As the popularity of unmanned aircraft systems (“UAS” or “drones”) increases, expanding to such hybrid uses as local air taxi services, the Federal Aviation Administration (“FAA”) has been faced with pressure to loosen existing restrictions on drone operation. The FAA’s initial regulation, 14 C.F.R. Part 107, in essence, gave with one hand while taking away with the other, by prohibiting drone operations under a variety of different circumstances, including a prohibition on operation over people, 14 C.F.R. § 107.39, prohibition on night operations, 14 C.F.R. 107.29, and prohibition on flights over moving vehicles, 14 C.F.R. § 107.25, while providing, at the same time, a process for obtaining waivers of those prohibitions, 14 C.F.R. § 107.200. In its Notice of Proposed Rulemaking (“NPRM”), RIN 2120-AK85, FAA now proposes to allow operations over people and at night without the need for waivers, if the UAS meet certain preliminary standards, and the remote pilot in command conducts the activity pursuant to the proposed rule.
The Federal Aviation Administration (“FAA”) Reauthorization Act of 2018 (“Act”), passed by Congress on October 3, 2018, devotes an entire section, Title 1, Authorizations, subtitle D, to “Airport Noise and Environmental Streamlining.” Among the 22 provisions enacted by the subtitle, at least 12 deal directly or indirectly with aircraft noise. These provisions almost exclusively require “studies,” “research,” “consideration,” and “reports,” and notably lack, with only three exceptions, any mandate for substantive action. Continue Reading Congress Provides for Numerous Noise Studies in 2018 FAA Reauthorization Act
The Los Angeles Daily Journal recognized Paul J. Fraidenburgh as a “Top 40 Under 40” lawyer. The prestigious list honors notable attorneys based in California for their professional achievements. Mr. Fraidenburgh practices out of Buchalter’s Orange County office, and is a member of the Firm’s Litigation Practice Group. His practice focuses on the aviation, aerospace, and technology industries.
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.
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.
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.
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.
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 the Opening Brief of Petitioners City of Culver City, California; Santa Monica Canyon Civic Association; Donald Vaughn; and Stephen Murray 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) can be accessed by clicking here. Also filing briefs as Amici Curiae, or friends of the court, in support of Petitioners are the City of Los Angeles and the West Adams for Clear Skies.
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 neighborhoods throughout Southern California. The challengers strongly object to FAA’s emphasis on efficiency (i.e., savings in fuel consumption) by the airlines, to the exclusion of any consideration of the noise and emissions tradeoffs necessary to achieve the efficiency benefits of that tradeoff. A more complete discussion of the basis for the challenge is set forth in an article published by Law360 on March 19, 2018, and can be accessed by clicking here.
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.