Barbara E. Lichman, Ph.D., J.D.

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On July 20, 2018, the Federal Aviation Administration (“FAA”) issued a Press Release unequivocally clarifying its views of the distribution of regulatory authority between federal and local governments with respect to the operation of aircraft, and, more specifically, unmanned aircraft systems (“UAS” or “drones”).  “Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things.  State and local laws are not permitted to regulate any type of aircraft operations such as flight paths or altitudes or the navigable airspace.”

The FAA’s position is not new, but arises directly from the Federal Aviation Act (“FAA Act”), 49 U.S.C. §§ 40103(a)(1) [“The United States government has exclusive sovereignty over the airspace of the United States”], and 49 U.S.C. § 47524(c)(1)(A)-(E), enacted as the Airport Noise and Capacity Act of 1990, which prohibits local limitations on Stage 3 aircraft operations in the absence of approval by the Secretary of Transportation and all aircraft operators at the relevant airport.

This seemingly spontaneous reiteration of Congress’ and the agency’s long held positions comes not without provocation.Continue Reading FAA Stands Firm in Defense of Federal Preemption of Airspace Regulations

On July 6, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) conclusively rejected a comprehensive challenge to the authority of the Federal Aviation Administration (“FAA”) to promulgate regulations governing that subset of unmanned aircraft systems (“UAS”) defined in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95 (codified at 49 U.S.C. § 40101, note) (“FMRA”), as “model” aircraft, i.e., those “flown for hobby or recreational purposes.”  FMRA, § 336(c)(3).

In Taylor v. FAA, D.C. Cir. No. 16-1302, the court upheld FAA regulations implementing FMRA § 336, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed.Reg. 42064 (June 28, 2016), which effectively subjects small UAS (up to 55 pounds, FMRA, § 336(c)(3)), to similar, if not identical, safety standards to those applicable to commercial UAS.Continue Reading Appellate Court Affirms FAA Control Over Recreational Drones

Updated April 30, 2018 – In a surprising turnaround of its usual tilt toward the interests of the aviation industry, the United States House of Representatives passed, on April 27, 2018, its version of the six year budget reauthorization for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2018 (“Reauthorization Act”), a number of provisions that appear to address the long smoldering, and vociferously expressed, concerns of the flying public with, among other things, the unannounced “bumping” of passengers with reservations and paid tickets to make way for airline employees; airline employees’ difficulty in dealing with passengers in such stressful situations; the size and orientation of aircraft seats that have been radically shrinking in order to make room for more passengers; and even the absence of ground transportation accessing the airport itself.  Continue Reading FAA Reauthorization Act of 2018 Gives the Nod to Passenger’s Rights, Both in the Air and On the Ground

In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
 
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
 
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
 

Continue Reading FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions

Because the Federal Aviation Administration’s (“FAA’) airspace redesign projects throughout the United States have apparently negatively impacted hundreds of thousands, even millions, of people, and because we have received a number of requests for a discussion of the bases for the currently pending challenge to the FAA’s SoCal Metroplex airspace redesign project, a copy of…

On Friday, March 16, 2018, Petitioners in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) filed an Opening Brief in their challenge to the Federal Aviation Administration (“FAA”) in its realignment of flight paths over heavily populated…

In an unusual divergence of opinion between aviation related organizations concerning progress in the operation and development of the national air traffic system, the Airline Owners and Pilots Association (“AOPA”), the nationwide organization of private aircraft owners, opposes the plan set forth in the 21st Century Aviation Innovation, Reform, and Reauthorization Act, H.R. 2997 (“AIRR Act”).  That plan calls for the air traffic control (“ATC”) system currently managed by the Federal Aviation Administration (“FAA”) to be removed from federal government control, and turned over to a 13 member, largely private, board, the dominant members of which are the nation’s commercial airlines.  See § 90305.  

The apparent rationale behind the shift, heavily supported by the commercial airline industry, is the consistent delays and resulting costs in fuel and efficiency that have been endemic to the ground based radar air traffic control system in effect since World War II.  The airline industry maintains that insufficient progress has been made in expediting operations to accommodate the increasing number of operations in the United States airspace.  The commercial airlines’ position is supported by the legislative purpose which is “to provide for more efficient operations and improvement of air traffic services.”  See § 201.  
 
AOPA, on the other hand, relies on examples of the disputed improvements in system management which it maintains undercut the airline industry rationale for pursuing privatization.  

Continue Reading The Privatization of Air Traffic Control Vigorously Opposed by General Aviation Groups

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  

Continue Reading Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock.  A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law.  Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR).  The Magistrate concludes that the state statute “does not interfere with plaintiff’s ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate[] to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.  

The Court’s decision contravenes the plain face of the FAA Act for the following reasons:  

Continue Reading Connecticut State Statute Limiting the Length of the Runway at Tweed-New Haven Airport Resists Federal Preemption Challenge

Up against a September 30th deadline for the passage of legislation before its recess, Congressman Bud Shuster introduced the 21st Century Aviation Innovation, Reform, and Reauthorization Act (“21st Century AIRR Act” or “Act”), H.R. 2997.  Although somewhat obscured by its name and size (in excess of 200 pages), one of the central points of the Bill is the transfer of air traffic control responsibility from the Federal Aviation Administration (“FAA”) to a private sector corporation (“Corporation), i.e., privatization of the air traffic control system.  The Bill betrays the speed of its development through its lack of specificity on a number of critical issues.Continue Reading Congress’ Attempt to Transfer Air Traffic Control to a Private Corporation Leaves a Great Deal to the Imagination