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.  
 

Interview with Avionics Magazine

Aviation and aerospace attorney Paul Fraidenburgh was quoted in “Pirker v. Huerta Ruling Clears the Way to UAS Integration” published in Avionics Magazine on November 25, 2014.  The full article is available here: http://www.aviationtoday.com/av/commercial/Pirker-v-Huerta-Ruling-Clears-the-Way-to-UAS-Integration_83611.html#.VHUKG53Tncv

Pirker Reversed: NTSB Confirms FAA Has Jurisdiction Over Drones

Earlier today, in a landmark decision for the unmanned aircraft systems industry, the National Transportation Safety Board reversed the Administrative Law Judge Patrick Geraghty’s order in the Pirker case and held that unmanned aircraft systems fall squarely within the definition of “aircraft” under the Federal Aviation Regulations.  This is the most significant legal opinion issued to date on the issue of drones in the United States. 

In a twelve page opinion reversing the ALJ’s March 7, 2014 decisional order, the NTSB stated:
“This case calls upon us to ascertain a clear, reasonable definition of ‘aircraft’ for purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1: an ‘aircraft’ is any ‘device’ ‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in § 91.13(a) applies with respect to the operation of any ‘aircraft’ other than those subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to determine whether respondent operated the aircraft ‘in a careless or reckless manner so as to endanger the life or property of another,’ contrary to § 91.13(a).”
The Federal Aviation Administration’s success on appeal comes as no surprise to most members of the UAS industry, many of whom have already tacitly recognized the FAA’s jurisdiction over unmanned aircraft by specifically requesting regulatory exemptions to conduct commercial UAS operations under Section 333 of the FAA Modernization and Reform Act of 2012.
 

The overturned decision, which had held that Respondent Raphael Pirker was entitled to dismissal of a $10,000 FAA enforcement action arising out of Mr. Pirker’s UAS operations in the vicinity of the University of Virginia’s campus, condemned the FAA for adopting an “overreaching interpretation” of the definition of “aircraft” under the Federal Aviation Regulations.  The order even went so far as to state that adopting the FAA’s interpretation “would result in reductio ad obsurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”  The NTSB’s appellate panel unanimously disagreed.

Today’s decision will maintain lasting significance as the FAA moves forward with developing comprehensive UAS regulations and exercising its jurisdiction over this bourgeoning technology – jurisdiction which the FAA impliedly promised in its appellate brief that it would not abuse.
 

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. 
 

FAA has defined the terms in accordance with the ordinary meaning reflected in the Merriam-Webster Dictionary definition of “hobby” [“pursuit outside one’s regular occupation engaged in especially for relaxation”], and “recreation” [“refreshment of strength or spirit after work”] [emphasis added].  On that basis, FAA unequivocally asserts that neither “commercial operations” [an aircraft operated by a “person who for compensation or hire engages in the carriage by aircraft in air commerce of persons or property,” 14 C.F.R. § 1.1], nor flights that are in furtherance or are incidental to a business, are for hobby or recreational purposes, and, thus, fall outside the definition of “model aircraft.”  FAA asserts its authority under 14 C.F.R. Part 91 to govern those flights that are for business purposes but do not involve common carriage.  Obviously, the FAA’s interpretation would foreclose from the definition of “model aircraft” any aircraft used in return for compensation or the prospect of compensation.

Even if a model aircraft meets the definition in FMRA § 336(d), it will not automatically be exempt from FAA regulation.  In addition, it must meet the following five factors set forth in FMRA § 336(a)(1)-(5): (1) the aircraft is flown strictly for hobby or recreational use (the same factor as contained in the underlying definition); (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 lbs. unless otherwise certified through a design, construction, inspection, flight test and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within five miles of an airport, the operator of the aircraft provides the airport operator and airport traffic control tower with prior notice of the operation. 

FAA interprets the “community-based” set of standards requirement, consistently with the Congressional history of FMRA, to include a “comprehensive set of safety guidelines” established by a “membership based association that represents the aeromodeling community within the United States; [and] provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground.”  U.S. House of Representatives, FAA Modernization and Reform Act, Conference Report (to Accompany H.R. 658), 112 H. Rpt. 381 (Feb. 1, 2012). 

The requirement that the model aircraft weigh 55 lbs. or less refers to the weight of the aircraft at the time of the operation, not the weight of the aircraft alone.  This limitation is for the purpose of avoiding the situation in which an aircraft could be weighted down with equipment and still meet the 55 lbs. standard.  79 Fed.Reg. 36174 (although the 55 lbs. standard may be exceeded if it meets certain requirements set forth in § 336(a)(3)). 

Finally, FAA is not merely a paper tiger with respect to enforcement of these rules, even where model aircraft meet all the requirements for an exemption, and even where an exemption is applicable.  FAA interprets FMRA to require compliance by model aircraft of rules applicable to all aircraft in general, incorporating: (1) how the aircraft is operated (including the dropping of objects so as to create a hazard to persons or property, 14 C.F.R. § 91.13-15); (2) operating rules for designated airspace (to minimize risk of collisions, 14 C.F.R. § 91.126-35); and (3) special restrictions such as temporary flight restrictions and notices to airmen (NOTAMs) (to accommodate unique and unexpected obstacles to operation, 14 C.F.R. § 91.137). 

FAA interprets its enforcement power to derive not only from FMRA § 336 itself [“Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system,” § 336(b)], but also from its existing statutory authority “to prescribe regulations to protect people and property on the ground,” 49 U.S.C. § 40103(b)(2); see also 14 C.F.R. § 91.119 governing the altitude of aircraft over populated areas.

In short, there can be no mistake that both the Congress and the FAA regard “model aircraft” as “aircraft,” potentially exempt from specific operating rules under specified circumstances, but not exempt from the safety rules governing all “aircraft” using the NAS.  UAS operators seeking to take refuge behind the denomination of “model aircraft” will do well to seek an exemption under FMRA § 336(a)(1)-(5), and to operate in a manner consistent with FAA general rules governing aircraft safety and the protection of the airspace system and people and property on the ground, or expose themselves to lengthy and expensive enforcement actions that can be avoided with careful scrutiny and understanding of operant law and regulation. 

The public may submit comments identified by Docket No. FAA-2014-0396 on or before July 25, 2014 as set forth in 79 Fed.Reg. 36172.