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.
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.
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.
The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.
On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).
Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”). On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services. The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System. Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.
Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.
California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation. Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills. The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.
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).”