of UAS must comply with existing laws relating to “nuisance, etc.,” but cannot be subject to new laws enacted specifically to govern the misdeeds of UAS.  
 
Finally, Congress seeks to compensate for this resulting regulatory void in other sections of the legislation, although the legislation is perhaps most notable for its exceptions from those regulatory attempts.  For example, in § 2101, Congress articulates a “privacy policy” which mandates that “the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with federal, state, and local law.”  At the same time, Congress put the responsibility for enforcement into the hands of the Federal Trade Commission, and its complex administrative procedures.  See § 2103.  
 
Further, in § 2015, the legislation establishes a convention of industry stakeholders to “facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft.”  However, the impact of that mandate is somewhat diluted by the fact that the FAA will have two years to develop the required identification standards during which time UAS can operate freely and unidentified.  In addition, § 2124 of the legislation establishes “consensus aircraft safety standards” whereby the FAA is mandated to “initiate a collaborative process to develop risk based, consensus industry airworthiness standards related to the safe integration of small unmanned aircraft systems into the national airspace system.”  This section of the FAA Reauthorization is to be codified at § 44803 of the Federal Aviation Act.  However, as with other sections of the legislation, FAA is relieved of its responsibility by a time lapse of one year to “establish a process for the approval of small unmanned aircraft systems make and models based upon safety standards developed under subsection (a).”  Finally, § 2126(b), amending into the Act § 44806, goes even further by granting to the FAA Administrator the power to use his or her discretion to exempt operators from the regulations, thus allowing certain persons to operate unmanned aircraft systems “(1) without an airman certificate; (2) without an airworthiness certificate for the associated unmanned aircraft; or (3) that are not registered with the Federal Aviation Administration.”
 
In short, the breadth of the legislation is too vast to be fully evaluated here.  Suffice it to say, that, given the exclusion of state and local authorities from the arena of drone regulation, and the long delays inherent in the rulemaking set forth in the proposed legislation, it will be some time before cognizable regulations exist to manage the rapidly growing UAS traffic in the United States.  
 

Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  
 

FAA Denies LAX Request for Approval of Longtime, "Over-Ocean," Noise Mitigation Measure

In an unexpected turn of events, the Federal Aviation Administration (“FAA”) has denied an application by Los Angeles World Airports (“LAWA”), under 14 C.F.R. Part 161 (“Part 161”), for approval of the nighttime noise mitigation procedure that requires both arrivals and departures to the west and over the Pacific Ocean from 12:00 midnight to 6:00 a.m. (“Application”).  The FAA’s decision was unexpected because the procedure has been in effect on an informal basis for almost 15 years.  LAWA sought FAA approval, pursuant to the requirements of the Airport Noise and Capacity Act of 1990, as amended, 49 U.S.C. § 47521, et seq., (“ANCA”) which requires, among other things, that any restriction on noise or access be approved by FAA or, in the alternative, all the airlines operating at the airport.  In addition, the filing of the Application was required by LAWA’s 2006 settlement with surrounding communities Inglewood, Culver City, El Segundo and the environmental group Alliance for a Regional Solution to Airport Congestion.  

FAA’s denial was based on the Application’s purported noncompliance with three of the six conditions required by ANCA for approval of restrictions on Stage 3, “quieter” aircraft.  These include: (1) the restriction be reasonable, nonarbitrary, and nondiscriminatory; (2) the restriction not create an undue burden on interstate or foreign commerce; (3) the restriction not be inconsistent with maintaining the safe and efficient use of the navigable airspace; (4) the restriction not be in conflict with a law or regulation of the United States; (5) an adequate opportunity be provided for public comment on the restriction; and (6) the restriction not create an undue burden on the national aviation system.  49 U.S.C. § 47524.  
 
FAA’s decision comports with what appears to be its general policy of denying exemptions from ANCA’s stringent restrictions.  

With respect to Condition No. 1, FAA found that LAWA had arbitrarily defined the LAX noise problem as one of night noise associated with departures to the east that do not conform to over-ocean procedures.  FAA found that LAWA’s proposed ban on such departures would benefit less than 0.2% of the population within the defined noise impact area, and, thus, would not contribute to a meaningful solution of LAX’s noise problem, although even that small percentage translates into a substantial number of citizens residing within the dense urban areas to the east of LAX.  

In addition, FAA paid substantial attention to Condition No. 2, and found that LAWA’s required cost/benefit analysis does not demonstrate that the estimated potential benefits of the proposed procedure outweigh the regulatory costs of: (1) the 1.9 million annual lost profits due to compensation paid to passengers required to be offloaded as a result of the restriction; (2) delay of crews from “delayed” aircraft; and (3) the cost of Auxiliary Power Unit operation during offloading “delay.”  
 
Finally, with respect to Condition No. 4, FAA found that LAWA had failed to demonstrate that the proposed restriction does not conflict with existing federal statutes and regulations where the Application does not take into account the effect on the authority of pilots to judge safe operations.  In other words, the FAA views the proposed restriction as a usurpation of pilot discretion.  
 
FAA’s determination to deny any application for a restriction under Part 161 is evidenced by the history of the statute and its implementing regulations under which, in the almost 25 years since ANCA’s passage, and the promulgation of 14 C.F.R. Part 161 implementing ANCA’s provisions, not a single exemption has been granted.  What is unexpected in this case is FAA’s reluctance to sanction an existing procedure, of long duration, and of already proven benefit to affected communities such as Inglewood, located immediately to the east.  The purpose of Part 161, and the integrity of FAA’s interpretation of it, must apparently await another opportunity for resolution.  
 

FAA Seeks Input from Governmental Entities Concerning Revised Air Traffic Routes Over Southern California

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
 
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
 
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
 
The governmental meetings are planned for the following locations and times:
 
November 18, 2014 - Ventura, CA
E.P. Foster Library - The Elizabeth R. Topping Room
651 East Main St., Ventura, CA 93001
10:30 a.m. - 12:30 p.m.
 
November 19, 2014 - Los Angeles, CA
Pico Union Library- Meeting Room
1030 S. Alvarado St., Los Angeles, CA 90006
10:30 a.m. - 12:30 p.m.
 
November 20, 2014 - Burbank, CA
Buena Vista Branch Library - Meeting Room
300 N. Buena Vista St., Burbank, CA 91505
10:30 a.m. - 12:30 p.m.
 
December 9, 2014 - San Diego, CA
Airport Noise Mitigation/Quieter Home Program Offices
San Diego County Regional Airport Authority - Conference Room
2722 Truxtun Rd., San Diego, CA 92106
10:30 a.m. -12:00 p.m.
 
December 10, 2014 - Palm Desert, CA
Palm Desert Library - Community Room
73-300 Fred Waring Dr., Palm Desert, CA 92260
10:30 a.m. - 12:00 p.m.
 
December 11, 2014 - Costa Mesa, CA
John Wayne Airport
Eddie Martin Administration Building - Airport Commission Hearing Room
3160 Airway Ave., Costa Mesa, CA 92626
10:00 a.m. - 12:00 p.m.
 
Questions should be addressed to Ryan Weller at (425)203-4544; or email at 9-ANM-SoCalOAMP@faa.gov; or facsimile at (425)203-4505.
 

One Community Gets Relief from Aircraft Noise

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
 

Since, and partially as a result of, the 1986 settlement and the restrictions it contained, the United States Congress enacted the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521-45733 (“ANCA”).  While ANCA clearly expressed the intent of Congress to preempt the imposition of local airport noise restrictions (“noise policy must be carried out at the national level,” 49 U.S.C. § 47521(3)), it provides two avenues to circumvent that comprehensive preemption.  First, ANCA provides seven express exceptions under which the prohibition on local enactment of airport noise restrictions does not apply.  49 U.S.C. § 47524(d).  The extension of the JWA noise restrictions qualifies under 49 U.S.C. § 47524(d)(4), as “a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety.”   

However, even where an existing or planned local restriction does not fit neatly into any one of the specific categories of exception, ANCA provides for a process whereby a proposed restriction may either: (a) be agreed to by the airport proprietor and all aircraft operators (i.e., airlines); or (b) may be submitted to the Secretary of Transportation, through his/her designee, the Administrator of the Federal Aviation Administration (“FAA”), for approval.  49 U.S.C. § 47524(c).  
 
The standards of review specified in the statute for application by the Secretary are admittedly both vague and draconian.  See, e.g., 49 U.S.C. § 47524(c)(2)(B) [“the restriction does not create an unreasonable burden on interstate or foreign commerce”].  Nevertheless, in some rare instances, such as Los Angeles International Airport’s nighttime over-ocean arrival and departure procedures, which is a local restriction long in effect, and, because of fewer night operations, not uniquely burdensome, the restriction may be able to meet ANCA’s difficult standard.  
 
In short, the currently required process under ANCA, and its implementing regulation, 14 C.F.R. Part 161, for approval of airport noise and access restrictions may not be a guarantee of success, but it is a dramatic illustration of the ancient adage, “if you don’t ask, you don’t get.”