As if it didn’t have enough to do, the Federal Aviation Administration (“FAA”) is now proposing to expand the definition of “Aeronautical Activities”, which currently includes “any activity that involves, makes possible, is required for the operation of an aircraft/vehicle, or that contributes to, is required for, the safety of such operations” FAA Order 5190.6B, Airport Compliance Manual, Appendix Z. Up to now, that category has generally encompassed the operation of various types of now-existing aircraft, safety equipment, and maintenance of terminal facilities needed to support the operation of such aircraft. Under both the governing statute, see e.g. 49 U.S.C. 47107(a)(1), and the contractual obligations accompanying the grant of FAA funding for airport development, e.g. Grant Assurance 22, Economic Non-discrimination, the airport is required to be “made available for public use, on reasonable conditions and without unjust discrimination, to all types and classes of aeronautical activity, including commercial aeronautical activities offering services to the public.”
As Shakespeare would say, therein lies the rub. FAA’s new rule would include in the category of protected aeronautical activities ”repair and maintenance of launch and re-entry vehicles, certain UAS, Advanced Air Mobility (AAM), commercial space vehicle operations, and any other activities that have a direct relationship to the operation of aircraft, UAS, or commercial space launch and re-entry vehicles.” This proposed new definition vastly expands the inventory of “aeronautical uses” that may operate above the heads of airport neighbors.
For example, the amount of noise that may be created by these new uses is as yet unanalyzed and, thus, undetermined. While it is true that the proposed Rule specifically omits”…airspace design, research and development, flight simulation and engine testing facilities that are not associated with the final assembly of a commercial space vehicle”, it still leaves open a vast panorama of uses that are more freely operational than existing aircraft varieties (i.e. do not require runways or specific flight paths), and that may operate at altitudes far below those of current commercial aircraft.
These hypotheses are not mere speculation. Citizens are already experiencing the impacts of drone operation at low altitudes in deliveries to neighboring properties. It is not a stretch of the imagination to foresee much larger and heavier “commercial space vehicles” operating at existing airports, with attendant impacts on surrounding uses.
FAA has set the date for comments on the proposed Rule as Dec. 15, 2023. Submit your comments and stay tuned to hear what others in similar positions have to say.