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.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
 
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
 


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On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
 
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
 


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In a marked change in longtime Federal Aviation Administration (“FAA”) policy regarding analysis of noise and air quality impacts from FAA initiated, directed or funded projects, FAA has substituted a single new model for the long mandated Integrated Noise Model (“INM”) and Emissions and Dispersion Modeling System (“EDMS”).  Beginning May 29, 2015, FAA policy “requires” the use of the Aviation Environmental Design Tool version 2b (“AEDT 2b”), which integrates analysis of aircraft noise, air pollutant emissions, and fuel burn.  These impacts, according to FAA are “interdependent and occur simultaneously throughout all phases of flight.”  80 Fed.Reg. 27853.  

 
The FAA policy provides for differential displacement of existing analytic models.  For air traffic and airspace procedural changes, AEDT 2b replaces AEDT 2a, already in use.  For other, ground based projects, AEDT 2b replaces both the INM, for analyzing aircraft noise, and EDMS for developing emissions inventories and modeling emissions dispersion.  The change was presaged by FAA Administrator Michael Huerta who announced in April that FAA was undertaking an “ambitious project” to revamp its approach to measuring noise.  The “ambitious project” was apparently inspired by the vocal objections to the results of the analysis using current methodologies, voiced by citizens of locals that have experienced the effects of FAA’s current, nationwide reorganization of airspace around major airports to institute procedures based on Performance Based Navigation (“PBN”).  
 


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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.


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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. 

In a twelve page opinion reversing the ALJ’s March 7, 2014 decisional order, the NTSB stated:
“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).”
The Federal Aviation Administration’s success on appeal comes as no surprise to most members of the UAS industry, many of whom have already tacitly recognized the FAA’s jurisdiction over unmanned aircraft by specifically requesting regulatory exemptions to conduct commercial UAS operations under Section 333 of the FAA Modernization and Reform Act of 2012.
 


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In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for

Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.  

The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant. 
 


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