The Federal Aviation Administration (“FAA”) reports that close calls between conventional aircraft and unmanned aircraft systems (“UAS” or “drones”) have increased during 2014 to more than 40 per month over earlier reports of 10 such incidents in the months of March and April. Some of these incidents have occurred in the busy airspace surrounding Los Angeles, California, Washington, D.C., and John F. Kennedy Airport in New York. Some of these conflicts have arisen because untrained operators of recreational drones are unaware of FAA’s guidelines governing such use. Those guidelines ask, among other things, that “hobby” drones stay away from civil aviation, below 400 feet AGL, and at least 5 miles from airports. However, as FAA prepares to release its highly anticipated Notice of Proposed Rulemaking for small unmanned aircraft systems, the focus is not on hobbyists, but on commercial operators.
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.
“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).”
Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq., “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”). The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project. The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal networks and promotion of mixed land uses.” Update, page 3.
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.
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.
“Disruption” has become the buzzword of the decade for technology startups. Entrepreneurs take aim at existing markets every day with ideas designed to uproot and redefine their industries. But some of the most innovative disrupters are having trouble bringing their ideas to a place where disruption is generally unwelcome: the airport.
Car sharing services such as Zipcar, Car2Go, and Getaround and ride sharing services such as UberX, Lyft, and Zimride are changing the game in ground transportation. By using smartphone apps to connect drivers who have open seats in their vehicles with passengers who need rides, the ride sharing movement is reducing traffic and fuel usage. Similarly, by planting a network of available cars throughout a city and allowing consumers to access the vehicles for a fee, car sharing makes it more practical for consumers to forego vehicle ownership altogether. In 2014 alone, these companies have amassed hundreds of millions of dollars in venture capital financing. Many consumers prefer these services to taxi cabs or other traditional methods of ground transportation because they are more convenient, affordable, and in some cases more environmentally friendly. As with taxi cabs, airports are natural hubs of activity for car sharing and ride sharing services.
Notwithstanding the rising tidal wave of demand, most airports have yet to develop a workable approach to the unique legal and logistical challenges presented by car sharing and ride sharing services. Instead, airports are prohibiting these companies from picking up or dropping off passengers at their terminals. At a recent conference of in-house airport lawyers, several representatives from some of North America’s largest aviation hubs expressed serious concerns about these services. One attendee suggested setting up “stings” by using the popular ride sharing apps to order rides from the airport and arresting the drivers for lack of taxi cab certification when they arrive.
However, non-airport regulators are beginning to appreciate that ride sharing services are not cab companies and should not be subject to the same regulations. In September of 2013, California became the first state to provide a regulatory framework for Transportation Network Companies (“TNCs”), defined by the California Public Utilities Commission (“CPUC”) as any organization that “provides prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.” (See CPUC Decision 13-09-045.) The Illinois House of Representatives followed suit last week when it passed HB 4075, which seeks to implement a set of regulations specific to ride sharing services.
With mounting political and consumer support for car sharing and ride sharing, airports are under increased pressure to adopt policies regulating these services instead of prohibiting them. Developing practical, sustainable policies that address issues such as airport congestion, service monitoring, and revenue sharing may prove to be a more profitable and efficient solution than denying airport access to car sharing and ride sharing companies.
In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County.
Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .” Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest. December 17, 2013. The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1. The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department.
Therein lies the rub.
The Transportation Security Agency’s (“TSA”) Screening of Passengers Through Observation Techniques (“SPOT”) program, aimed at revealing potential security issues at airports, was roundly criticized by the Government Accountability Office (“GAO”) in a report released Friday, November 15, 2013. The report found that the results of the three year old program, employing approximately 3,000 “behavior detection officers” at 146 of the 450 TSA regulated U.S. airports are unvalidated, that the model used to confirm the program’s efficacy was flawed and inconclusive, and that the report used improper control data and methodology and, thus, lacks scientific proof that the program could identify potential assailants.
The program’s critics include Steven Maland, a GAO Managing Director, Representative Benny Thompson of Mississippi, ranking Democrat on the House of Representative’s Homeland Security Committee, and the Chairman of that Committee, Michael McCall of Texas, all of whom take the position that “the proof is in the pudding.” They cite the recent attack by a gunman at LAX during which TSA officers at the security checkpoint failed to push the panic button to alert local authorities, but instead used an abandoned landline, giving the gunman the opportunity of four minutes and 150 rounds of ammunition before he was stopped.
Trucking industry challenges to the Port of Los Angeles’ pollution rules for trucks carrying cargo to and from the Port (“Clean Truck Program”) have hit the United States Supreme Court. The Court has agreed to accept certiorari to decide whether the rules that require, among other things, that trucking firms enter into agreements with the Port Authority of Los Angeles (“Port Authority”) to govern regular maintenance of trucks, off-street parking, and posting of identifying information are an unconstitutional interference with interstate commerce. Perhaps most contentious is the requirement that, ultimately, all truck operators must become employees of trucking companies, rather than acting as independent contractors.
The American Trucking Association originally challenged the Clean Truck Program on the grounds of a Federal law deregulating and preempting local authority “related to a price, route, or service of any motor carrier.” 49 U.S.C. § 14501(c)(1). Although the Port Authority has had surprising success in the lower courts thus far, the preemption provision relied upon by the trucking industry bears a substantial similarity, even identity, with the provisions in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq. (“ADA”), which has rarely been successfully challenged.
Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.” 77 Fed.Reg. 44515, Monday, July 30, 2012. FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports.
The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012. Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions. 77 Fed.Reg. 44516. Sponsors of commercial service airports, however, are treated quite differently. …