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

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56 VIII. BEST PRACTICES While UAS are recognized as a potential tool that could benefit airfield management and airport opera- tions (as detailed in Part VII (“UAS and Airports,” supra)), mistrust among the broad airport community persists about drones as an unwanted externality—as an outside threat with which airports must cope. But, taking ownership of UAS legal issues and proactively influencing UAS policymaking is a better approach according to interviews and survey results of airport sponsors, owners, operators, managers, as well as of UAS manufacturers, operators, and insurers. Over and again, airport managers and sponsors, together with the regulators and legal practitioners serving airport communities around the nation, note that “ninety-nine percent of people want to comply,” but that, as detailed in the following sections, education, community engage- ment, and insurance are critical tools for airports of every kind to manage the implications of an evolving legal and regulatory framework with respect to UAS. A. Education and Engagement As one aviation consultant said, four types of UAS operators exist: (1) knowledgeable recreational flyers, (2) clueless recreational flyers, (3) compliant commer- cial operators, and (4) nefarious operators.471 Presum- ably, informed and law-abiding aviators will take responsibility for their own conduct. With respect to ignorant or unlawful UAS operations flying over, near, at, and around airports, taking precautions now to avoid accidents or incidents later is essential con- sidering the FAA’s prediction of 7 million drone own- ers and users in just 3 years and the existence of over 19,000 Part 139 airports in the United States. Given the unprecedented opportunities and threats UAS operators and flights pose, however, and considering the unfinished and incremental work of UAS regula- tors, airport sponsors and their legal counsel must be creative in developing safety policies for any and every type of UAS operator. Traditional enforcement actions against careless, reckless, or criminal operators and operations, while important, are and will be insufficient. At least one general aviation airport manager had the opinion that, “I have no right to decline UAS operations at the approach-end of a runway. I have to give way. When the [drone operator is] bad, I advise flight standards. Which is an idle threat because they only have 3 people there who have responsibility for an area the size of West Virginia and some users are very well aware of it.” 472 Further lawmaking, more- over, while necessary, is also of limited utility as That a respondent took the time to type out “no com- ment” is significant. It may reflect the understanding that, for now, anti-drone and counter-drone technolo- gies are categorically illegal under various provisions of Title 18 of the United States Code that bar federal agencies and private entities alike from jamming, hacking, or disarming the radio signals needed by UAS. Indeed, equipment such as the SkyTracker manufac- tured by CACI may run afoul of electronic surveillance laws if deployed by a private person or entity.467 To emphasize that assessments of anti-drone tech- nology by UAS detection manufacturers be carried out through Cooperative Research and Development Agreements and that other activities may present sig- nificant risks, the FAA’s Office of Airports Safety and Standards sent an open letter to all airport sponsors on October 26, 2016. Prompted by a live counter-drone demonstration by a company that failed to coordinate with the airport authority, the letter cautioned: “[i]t is important that federally obligated airports under- stand that the FAA has not authorized any UAS detection or counter measure assessments at any air- ports other than those participating in the FAA’s UAS program…and airports allowing such evaluations could be in violation of their grant assurances.” 468 Most recently, Congress passed bipartisan legisla- tion in July 2016 entitled the FAA Extension, Safety, and Security Act of 2016 (FESSA).469 Section 2206 of the law relates to a pilot project for airport safety and airspace hazard mitigation. It obligates the FAA to establish a pilot program for airspace hazard mitiga- tion at airports and other critical infrastructure using unmanned aircraft detection systems. More than $6 million was authorized (but not yet appropriated) for the purpose of ensuring that technologies that are developed, tested, or deployed by government depart- ments and agencies to mitigate threats posed by errant or hostile UAS operations do not adversely impact or interfere with safe airport operations, navi- gation, air traffic services, or the safe and efficient operation of the national airspace system.470 467 See, e.g., CACI, SkyTracker Stops Threats to Valu- able Assets and National Airspace, http://www.caci.com/ Skytracker/. 468 fed. AViAtion Admin., Letter of Oct. 16, 2016 to Airport Sponsors, https://www.faa.gov/airports/special_ programs/uas_airports/media/UAS-Counter-Measure- Testing-letter.pdf. See Appendix B.5. Interestingly, there has been no regulatory activity in the drone defense area, and as it stands, various provisions of 18 U.S.C. and other federal statutes bar counter-measure technology (i.e., jam- ming and hacking) as a matter of law. 469 See Part III.C, supra. 470 Id. 471 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 472 Id.

57 • Our website has a link for the requirements to operate within 5 miles of the airport. • We have hosted “media days” to inform the general public and have also offered to make presentations at various asso- ciation meetings - thus far we have presented to the Realtors Association, the Contractors Association, Risk Manager’s Group and the local Emergency Response organizations. Respondents also acknowledged that much work is unfinished and/or underway: 475 • Moving towards a more formal outreach program in the upcoming year. • We send out the FAA materials and distribute as we are able. • In process of developing outreach now. • We are developing our outreach program and should have it in place by the end of [the year]. Supporting the outreach and programming of air- ports and their legal counsel to raise public awareness about drones is a significant body of literature that exists across different media platforms (e.g., tradi- tional hard copy press releases and safety brochures, e-mail list serves, Twitter, Facebook posts, YouTube videos, etc.). For example, a key resource is the FAA’s “Know Before You Fly” campaign (see Figure 17) pro- duced in collaboration with organizations and associ- ations such as The Association for Unmanned Vehicle Systems International, the Academy of Model Aero- nautics, the Small UAV Coalition, and airports. existing rules can be genuinely confusing for even the best-intentioned remote pilot in command. For example, two different regulatory processes exist for flight in controlled airspace. As such, a UAS operator who lives in Class D airspace need only call the nearby airport if flying recreationally, yet must go through a web-based portal to obtain approval for flight under Part 107. In fact, the same drone opera- tor who is a hobbyist by day might become a Part 107 in the evening and a Section 333 exemptee at other times. Given this state of affairs—a vast network of manned air traffic operating to and from public and private airports in each state across the nation; a concededly under-staffed and under-resourced FAA UAS team; an unfinished, incremental, and some- times unclear regulatory framework for UAS opera- tors; and a prolonged (and perhaps incompatible) rulemaking processes at the local, state, and federal levels—proactively engaging UAS stakeholders is critical for airports and their legal counsel. When asked how best to avoid accidents and inci- dents over, near, at, and around airports involving drones, industry stakeholders consistently coalesce around the themes of airport initiative, user engage- ment, and risk mitigation and safety management through education. The Golden Triangle Regional Air- port in Columbus, Mississippi, for example, held a free “Drone 101” seminar.473 Other airports have prepared white papers, initiated dialogue with realtors and emergency responders operating or intending to fly UAS, and/or conducted media days. Other airport sponsors have developed good relationships with model aircraft clubs, including by becoming a member of these organizations and demonstrating solidarity or contracting with them with respect to UAS operations (see Appendix F). As learned in a 2016–2017 poll of members of the AAAE, airports have taken steps to provide information to their tenants, users, and opera- tors, as well as the residents, businesses, academic, and newsgathering communities around their respective airports about the dos and don’ts of UAS activities: 474 • We reach out to groups to get the drone word out. Promi- nent on our website. PR people contact media. • We have information on our website, as well as a public outreach program to communicate. The Operations Supervi- sor manages a Facebook page for drones around the valley. • We hold “Drone 101” seminars every 6 months with great attendance. We also give presentations at local service clubs and also at the local universities. • Significant detail on the airport website and links to FAA websites for drone operators. 473 See, e.g., Jan Swoope, Drones 101: So You Want to Fly a Drone. What Next?, the dispAtCh, (Sept. 24, 2016), http:// www.cdispatch.com/lifestyles/article.asp?aid=53073. 474 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 475 Id. Figure 17. Private-Public UAS Educational Flyer The FAA, too, has been assertive, attending confer- ences and using social media to reach the greatest number of people and organizations interested or impacted by UAS operations in the airspace over, near, at, and around critical infrastructures such as airports. In all, community engagement and UAS edu- cation positively distinguish those airports best pre- pared for the exponential increase in drone ownership and use from those airports lagging in this regard.

58 and property damage arising from UAS operation by requiring UAS operators to obtain insurance. But, it does not.478 In fact, although the FAA has tried to deter care- less or reckless UAV operations through cease-and- desist letters, fines, and other regulatory tools, its UAS rulemaking does not include any provision regarding insurance for drone operators. The FAA specifically rejected having jurisdiction to mandate UAS insurance in Part 107: 479 This rule will not include a liability insurance requirement. Approximately 30 commenters, including NAAA, Property Drone Consortium, and Northrop Grumman Corporation, supported the inclusion of a liability insurance requirement in the final rule. These comments argued that: (1) Other countries require liability insurance for small UAS opera- tions; (2) liability insurance would incentivize safe opera- tions and encourage operators to keep pace with technological developments; and (3) small UAS operations are analogous to automobile operations, which require liability insurance. This rulemaking is being jointly conducted by the FAA and the Office of the Secretary of Transportation (OST). The FAA statutes applicable to this rulemaking do not autho- rize the agency to impose mandatory insurance require- ments. Thus, the FAA does not have jurisdiction to require small UAS operations subject to this rule to obtain insur- ance coverage. Similarly, OST also lacks authority to impose liability insur- ance requirements on small UAS operations covered by this rule because those operations do not rise to the level of air transportation. However, the Department emphasizes that remote pilots who offer these types of services are responsible for the operation, and could be held liable for any injury or damage that could result. Prudent remote pilots should eval- uate their existing insurance policies to determine whether they have appropriate coverage for these operations. In contrast, at the local level, some governments require insurance incident to UAS operations. For example, pursuant to an ordinance created in Miami- Dade County (see Part V.B, supra), prior to the final- ization of an application for UAS flight, the applicant/ operator must furnish to the city a signed statement, approved by the city attorney, that the applicant/ operator will hold-harmless, indemnify and defend the city, its elected officials, officers, and employees for any claims for damages to property or injury to persons which may be occasioned by any activity car- ried on under the terms of the application.480 The applicant must also furnish and maintain such public liability and property damage insurance to B. Safety, Insurance, and Risk Mitigation For all their celebrated novelty, UAS operations present many of the same safety risks and worries on the ground and in the NAS as do the activities of traditional aircraft, vehicles, and conveyances— collisions with other traffic, personal injury, property damage, and terrorism. In fact, many UAVs weighing more than 55 lbs. require a runway and ATC, inter- facing with airports and the surrounding environ- ment more typically than do small- and micro-drones weighing less than 55 lbs. and 0.55 lbs., respectively.476 Traditional tort law applicable to manned operations can easily be extended to incidents or accidents involving these “macro” unmanned airplanes. Simi- larly, even though some new laws must be created to adapt to advances in small- and micro- unmanned aviation, eighteenth century tort law is also surpris- ingly elastic and capable of adjudicating personal injury and property damages claims arising from UAS torts as it would fashion remedies arising from civil liability associated with the operation of manned airplanes and rotorcraft. The parties (e.g., owners, operators, lessors, service providers, manufacturers, distributors), jurisdictional issues (e.g., federal or state), substantive law and standards (e.g. product liability, negligence, or strict liability), and imposition of damages and apportionment of liability (e.g., joint and several) are currently the same for negligence suits involving manned or unmanned aviation. What is new and unprecedented is the capacity and degree to which UAS operators can create nui- sances, invade the privacy rights of others, and tres- pass at low altitudes. As discussed in Part VI, supra, the common law is only just developing in these sub- ject areas as applied to negligent and tortious use of UAS operations and it is unclear whether federal law ultimately will preempt and prevail over any state UAS nuisance, privacy, and trespass laws. In the meantime, the risk of “self-help”—where individuals attempt to enforce their (actual or perceived) rights without legal authority—is real, as when William Meredith, the self-proclaimed “drone slayer,” shot down a drone hovering over his Kentucky home.477 Until a body of UAS-specific tort law develops, U.S. law might encourage responsible flying and decrease both the probability and severity of personal injury 476 The terms “launched” and “recovered” are frequently used instead of the traditional “takeoff” and “landing,” suggesting the need to standardize operational vocabu- lary if and when UAS are integrated into the national air- space system. rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 477 Andrew Blake, William Meredith, “Drone Slayer,” Seeks to Dismiss Federal Lawsuit, WAsh. times, (Mar. 8, 2016), http://www.washingtontimes.com/news/2016/mar/8/ william-merideth-drone-slayer-seeks-to-dismiss-fed/. 478 Canada requires drone operators there to carry at least $100,000 of liability insurance regardless of the weight of the drone. 479 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,183 (June 28, 2016). 480 miAmi, flA., Code of ordinAnCes, Order No. 13581, § 37-12(g).