Congressional Stalemate Persists over Air Traffic Control Privatization as FAA Reauthorization Deadline Approaches

The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
 
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
 

Namely, it would not privatize Air Traffic Control.  In the House of Representatives, the pending Aviation Innovation, Reform, and Reauthorization Act of 2016 would completely overhaul domestic Air Traffic Control operations by moving the operations out of the FAA to a non-profit corporation. If successful, the House bill would place approximately 38,000 Air Traffic Control employees, and the management of the safest national airspace system in the world, in the hands of a private corporation.  

Though the Senate and House bills share many commonalities, each passing day without congressional consensus brings mounting fears that the current efforts to modernize American aviation will devolve into an endless string of short-term extensions. The July 15 deadline has industry insiders calling for the House to adopt the Senate’s more measured approach to reauthorization and to table the Air Traffic Control overhaul until 2017.  

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. 
 

First, FAA addresses the “myth” that it doesn’t control airspace below 400 feet, by reference to 14 C.F.R. § 91.119 which requires that aircraft used in commerce stay at 500 or more feet in altitude above rural areas and 1,000 feet above urban areas.  Second, and related, FAA disputes that model aircraft guidelines apply, i.e., that UAS used in commerce should be treated in the same way as models operating below 400 feet, three miles from an airport, and away from populated areas. 

Third, FAA takes the position that “there are no shades of gray in FAA regulations,” and, thus, anyone who wants to fly, manned or unmanned in the United States airspace needs some level of FAA approval.  FAA states that:

“Private sector (civil) users can obtain an experimental airworthiness certificate to conduct research and development, training and flight demonstrations.  Commercial UAS operations are limited and require the operator to have certified aircraft and pilots, as well as operating approval. To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified, and they can only fly in the Arctic. Public entities (federal, state and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA).”

Finally, FAA attempts to dispel what it believes to be the misconception that all commercial UAS operations will be allowable after the deadline established by Congress for the development of regulations, September 30, 2015.  Promulgation of regulations will be incremental beginning with UAS under 55 pounds, later this year, with as yet unspecified provisions applicable to commercial operations. 

In fact, FAA has already started planning the rule making process in its November 7, 2013 publication of “Integration of Civilian Manned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap” (“Roadmap”) which sets forth “the tasks and considerations needed to enable UAS integration into the NAS . . .” Roadmap, p. 5.  FAA plans to follow up with an annual publication setting forth “further refined goals, metrics and target dates.”  Id. 

In the final analysis, and despite the recent administrative court decision bruited about by the press, the real challenge for UAS developers, manufacturers and operators, both present and future, is to successfully navigate the dangerous shoals of FAA regulation and to “work collaboratively and apply the necessary resources to bring this transition to fruition while supporting evolving UAS operations in the NAS.”  Id. at p. 5.