Evolving Law on Airport Implications by Unmanned Aerial Systems (2017)

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4commercial and general aircraft are surprised to learn that civil (including commercial) and public drone operators have no obligation to provide airports with notice of their activities in Class G Airspace, for exam- ple. Alternatively, to the extent they are entitled to notice of certain UAS operations, and to the extent they even know about the requirement that small UAS operators under Part 107 provide advance notice to the FAA when flying in Class B, C, D, and E air- space, airport sponsors are unsure whether they can refuse such operations at their airports and whether any liability or regulatory violation will attach to that decision. Meanwhile, a patchwork of state UAS laws, together with an emerging body of federal UAS laws, has created ambiguity as to where federal authority ends and local authority begins for purposes of ensur- ing safety and deterring errant and/or nefarious drone users from creating nuisances, invading personal pri- vacy rights, or trespassing against property. An important goal of this report is to identify and discuss the laws, regulations, and policies that do exist and to explain best practices that have developed around these evolving authorities and existing legal rules and precedent. This report is further designed to provide guidance for professionals addressing UAS- airport issues for the first time, as well as profession- als with considerable experience looking for more sophisticated guidance on specific issues. Accordingly, this report begins with basic information on the cur- rent state of UAS law and graduates to a more detailed discussion of specific UAS-airport issues. Parts II through IV introduce the seminal factual, legislative, and judicial background while parts V through VII discuss the latest thinking and controversy on issues such as federalism, preemption, the impact of UAS operations on common law privacy and property rights, and the practical effect of newly promulgated Part 107 on UAS operations over, near, at, and around airports. Part VIII details best practices identified by various stakeholders, focusing on community engage- ment and insurance. Part IX offers an international perspective and part X offers concluding remarks, synthesizing research findings and taking stock of the current state of evolving law on airport implications by UAS. Finally, a series of practice-oriented appendi- ces follows the narrative portion, providing, inter alia, a glossary of terms, guidance and policy documents, answers to frequently asked questions, a model UAS ordinance, a sample UAS insurance application, and interview summaries and poll results. Fundamentally, this report is intended to provide an overview of the principal legal and operational issues relating to UAS at airports; it is not intended to provide legal advice regarding any particular issue or to provide detailed guidance on specific legal or operational issues that apply to airports or the myr- iad technical issues related to airspace management and airport operations. Where appropriate, this guide identifies numerous resources for more in-depth information on specific topics, building on ACRP Report 144, Unmanned Aircraft Systems (UAS) at Airports: A Primer (2015) as a starting point. II. FACTUAL BACKGROUND: CURRENT UAS DEVELOPMENT, USES, AND APPLICATIONS Like other wireless devices that make up the Inter- net of Things, many UAS are “smart” in that they are artificially intelligent devices equipped with sophisti- cated sensor suites, high-definition cameras, global positioning systems, and algorithmic-driven software solutions that collect, analyze, and act on “big data.” The military’s use of “Predator,” “Reaper,” and other sinister-named drones equipped with these high-tech tools to conduct sensitive intelligence, surveillance, and reconnaissance (ISR) missions overseas or to exe- cute “signature strikes” abroad has been well-docu- mented in the media.2 But, while the use of combat drones may dominate the airwaves and print and digi- tal media, of equal importance is the potential for use of UAS in the civilian and commercial marketplace. In fact, the essence of the drone revolution is the democratization of flight and the low barrier to entry into the marketplace for small unmanned aircraft. Anyone can fly in any airspace, let alone the naviga- ble airspace, from anywhere, at any time, by purchas- ing a micro- or small drone (i.e., unmanned aerial vehicle (UAV) weighing less than 0.55 and 55 lbs., respectively) on the Internet or off the shelf at a local retailer. Affordable and widely accessible, these and other over-the-counter or amateur- and home-built drones enable operators to fly with greater agility and fewer operational, infrastructure, and human costs and constraints than traditional aircraft and helicopters. Use of, or access to, air traffic control (ATC), airports, and airfields is unnecessary for many of these missions. Indeed, from backyards and roof- tops everywhere, operators can operate micro- and small drones with ordinary smartphones and tablets. 2 Use of combat drones raises legal issues involving the law of armed conflict, sovereignty, and cyberwarfare. These issues are beyond the scope of this report, but see generally ChArles JArnot, introduCtion to unmAnned Air- CrAft systems 1–15 (Richard K. Barnhart et al. eds., 2012). See also John Villasenor, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 hArV. J.l. pub. pol’y 457, 462 (2013) (tracing unmanned airplanes from Alphonse Penaud’s rubber strand-powered models in the 1870s, through the British “Queen Bee” biplanes of the 1930s, to military assets of the United States, Russia, Canada, Israel, and Europe in the modern era). See also p.W. singer, Wired for WAr (Penguin Press 2009).

5Due to the low cost, availability and ease of use, it is obvious why journalists, real estate agents, farmers, insurance companies, wedding photographers, and delivery companies around the world are keen to develop and exploit drones commercially. The potentially limitless civil applications of UAS include: aerial photography and videography; urban planning; public safety; border management; coastal security and maritime patrol; insurance; emergency search and rescue; weather monitoring; pipeline and railroad monitoring; forest fire monitoring; watershed management; earthquake and tsunami damage assessment and relief operations; motor vehicle traffic management; lava flow monitoring; land use surveys; geographical, geological, and archaeological surveys; power line inspection; educational and academic uses; first responder medical support; and critical infra- structure inspection (e.g., bridges). While satellites and traditional aircraft also accomplish many of these objectives, UAS perform dirty, dull, and dangerous mis- sions more nimbly and cost-effectively than manned aviation. For example, using high resolution, multi- spectral, thermal, and hyperspectral sensors on drones, farmers can use precision agriculture to assess yield and crop health from the air—a data-driven approach that is far more efficient and cost effective than man- ual, ground-based processes reliant on the naked eye. UAS thus offer an aerial asset, whose agility is supe- rior to that of traditional airplanes and rotorcraft, maximizing information gathering and surveillance capabilities while minimizing the human costs associ- ated with low-altitude, close-proximity missions. The drawbacks of recreational and commercial UAS operations are equally apparent, however. While UAV that are ready to fly out of the box are celebrated for opening the skies to numerous avia- tion enthusiasts and entrepreneurs, the ability of novices with no experience, coupled with the oppor- tunity for bad actors with bad intentions, to fly at any time from any place (or virtually from any place) for any purpose in relative anonymity, is concerning. Indeed, the proliferation of small UAV generally presents serious questions of safety, privacy, and security—issues that are acute for airport sponsors and their legal counsel. The potential for collision and interference with traditional aircraft is not merely hypothetical either given reports of UAS fly- ing over, near, at, and around airports. The title of a recent article from the United Kingdom—“Idiot Flies Drone Alongside Flybe Jet Landing at Newquay Airport”—makes the point.3 Stateside, vendors Brookstone and Hudson News removed boxes of UAS from their airport store shelves after New York and New Jersey transportation authori- ties demanded that they stop offering the merchan- dise for sale.4 In addition to these operational concerns, UAS operations are stretching thin com- mon law doctrines such as those relating to private property and privacy, as well as constitutional prin- ciples under the First, Second, Fourth, Fifth, and Tenth Amendments, in unprecedented ways. Among the most significant legal questions raised by advances in unmanned aviation is whether the use of drones by law enforcement agencies to gather evidence of wrongdoing is consistent with the consti- tutional protection against unreasonable searches and seizures. Also unknown is whether privacy and property rights conceived in the eighteenth century extend to the current era in which low-flying HD- cameras make it easy for “peeping toms,” voyeurs, or nosy neighbors to engage in improper behavior. Where do long-standing negligence laws stand with respect to flying UAVs near traditionally piloted air- planes and airports, moreover? And, perhaps most important, with the FAA projecting the incorpora- tion of 7 million drones into the airspace by 2020,5 how can or should airport authorities—in the absence of unambiguous and comprehensive regula- tions—integrate or deconflict UAV operations in a NAS originally designed for manned flight? 6 As to airports specifically, common sense suggests that unmanned airplanes should fly nowhere near airports, airport personnel, or airport traffic of any kind. And, yet, paradoxically, UAS operations offer airport sponsors many advantages over, near, at, and around airports of all types. Among the many beneficial uses UAS present to airport sponsors, con- tractors, consultants, and tenants are: terminal and perimeter inspection; airfield condition inspections and foreign object debris detection; traffic manage- ment; parking surveillance; emergency response and event management; airport construction, 4 Pavritha Mohan, Airport Stores Agree to Stop Selling Drones after Plea from Port Authority, fAst CompAny, (Aug. 15, 2015), https://www.fastcompany.com/3050155/fast- feed/airport-stores-agree-to-stop-selling-drones-after- plea-from-port-authority. 5 fed. AViAtion Admin., FAA Releases 2016 to 2036 Aero- space Forecast, https://www.faa.gov/news/updates/?newsI d=85227&cid=TW414. 6 See generally Doug Lenz & Dae Suh, Navigating Quickly Crowding Skies, Airport mAgAzine, Sept. 2016, at 12, 13 (“Airports across the country are seeing record pas- senger counts… As airspace becomes increasingly crowded with additional planes, and with the upsurge in UAS, aero- space officials at NASA say the current Air Traffic Control System will not be equipped to handle the predicted vol- ume or variety of aircraft expected in 2035 and beyond.”). 3 Gareth Corfield, Idiot Flies Drone Alongside Flybe Jet Landing at Newquay Airport, the register, (Aug. 11, 2016), http://www.theregister.co.uk/2016/08/11/drone_ near_miss_flybe_newquay_airport/ (“Although the near- miss was reported to police, a search of the area revealed no trace of the drone or its operator.”).

6infrastructure and property surveying, and capital project support; wildlife management; aircraft main- tenance; passenger services; cargo operations; acci- dent response; and safety management system (SMS) and Part 139 inspections. In a 2016–2017 survey of members of the AAAE (see Figure 1), airport sponsors identified and ranked the importance of seven pre-identified legal issues with respect to UAS operations over, near, at, and around their respective airports. Method- ologically, respondents were asked to score the most important issue as “1” with the relatively least important issue as “7.” As illustrated below, among the issues presented, nearly 70% of respon- dents identified accidents or incidents as the over- all most important issue, with 11% of respondents ranking security and terrorism as the next overall most important legal issue related to drone opera- tions over, near, at, and around airports.7 When asked to compare and score UAS-related legal issues relative to each other after accidents or inci- dents, 45% of all respondents placed security and terrorism as the overall second most important issue,8 39% scored law enforcement third,9 23% scored grant assurances fourth,10 22% identified preemption (i.e., conflicts between or among fed- eral, state, and local laws) fifth,11 42% ranked personal property rights and land use sixth,12 and 41% scored privacy seventh.13 Interestingly, while the survey blends operational issues (i.e., accidents or incidents, security and terror- ism, and law enforcement) with legal issues (i.e., preemption, property and land use rights, grant assurances, and privacy), airport stakeholders appar- ently gave more weight to operational concerns than to legal ones. Even an ostensibly economic concern— grant assurances—was identified as a greater con- cern than the legal issues presented to respondents. Arguably this is so because the survey was taken after Part 107 was promulgated, bringing some degree of regulatory certainty to airport sponsors.14 7 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). Approximately 4% of all respondents identi- fied grant assurances and preemption as the most impor- tant issue, with 2% scoring law enforcement as the most important issue. Id. No respondents indicated property and land use was the most important issue. Id. In terms of an aggregate weighted score, respondents identified the following issues from most important to least: accidents and incidents (6.46), security and terrorism (5.10), law enforcement (4.37), grant assurances (3.73), preemption (3.08), property rights and land use (3.0), and privacy (2.50). Id. 8 Id. After security and terrorism, respondents ranked as the second most important issue: accidents or incidents (15%), law enforcement (11%), grant assurances (11%), property rights and land use (7%), preemption (4%), and privacy (2%). Id. 9 Id. Respondents voted law enforcement as the third most important issue, followed by grant assurances (16%), security and terrorism (13%), preemption (9%), property rights and land use (7%), privacy (6%), and accidents or incidents (4%). Id. 10 Id. Most respondents voted grant assurances as the fourth issue, followed by law enforcement (20%), preemp- tion (19%), property rights and land use (15%), privacy (11%), and security and terrorism (8%). No respondents voted accidents or incidents as the fourth most important issue. Id. 11 Id. Most respondents ranked preemption fifth, fol- lowed by grant assurances (21%), property rights and land use (19%), law enforcement and privacy (both at 13%), security and terrorism (8%), and accidents or accidents (2%). Id. 12 Id. Most respondents voted property rights and land use as the sixth issue most important issue, followed by preemption and privacy (both at 15%), law enforcement (9%), grant assurances and security and terrorism (both at 6%), and accidents or accidents (2%). Id. 13 Id. Privacy received the most votes as the seventh most important UAS-related issue, followed by followed by preemption (21%), grant assurances (15%), property rights and land use and security and terrorism (both at 6%), and accidents or accidents (2%). Id. No respondents indicated law enforcement as the least important issue. Id. 14 Though no authoritative reports exist of security breaches or terrorism involving drones, and notwithstand- ing the existence of largely ambiguous data about incidents involving drones and manned aircraft, it was expected that airport sponsors would identify operational issues (i.e., acci- dents, incidents, security, and terrorism) as primary con- cerns given how central safety is for anybody involved in aviation. See Part VII.C, infra. Airport sponsors ranked oper- ational issues over legal issues, however—an unexpected outcome. Given the lack of a formal set of UAS regulations until only as recently as August 2016, and given widespread reports that UAS manufacturers, owners, and operators expressed uncertainty about and pent up demand for rules specifying how, when, and where to fly drones, it was pre- sumed that respondents would identify the legal environ- ment as their primary concern. See generally Editorial, Speed and Transparency Needed for Civil UAS Use, AViAtion Wk. & spACe teCh., May 26/June 2, 2014, at 74. Moreover, it Figure 1. Importance of UAS Issues for Airport Sponsors

7A. Definitions and Terminology In 2005, the FAA defined the word drone as “[a] device that is used or intended to be used for flight in the air that has no onboard pilot.” 15 This definition was initially criticized by the popular press and at least one administrative law judge as being so broad as to be comical, including paper airplanes and baseballs; it was ultimately upheld by the National Transportation Safety Board (NTSB), however.16 But, in fact, the FAA intended to include all classes of airplanes, helicopters, airships, and translational lift aircraft that have no onboard pilot in this definition, explaining: 17 [t]hese devices may be as simple as a remotely controlled model aircraft used for recreational purposes or as complex as surveillance aircraft flying over hostile areas in warfare. They may be controlled either manually or through an autopilot using a data link to connect the pilot to the air- craft. They may perform a variety of public services: surveil- lance, collection of air samples to determine levels of pollution, or rescue and recovery missions in crises situa- tions. They range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds. The one thing they have in common is that was hypothesized that respondents would select preemption as the most important issue after safety and security. See Part V, infra. After all, resolving whether federal regulators or state authorities have jurisdiction over UAS operations below the navigable airspace would go a long way to resolv- ing the remaining issues of grant assurances, law enforce- ment, property and land use rights, and privacy. 15 fed. AViAtion Admin., memorAndum, unmAnned Air- CrAft systems operAtions in the u.s. nAtionAl AirspACe system–interim operAtionAl guidelines, AFS-400, UAS POLICY 05-01 (Sept. 16, 2005). Broadly, federal law estab- lishes three separate type of conveyances: vessels (which provide transportation on water), vehicles (which provide transportation on land), and aircraft (which provide trans- portation by air). In other words, contrary to popular usage, an “aircraft” is not a “vehicle” under law. See U.S. v. Reid, 206 F. Supp. 2d 132 (D. Mass. 2002) (an aircraft is not a vehicle under the USA PATRIOT Act). 16 E.g., Jason Koebler, The FAA Thinks It Can Regulate Paper Airplanes and Baseballs, motherboArd, (Apr. 14, 2014), http://motherboard.vice.com/read/the-faa-thinks-it- can-regulate-paper-planes-and-baseballs. The case of Huerta v. Pirker directly addressed whether the FAA could consider an unmanned aerial vehicle as an aircraft for enforcement purposes. See Huerta v. Pirker, Docket No. CP-217 (NTSB Mar. 6, 2014), https://www.ntsb. gov/legal/alj/Documents/5730.pdf. There, the FAA fined Raphael “Trappy” Pirker $10,000 for operating a Ritewing Zephyr powered glider as an “aircraft in a careless or reck- less manner so as to endanger the life or property of another” around the University of Virginia in October 2011. Id. The FAA argued that the powered glider was an aircraft and was operated for compensation, in that payment was received for video and photographs taken during the flight. Id. Pirker moved to dismiss the order and penalty against him on the basis that the FAA lacked the legal authority to regulate model aircraft flight operations. Id. The FAA coun- tered that it had the power to regulate all aircraft and that model aircraft fell within the scope of the term aircraft. Id. Judge Patrick Geraghty of the NTSB, sitting as the admin- istrative law judge (“ALJ”), disagreed, reasoning that the FAA had historically considered aircraft and model aircraft as two different things. Id. For example, the FAA had modi- fied the term “aircraft” with the prefix “model” in its policies to distinguish one device or contrivance from another. Id. As such, the ALJ rejected the FAA’s argument that its power to regulate aircraft included regulation of model air- craft: to believe otherwise would be to entertain the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [the] FAA.” Id. The ALJ also did not accept the FAA’s attempt to reg- ulate Pirker’s model aircraft because the FAA had not formally enacted any rule allowing it to regulate model aircraft as aircraft at that point: [The FAA] has not issued an enforceable [Federal Aviation Regulation (FAR)] regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of “aircraft” by relegating model aircraft operations to voluntary compliance with [existing FAA guidance] … [Thus, Pirker’s] model aircraft was not subject to FAR regulation and enforcement. Id. The FAA appealed the ALJ’s decision out of a concern “that this decision could impact the safe operation of the national airspace and the safety of people and property on the ground.” In its appeal, the FAA inventoried the unsafe maneuvers of Piker’s powered glider in proximity to vehicles, buildings, people, streets, and structures in the vicinity of the University of Virginia in violation of the aviation regulation that prohibits the careless and reckless operation of an air- craft. Id. The FAA specifically detailed that Pirker flew “through a tunnel containing moving vehicles; under a crane; below treetop level over a tree-lined walkway…[and was] operated within approximately 15 feet of a statue; within approximately 50 feet of railway tracks; within approxi- mately 50 feet of numerous individuals; within approxi- mately 20 feet of an active street containing numerous pedestrians and cars; within 25 feet of numerous buildings on the University of Virginia campus; on at least three occa- sions, the UAV was operated under an elevated pedestrian walkway; above an active street; directly towards a two-story building on the campus below its rooftop and making an abrupt climb in order to avoid hitting the building; and within approximately 100 feet of an active heliport.” Id. In April 2014, the NTSB affirmed the FAA’s character- ization of Pirker’s powered glider as an “aircraft,” the opera- tion of which could be regulated by the FAA. The Pirker case ultimately resolved by way of a negotiated fine of $1,100 for impermissible drone flight. See generally Jason Koebler, The FAA Gave Us a List of Every Drone Pilot Who Has Ever Been Fined, motherboArd, (Jun 1, 2016), http://mother- board.vice.com/read/faa-drone-fines; Jason Koebler, The FAA Has Never Fined Anyone For Flying a Drone Commer- cially, motherboArd, (Jun 1, 2016), http://motherboard.vice. com/read/the-faa-has-never-fined-anyone-for-flying-a- drone-commercially. 17 fed. AViAtion Admin., memorAndum, unmAnned Air- CrAft systems operAtions in the u.s. nAtionAl AirspACe system–interim operAtionAl guidelines, AFS-400, UAS poliCy 05-01 (Sept. 16, 2005).

8their numbers and uses are growing dramatically. In the United States alone, approximately 50 companies, universi- ties, and government organizations are developing and pro- ducing some 155 unmanned aircraft designs.18 The FAA’s initial estimate of the numbers of uses and users of UAS were modest in retrospect, as the FAA registered more than 616,000 owners and indi- vidual drones in 2016 alone. The number of drones has eclipsed the number of piloted aircraft in the United States.19 Of the numerous shapes and sizes, fixed-wing aircraft and quadcopters are the most common kinds of drones in the civilian marketspace. They are manufactured by sophisticated domestic and foreign producers as well as by amateurs with home-built kits. Many drones come standard with artificially intelligent software and sensor suites that are managed remotely from ordinary personal digital devices. The smallest drones are nano-, micro-, and mini-battery–powered gadgets that are compact and lightweight enough to fit in the palm of a hand. On the opposite end of the spectrum, as the FAA noted, the largest macro-drones are com- mercial jet-sized machines, some of which are mili- tarized, weaponized, and equipped with avionics that act on commands transmitted from ground stations thousands of miles away. Operationally, drones work in three dimensions, allowing remote pilots to ascend, hover, and maneu- ver over traffic, troops, terrorists, railroad tracks, poachers, endangered wildlife, film sets, weddings, or runways and air traffic control towers as effort- lessly as they can fly inside, in airport terminals and airplane hangars. Altogether, the global inventory of drones includes civilian, combat, and tactical air- craft, as well as vehicles, and vessels that serve innumerable ground, sea, air, and outer space opera- tions. For example, some drones can remain aloft for hours and days at a time (i.e., high-altitude or medium-altitude long-endurance (HALEs and MALEs)).20 Such capabilities incentivized Facebook in 2016 to launch Aquila, a solar-powered HALE designed to beam the Internet to remote parts of the planet.21 Given these civilian and commercial UAS applications, companies have historically assiduously resisted the word “drone,” which connotes military machines with names like “Predator” and “Reaper.” Notwithstanding its military origins, the term “drone” persists and is increasingly accepted in civil- ian life. It is also regularly substituted for the more cumbersome term “unmanned aerial vehicle” or UAV. (Some UAV companies refer to their products as “con- sumer drones” to soften the military association.) In any case, both terms broadly refer to automated, autonomous, semi-automated, tethered, and option- ally piloted airplanes with no onboard pilot. Techni- cally, however, “unmanned aircraft system” (UAS) is a more comprehensive term than either “drone” or “UAV” to identify the broader network of ground- based assets and personnel that support modern unmanned flight. The UAV is but the aircraft, e.g., air- frame and power plant. The United States Geological Survey recognized this by defining an unmanned aer- ial system as an unmanned aircraft (UA) and all of the associated support equipment, control station, data links, telemetry, communications and navigation equipment, etc., necessary to operate the UA.22 The UA is the flying portion of the system, in this context, flown by a pilot via a ground control system, or auton- omously through use of an onboard computer, commu- nication links, and any additional equipment that is necessary for the UA to operate safely. 23 Under 14 C.F.R. Part 107, effective August 29, 2016,24 the FAA has updated and formalized its own definitions and terminology associated with “drones,” as follows: Small Unmanned Aircraft. An unmanned aircraft weighing less than 55 pounds on takeoff, 18 fed. AViAtion Admin., Unmanned Aircraft Operations in the National Airspace System, Docket No. FAA-2006- 25714, https://www.faa.gov/uas/media/frnotice_uas.pdf. 19 E.g., Bart Jansen, FAA: Drone Registration Eclipses that of Regular Planes, USAtodAy, (Feb. 8, 2016), http:// www.wfaa.com/news/nation/faa-drone-registration- eclipses-that-of-regular-planes/37005405. 20 fed. AViAtion Admin., fAA AerospACe foreCAst: fisCAl yeArs 2010–2030, at 48, http://www.flytheline.com/FAA 2010%20Forecast%20Doc.pdf. 21 E.g., Mark Zuckerberg, The technology behind Aquila, fACebook, (July 21, 2016), https://www.facebook.com/ notes/mark-zuckerberg/the-technology-behind- aquila/10153916136506634/. 22 E.g., united stAtes geologiCAl surVey, National Unmanned Aircraft Systems (UAS) Project Office, https:// uas.usgs.gov/. 23 U.S. dep’t of interior, What is an Unmanned Aerial System (UAS)?, https://www2.usgs.gov/faq/categories/ 10623/4283. The term “unmanned aircraft system” has also been defined as an unmanned aircraft and its associ- ated elements related to safe operations, which may include control stations (ground-, ship-, or air-based), con- trol links, support equipment, payloads, Flight Termina- tion System (FTS), and launch/recovery equipment. This is not a regulatory definition in 14 C.F.R. pt. 107, but was set out in fed. AViAtion Admin., unmAnned AirCrAft operAtions in the nAtionAl AirspACe system (NAS), N JO 8900.227, ¶ 42 (cancelled July 30, 2014). 24 See also fed. AViAtion Admin., Advisory Circular 107-2, Small Unmanned Aircraft Systems, (June 21, 2016), https://www.faa.gov/documentLibrary/media/Advisory_ Circular/AC_107-2.pdf.

9including everything that is onboard or otherwise attached to the aircraft.25 Small Unmanned Aircraft System (Small UAS). A small unmanned aircraft and its associ- ated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.26 Unmanned Aircraft (UA). An aircraft oper- ated without the possibility of direct human inter- vention from within or on the aircraft.27 Finally, while the terms “UAV,” “UAS,” and “drone” prevail popularly and are understood as synonyms in common discourse in the United States, modern unmanned airplanes are interchangeably referred to by an alphabet soup of acronyms around the world—“remotely piloted aircraft systems” (RPAS), “remotely controlled airplanes” (RCs), “pilotless air- craft” (PAs), and “optionally piloted aircraft” (OPA).28 A “drone” may also sometimes be referred to as a “model” or “hobby or recreational airplane,” but care must be taken with such distinction. “Model” and “UAS” are operationally and legally distinguishable as detailed in the next section. B. Operators: Public and Civil (Commercial and Model) The FAA recognizes two types of UAS operations: public and civil (of which commercial and model, also referred to as hobby or recreational, are consid- ered subsets). First, many drones are flown as public aircraft. In this context, a public aircraft is, as the term sug- gests, one that is operated by a governmental body for a governmental function as determined and lim- ited by statute and FAA legal interpretation. The law technically reads that “[a] public aircraft is an aircraft used only for the United States government or owned and operated by the government of a state, the District of Columbia, or a territory or possession of the U. S. or a political subdivision.” 29 Operators of public aircraft include the Department of Defense, 27 14 C.F.R. § 107.3. The FAA has clarified that 14 C.F.R. pt. 107 does not apply to operations governed by part 101, which includes the operation of model aircraft, moored bal- loons, kites, amateur rockets, and unmanned free balloons. Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,085 (June 28, 2016). Mean- while, “Tethered/Moored UAS” has been defined as an unmanned aircraft that is attached to a permanently fixed point (moored) or to a mobile platform (i.e., boat, trailer, auto or other mobile asset: tethered) which allows the UA to operate in a confined altitude, radius or both at the direc- tion of the pilot in command. Id. This is not a regulatory definition in 14 C.F.R. pt. 107, but rather was set out in fed. AViAtion Admin., unmAnned AirCrAft operAtions in the nAtionAl AirspACe system (NAS), N JO 7210.891, ¶ 14(v) (cancelled Nov. 24, 2016). 28 This report follows this convention, interchangeably referring to UAV, UAS, sUAS, small unmanned aircraft, unmanned aircraft, and drone to signify an aircraft oper- ated without the possibility of direct human intervention from within or on the aircraft as set out in 14 C.F.R. § 107.3. 29 49 U.S.C. § 40102. 25 14 C.F.R. § 107.3. (Emphasis added.) See also Pub. L. No. 112-95 (2012), § 331(6), https://www.faa.gov/uas/ media/Sec_331_336_UAS.pdf (“The term ‘small unmanned aircraft’ means an unmanned aircraft weighing less than 55 pounds.”). In 2015, the FAA initially proposed to define “small unmanned aircraft” as “an unmanned aircraft weighing less than 55 pounds including everything that is on board the aircraft.” Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,085 (June 28, 2016). The FAA noted that Public Law 112-95, section 331(6) defines a small unmanned aircraft as “an unmanned aircraft weighing less than 55 pounds.” Id. However, this statutory definition did not specify whether the 55-pound weight limit refers to the total weight of the aircraft at the time of takeoff (which would encompass the weight of the aircraft and any payload on board) or simply the weight of an empty aircraft. Id. The FAA’s 2015 Notice of Proposed Rulemaking thus pre- sented a definition of small unmanned aircraft that used total takeoff weight because heavier aircraft generally pose greater amounts of public risk in the event of an accident, because they can do more damage to people and property on the ground. Id. In evaluating this type of risk for a small UAS, it is the total mass of the small unmanned aircraft that is important; the manner in which that mass is achieved is irrelevant, according to the FAA. Id. In other words, a 50-pound unmanned aircraft carrying 30 pounds of payload does not pose a smaller risk than an 80-pound unmanned aircraft that is not carrying any payload. Id. As such, the FAA’s final drone rule—14 C.F.R. pt. 107—retained the pro- posed inclusion of everything onboard the aircraft in the 55-pound weight limit of a small unmanned aircraft. Id. Fur- ther, the FAA noted that Part 107 and its initial definition of “small unmanned aircraft” was merely one step of UAS inte- gration into the national airspace system (NAS). Id. The FAA anticipates that future rulemakings will integrate larger UAS into the NAS and thus enable additional com- mercial opportunities. Id. 26 14 C.F.R. § 107.3. The 2015 FAA Notice of Proposed Rulemaking offered a definition of “small unmanned aircraft system” as “a small unmanned aircraft and its associated elements (including communication links and the compo- nents that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.” Opera- tion and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,086 (June 28, 2016). The proposal explained that this definition would be similar to the statu- tory definition of UAS specified in Public Law 112-95, section 331(9), except that it does not include a “pilot in command” reference that appears in the statute. Id. The FAA did not include the “pilot in command” reference in the proposed definition of small UAS because that position did not exist under the proposal. Id.

10 Department of Justice, Department of Homeland Security, the National Aeronautics and Space Admin- istration, the National Oceanic and Atmospheric Administration, and qualifying universities. That said, public aircraft operations are not exclusively those of the federal government as they may include the fleet of aircraft used only by state and local agencies and governments, including the District of Columbia, or United Sates territories and possessions, and related political subdivisions as determined by the attorney general of the state, for governmental function.30 Moreover, it is possible for the same air- craft to be a public aircraft for one mission and a civil aircraft for a different mission.31 In any case, these terms are defined in Title 49 of the United States Code and Title 14 of the Code of Federal Regulations, though the FAA has also defined the term public air- craft in its guidance documents, as follows: 32 Public Aircraft. An aircraft operated by a gov- ernmental entity (including Federal, State, or local governments, and the U.S. Department of Defense (DOD) and its military branches) for certain pur- poses as described in 49 U.S.C. §§ 40102(a)(41) and 40125. Public aircraft status is determined on an operation by operation basis. Public Operator. An operator that is classified as government and/or otherwise qualifies for pub- lic aircraft operation under 49 U.S.C. §§ 40102(a) (41) and 40125. Not all flights by a public aircraft operator qualify as a public aircraft operation un- der the statute. Public aircraft operation status is not automatic for flights conducted by a govern- ment entity or a contractor to a government entity. Next, “‘civil aircraft’ means an aircraft except a public aircraft.” 33 The concept of civil aircraft further extends to aircraft of foreign registry that are not part of the armed forces of a foreign nation, as well as to U.S.-registered aircraft when such aircraft are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States.34 In fact, the term civil aircraft broadly encompasses the majority of all aircraft operations to, from, inside, and outside the United States. This includes commercial or “for hire” flight by private commercial operators such as airlines as well as private non-commercial general aviation operators. To the extent a drone is an air- craft—and the NTSB has concluded that a drone is an aircraft 35—a drone owned and operated by Amazon or Facebook and a drone operated by a private citizen for non-government purposes are both civil aircraft under the law, whereas a drone owned and/or operated by a state university can be a public aircraft. Finally, according to the FAA, model aircraft are a category of civil aircraft carved out from certain regu- latory requirements. Aviation amateurs and enthusi- asts worldwide enjoy designing, assembling, and flying remote- and radio-controlled (RC) airplane models for a variety of purposes, including education, leisure, and competitive sport racing. These model aircraft—also termed hobby or recreational aircraft— mimic full-scale aircraft and helicopters in appear- ance and functionality. Models can be inexpensive, ranging from “ready-to-fly,” electric-motor, and “toy”- class airplanes up to more substantial airframes with balsa wood or Styrofoam bodies available for pur- chase off-the-shelf or online. At the other end of the RC spectrum are sophisticated and expensive (e.g., $20,000) carbon fiber helicopters and aircraft outfit- ted with retractable landing gear and dynamic flight control surfaces, together with first person view elec- tronics (i.e., FPV cameras), autopilot, and stabiliza- tion systems for flight at speeds exceeding 200 miles per hour under the power of miniature internal combustion or jet engines. One of the largest remote controlled airplanes is a 16-foot-long mock-up of com- mercial jumbo-airliner, the Airbus A380, with a 2.6-gallon fuel tank and 17-foot wingspan.36 Signifi- cantly, as a matter of law, an aircraft is treated as a model aircraft only if it meets the definition for such aircraft and is flown strictly for hobby or recreational use. As such, the FAA has formally defined hobby air- craft as model aircraft used for sport and recreation only, where a model aircraft is an unmanned aircraft that is: (i) capable of sustained flight in the atmo- sphere, (ii) flown within visual line of sight (VLOS) of the person operating the aircraft, and (iii) flown exclusively for hobby or recreational purposes.37 30 Id. at § 40102(a)(41)(C). 31 Distinguishing civil aircraft from public aircraft has presented interpretive challenges for courts, mostly because public aircraft status centers on the operation or use of an aircraft rather than the type of aircraft itself. In United States v. Aero Spacelines, Inc., 361 F.2d 916 (9th Cir. 1966), for example, a federal court held that the legal char- acter of a civil or public aircraft changed (from public to civil) where an airplane operated as a public aircraft for one mission was subsequently operated as a civil aircraft in an immediately subsequent mission. 32 fed. AViAtion Admin., Flight Standards Information Management System, vol. 16, Unmanned Aircraft Systems, ch. 1, § 2, ¶ 16-1-2-1. 33 49 U.S.C. § 40102(a)(16). 34 14 C.F.R. § 375.1. 35 See note 16, supra. 36 Daniel Terdiman, Incredible Remote-Control A380 Takes to the Skies, CNET, (Nov. 27, 2013), http://www.cnet. com/news/incredible-remote-control-a380-takes-to-the- skies/. 37 fed. AViAtion Admin., Flight Standards Information Management System, vol. 16, Unmanned Aircraft Systems, ch. 1, § 2, ¶ 16-1-2-1. The definition for model aircraft is in section 336(c) of the FMRA and 14 C.F.R. § 101.5 while the requirements for their operation are in section 336(a) of the FMRA and 14. C.F.R. § 101.41.

11 C. Airspace Defined The practical and legal controversy most associ- ated with UAS operations is about where drones fit into the existing NAS and at altitudes below the NAS. One scholar has called for exclusionary rules— new, technology-agnostic laws that give landowners definite rights to exclude drones (or anything else) from the airspace directly above their land, up to the navigable space line where the public highway for air travel begins.38 Amazon, meanwhile, has pro- posed segmenting and reserving airspace below 500 feet for commercial drone operations.39 These recommendations aside, early FAA policy for UAV operations disallowed any person from oper- ating a UAV, including tethered UAVs, outside of active restricted areas. FAA policy also disallowed UAS operations in prohibited or warning areas in the NAS without specific authority, with the exception of a model aircraft flown for hobby or recreational purposes or an optionally piloted aircraft that has a pilot on board.40 Creation of UAS-specific airspace went beyond the scope of the FAA’s new drone regula- tion—14 C.F.R. Part 107—because the Notice of Proposed Rulemaking to the final rule did not pro- pose to create any new airspace classifications or reclassify existing airspace.41 In any case, under- standing where drones may lawfully fly in the future requires an understanding of how the airspace is cur- rently configured. This section details how regulators have organized the nation’s airspace. The term “airspace” is not defined in the Federal Aviation Regulations (FARs). Rather, aviation authorities speak in terms of regulatory and non- regulatory airspace with respect to NAS. Within these two categories of airspace—regulatory and non-regulatory—are four types of airspace: con- trolled, uncontrolled, special use, and other airspace, illustrated as follows in Figure 2: 42 “Uncontrolled airspace” is known by that term or as “Class G airspace” and represents the portion of the airspace that has not been designated as Class A, B, C, D, or E, and extends from the surface to the base of the overlying Class E airspace.43 “Controlled airspace,” in contrast, is “an airspace of a defined dimension within which air traffic control service is provided to…flights in accordance with the airspace classification.” 44 Although ATC has no authority or responsibility to control air traffic, pilots learn that there are visual flight rules (VFR) that apply in this airspace.45 Controlled airspace consists of several “classes” of airspace, as follows:46 • Class A Airspace. Class A airspace is gener- ally the airspace from 18,000 feet mean sea level (MSL) up to and including flight level (FL) 60,000 feet MSL, including the airspace overlying the wa- ters within 12 nautical miles (NM) of the coast of the 48 contiguous states and Alaska. Unless other- wise authorized, all operation in Class A airspace is conducted under instrument flight rules (IFR). • Class B Airspace. Class B airspace is general- ly airspace from the surface to 10,000 feet MSL sur- rounding the nation’s busiest airports in terms of 40 See, e.g., fed. AViAtion Admin., unmAnned AirCrAft operAtions in the nAtionAl AirspACe system (NAS), N JO 7210.889, ¶ 8, https://www.faa.gov/documentLibrary/media/ Notice/N_JO_7210.889_Unmanned_Aircraft_Operations_ in_the_NAS.pdf (cancelled Oct. 26, 2016). 41 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,119 (June 28, 2016). 42 fed. AViAtion Admin., pilot’s hAndbook of AeronAuti- CAl knoWledge, ch. 14 (AirspACe). 43 Id. at ch. 14-3. 44 Id. at ch. 14-2. 45 Id. at ch. 14-3. 46 Id. at ch. 14-2. 38 See, e.g., Troy A. Rule, Airspace in the Age of Drones, 95 B.U. L. REV. 155 (2015). See also Ben Poper, Amazon Pro- vides New Details on Its Plan for a Drone Superhighway in the Sky, the Verge, (July 28, 2015), http://www.theverge.com/ 2015/7/28/9058211/amazon-new-details-plan-delivery-drone. 39 Juliet Van Wagenen, Amazon Proposes New ATM Model for Commercial UAS Ops, AViAtion todAy, (July 30, 2015), http://www.aviationtoday.com/av/topstories/Amazon- Proposes-New-ATM-Model-for-Commercial-UAS- Ops_85676.html#.VyemqfkrJhF. Additionally, two authors recently suggested that the FAA should consider creating a new “Class H” category of airspace within cities: A federal-state partnership, modeled after the oper- ation of local airports, would resolve these jurisdic- tional problems. The FAA should consider creating a new “Class H” category of airspace within cities. This regulated airspace would be bounded by a 400-foot AGL ceiling within city limits. This class of airspace would allow the FAA to maintain its aviation jurisdic- tion, while delegating responsibility for managing day- to-day UAS activities to major cities. Setting the boundaries of Class H airspace is rela- tively easy in cities distant from any major airport. Where the city limits include an airport, or are quite near one, the envelope of Class H airspace would be reduced to avoid impinging on airport airspace (Classes B, C, or D). One way to set these boundaries would be to limit Class H airspace from extending into the lower limits of those airspace classes (generally surface to 1,200 feet). However, that would be fairly restrictive in the prime urban delivery areas (three to five miles radi- ally from commercial airports). The creation of Class H airspace would allow the FAA to leverage its expertise by maintaining jurisdiction over UAS aircraft and flight rules while recognizing the role of local aviation, land use, public works, police, and fire agencies. These jurisdictions already operate the nation’s airports, marine ports, and harbors and respond to local aviation, legal, and medical emergencies. Ernest C. Brown & John A. Jarrell, Local Management of Small UAS Traffic: A Path to Efficient Drone Opera- tions, 29 No. 4 Air & spACe lAW. 9 (2016).

12 airport operations or passenger enplanements. The configuration of each Class B airspace area is indi- vidually tailored, consists of a surface area and two or more layers (some Class B airspace areas resem- ble upside-down wedding cakes), and is designed to contain all published instrument procedures once an aircraft enters the airspace. An ATC clearance is required for all aircraft to operate in the area, and all aircraft that are so cleared receive separa- tion services within the airspace. • Class C Airspace. Class C airspace is gener- ally airspace from the surface to 4,000 feet above the airport elevation (charted in MSL) surround- ing those airports that have an operational control tower, are serviced by a radar approach control, and have a certain number of IFR operations or passen- ger enplanements. Although the configuration of each Class C area is individually tailored, the air- space usually consists of a surface area with a five NM radius, an outer circle with a ten NM radius that extends from 1,200 feet to 4,000 feet above the airport elevation, and an outer area. Each aircraft must establish two-way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communications while within the airspace. • Class D Airspace. Class D airspace is gener- ally airspace from the surface to 2,500 feet above the airport elevation (charted in MSL) surround- ing those airports that have an operational control tower. The configuration of each Class D airspace area is individually tailored and when instrument procedures are published, the airspace is normally designed to contain the procedures. Arrival exten- sions for instrument approach procedures (IAPs) may be Class D or Class E airspace. Unless other- wise authorized, each aircraft must establish two- way radio communications with the ATC facility providing air traffic services prior to entering the airspace and thereafter maintain those communica- tions while in the airspace. • Class E Airspace. If the airspace is not Class A, B, C, or D, and is controlled airspace, then it is Class E airspace. Class E airspace extends upward from either the surface or a designated altitude to the overlying or adjacent controlled airspace. When designated as a surface area, the airspace is config- ured to contain all instrument procedures. Also in this class are federal airways, airspace beginning at either 700 or 1,200 feet above ground level (AGL) used to transition to and from the terminal or en route environment, and en route domestic and off- shore airspace areas designated below 18,000 feet MSL. Unless designated at a lower altitude, Class E airspace begins at 14,500 MSL over the United States, including that airspace overlying the wa- ters within 12 NM of the coast of the 48 contiguous states and Alaska, up to but not including 18,000 feet MSL, and the airspace above FL 60,000. Apart from controlled and uncontrolled airspace, the FAA further recognizes six types of “special use airspace.” Special use airspace or special area of operation (SAO) is the designation for airspace in which certain activities must be confined, or where limitations may be imposed on aircraft operations that are not part of those activities.47 Special use airspace usually consists of prohibited areas,48 47 Id. at ch. 14-3. 48 Id. (“Prohibited areas contain airspace of defined dimensions within which the flight of aircraft is prohib- ited. Such areas are established for security or other rea- sons associated with the national welfare… Examples of prohibited areas include Camp David and the National Mall in Washington, D.C., where the White House and the Congressional buildings are located.”). Figure 2. FAA Airspace Classification—National Airspace System