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20 infrastructure, such as energy production, transmis- sion, and distribution facilities; (2) oil refineries and chemical facilities; (3) amusement parks; and (4) other locations that warrant such restrictions. IV. THE NATIONAL AIRSPACE SYSTEM In April 2014, the United Kingdomâs Civil Aviation Authority prosecuted a man who flew his drone into restricted airspace over a nuclear submarine facil- ity; 107 two years later, a British Airways flight report- edly collided with a drone in what might have been the first such incident involving a major airline.108 Earlier, in the United States, a drone whizzed above tennis players at the U.S. Open in New York before slamming into an empty seating area.109 And, the United States Department of Transportation imposed a $1.9 million civil penalty against a company for con- ducting 65 unauthorized UAV operations in some of the nationâs most congested airspace and heavily pop- ulated cities.110 By March 2016, the FAA reported receiving more than 100 drone âincidentsâ or sightings a month from pilots, citizens, and law enforcement.111 Given these eventsânot to mention the FAAâs projec- tion of 7 million drones by 2020âthe likelihood that consequential conflicts involving drones and ground-based operations may intensify is plausible. Deconflicting these anticipated unmanned operations in the NAS originally designed for manned flight presents unprecedentedâbut not irresolvableâregu- latory challenges. This section details the regulatory and legal approaches to the NAS, concluding with a discussion of existing procedures airports follow to mitigate risks associated with the flight of manned and unmanned assets in the same ecosystem. A. Judicial Approaches to Airspace Rights Allowing airplanesâmanned or unmannedâto fly requires regulators to balance airspace rights with ground rights.112 The nineteenth century case Guille v. Swan was one of the first cases evaluating the practi- cal and legal relationship between activities in the air and on the ground.113 There, the operator of an air bal- loon crash-landed into a private garden in New York. âWhen the balloon descended [the balloonist called for assistance and] more than two hundred persons broke into [the] garden through the fences, and came onto the premises [to his rescue], beating down [the gar- denâs] vegetables and flowers.â 114 The landowner sued for damages and won, convincing the court that the balloonist was liable because the damages caused by his trespass were foreseeable as a matter of law: 115 107 E.g., Â£4,000 Fine for Man Who Crashed Model Plane Near Nuclear Shipyard for âIllegal Flying of Unmanned Aircraft,â dAilymAil.Com (Apr. 2, 2014), http://www.daily mail.co.uk/sciencetech/article-2595245/First-UK- prosecution-dangerous-driving-DRONE-Man-fined- 800-illegal-flying-unmanned-aircraft.html. 108 See Tim Hume & Richard Allen Greene, Investigations Launched after Suspected Drone Strikes Passenger Jet in London, CNN (Apr. 18, 2016), http://www.cnn.com/ 2016/04/17/europe/london-heathrow-drone-strikes-plane/. 109 See Julia Talanova, Drone Slams into Seating Area at U.S. Open; Teacher Arrested, CNN, (Sept. 5, 2015), http:// www.cnn.com/2015/09/04/us/us-open-tennis-drone-arrest/. 110 The FAA reached a comprehensive settlement agree- ment with SkyPan in January 2017. Under the terms of the agreement, SkyPan will pay a $200,000 civil penalty. The company also agreed to pay an additional $150,000 if it violates Federal Aviation Regulations in the next year, and $150,000 more if it fails to comply with the terms of the settlement agreement. fed. AViAtion Admin., Press Release â FAA and Skypan International, Inc., Reach Agreement on Unmanned Aircraft Enforcement Cases, (Jan. 17, 2017), https://www.faa.gov/news/press_releases/ news_story.cfm?newsId=21374. 111 See also fed. AViAtion Admin., FAA Releases Updated Drone Sighting Reports, Feb. 23, 2017 (âReports of possible drone sightings to FAA air traffic facilities continued to increase during FY 2016. There were 1,274 such reports from February through September last year, compared with 874 for the same period in 2015. Although the data contain several reports of pilots claiming drone strikes on their air- craft, to date the FAA has not verified any collision between a civil aircraft and a civil drone. Every investigation has found the reported collisions were either birds, impact with other items such as wires and posts, or structural failure not related to colliding with an unmanned aircraft.â). 112 See also Part VI.B, infra (âTrespass and Local Law Enforcement UAS Useâ). 113 Guille v. Swan, 19 Johns. 381 (N.Y. Sup. Ct. 1822). 114 Id. 115 Id. More than a century after it was announced, the rule expressed in Guille, that the doctrine of strict liability controls legal disputes concerning injuries caused by air- craft to persons and things on land, was reformulated: If physical harm to land or to persons or chattels on the ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft, (a) the operator of the aircraft is subject to liability for the harm, even though he has exercised the utmost care to prevent it; and (b) the owner of the aircraft is subject to similar lia- bility if he has authorized or permitted the operation. restAtement (seCond) of torts Â§ 520A (1977) (âGround Damage from Aircraftâ). Some courts have applied a com- parative negligence standard to the issue of whether own- ers and operators flying aircraft should be strictly liability for ground damage caused by operation of aircraft. E.g., Crosby v. Cox Aircraft Co. of Washington, 746 P.2d 1198 (Wash. 1987). Compare Rochester Gas & Elec. Corp. v. Dun- lop, 266 N.Y.S. 469 (N.Y. Co. Ct. 1933) (finding strict liability for trespass and property damaged caused by airplane crash), with Crist v. Civil Air Patrol, 278 N.Y.S.2d 430, 434 (N.Y. App. Div. 1967) (declining application of strict liability or doctrine of res ipsa loquitur in absence of showing of intent to crash airplane: âTechnological advances and development, and the experiences of the last two decades have dissipated the universal early fears that flying was an ultra-hazardous occupation. The application of the trespass theory advanced in the Dunlop case appears to be based to some extent on a recognition of such earlier fear.â).
21 Ascending in a balloon is not an unlawful act. . .; but, it is certain, that the aeronaut has no control over its motion horizontally; he is at the sport of the winds and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordi- narily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Guille reflected an early view of aviation as an ultra- hazardous activity for which owners, operators, and manufacturers were strictly liable. But, the rights of aviators above private property remained indefinite until the mid-1940s. Until that time, the Roman doctrine of cujus est solum ejus usque ad coelomââwhoever owns the soil, it is theirs up to Heavenââcontrolled air rights. That changed when the Supreme Court of the United States decided United States v. Causby.116 There, a North Carolina farmer sued the federal government for inverse condemnation. Essentially, the landowner contended that the activities of Army and Navy airplanesâtaking off and landing at an airfield close to his barnâdeprived him of his pri- vate property rights. More specifically, heavy bomb- ers, transports, and fighter airplanes repeatedly flew at low altitudes and landed along a âpath of glideâ that was a mere 83 feet above the farmerâs property, 63 feet above his barn, and 18 feet above the highest tree on his property. He claimed that light and noise from the airplanes not only terrified his family but caused his chickens to kill themselves from fright, effectively destroying his commercial chicken farming business on his private property. The federal government argued that its airplane operations had not effected a deprivation or taking of the farmerâs property under the Constitution. Government lawyers defended the flights based on the Air Commerce Act of 1926. Under that law, Congress vested the national government with âcomplete and exclusive national sovereignty in the air space,â subject to âa public right of freedom of transit in air commerce through the navigable air space of the United States.â 117 The ânavigable air spaceâ included âairspace above the minimum safe altitudes of flight prescribed by the [Civil Aeronau- tics Boardâthe predecessor entity to the modern FAA].â Thus, according to the government, the flight of government aircraft was merely an exercise of the right of travel through the airspace within the mini- mum safe altitudes for flight established under the Air Commerce Act. Moreover, the flights could not and did not affect a taking because they occurred within the navigable airspace without any physical invasion of the farmerâs property. The government argued that the authorized flights caused only inci- dental damage, at most. The U.S. Supreme Court sided with the farmerâ but only to a point. It concluded that the airplane landings were as much an appropriation of the use of his private property as would be a more conven- tional entry upon it: 118 We would not doubt that if the United States erected an elevated railway over [the farmerâs] land at the precise alti- tude where its planes now fly, there would be a partial tak- ing, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the ownerâs full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the pur- pose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous inva- sions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface. Notably, the flights in Causby were not unauthor- ized, but allowed, and the farmerâs only remedy was monetary, in an amount that corresponded to the nature of the taking (i.e., temporary or permanent). In reaching this holding, the Supreme Court aban- doned historical notions of unlimited air rights above private property, recognizing instead a public aviga- tional easement above private property for the use of aviators: âThe flight of aircraft is lawful âunless at such a low altitude as to interfere with the then exist- ing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.ââ 119 The Causby majority reasoned that â[t]he airplane is part of the modern environment of lifeâ where ancient doctrines of airspace ownership such as ad coelom âha[d] no place in the modern world. The air is a public highwayâ¦ Were that not true, every transcontinental flight would subject the operator to countless trespass suits.â Causby thus marked a reboot of putatively fixed property law doctrines, accepting as routine the concept of machines flying in the skyâabove and through columns of airspace above privately owned parcels of land. But, at what altitude did a private property ownerâs air rights end and the navigable air space begin? 118 Id. 119 Id. 116 United States v. Causby, 328 U.S. 256 (1946). 117 Id. at 260.
22 Causby did not answer this question definitely, leaving many low-altitude airspace ownership and control issues unresolved. At the time Causby was decided, regulators had not enacted air traffic rules placing the airspace needed for takeoff and landing within the public domain. Therefore, no regulation was before the Supreme Court that prescribed any specific altitude as the minimum safe altitude or the âimmediate reaches above the land.â As such, Causby did not define a precise altitude beneath which air- craft (whether government- or privately-operated) could not fly over private propertyâan issue brought front and center by innovations in drone technology. The days when private property rights extended up to Heaven are obviously long gone, and thanks to drones, gone too are the days when sustained flight was not possible below the navigable airspace at altitudes as low as 83 or 63 or 18 feet as in Causby. Now, quadcopters and micro-drones fly and hover and loiter at any altitudeâabove farms, over resi- dential swimming pool, indoors (e.g., in the âair- spaceâ above a cocktail reception or in a classroom), or even underground (e.g., subways). While case law from the 1940s remains ambiguous as to whether these low altitudes are a part of the NAS, modern FAA regulations define the minimum safe operating altitudes for different kinds of aircraftâfixed-wing aircraft and helicopters, if not drones. Under existing regulations, excepting takeoff and landing, fixed-wing aircraft must fly at an altitude that allows operators to conduct an emergency land- ing âwithout undue hazard to persons or property on the surface.â 120 Over congested areas, aircraft must operate at least â1,000 feet above the highest obsta- cle within a horizontal radius of 2,000 feet of the air- craft.â 121 Over non-congested areas, operators must fly a minimum of â500 feet above the surface,â 122 though helicopters are allowed to fly below the mini- mum safe altitudes prescribed for fixed-wing air- craft if operated âwithout hazard to person or property on the surface.â 123 Laws and regulations detailed where drones fit into this regulatory scheme are still emerging, though several court opinions show that judicial approach to airspace operations and rights centers not so much on property rights as on privacy expectations. In fact, although current local, state, and federal laws respecting drone surveillance are unsettled,124 future UAS policies and regulations may be guided by court opinions of the last century balancing low altitude airplane operations with private property and personal dignity rights. Olmstead v. United States was one of the first cases to considerâand rejectâa shift in the nationâs property laws to accommodate high-tech innovations, for example.125 In this 1928 decision, the Supreme Court evaluated whether the federal governmentâs intercept of pri- vate telephone conversations with wiretaps attached to telephone wires on public streets violated the Fourth Amendmentâs prohibition of unreasonable government searches and seizures. Olmstead applied a traditional rule to find that the govern- ment acted lawfully: No trespass, no search. This strict property-based approach was overruled in the 1967 decision of Katz v. United States.126 There, the high court considered the constitutionality of eavesdropping devices attached to public telephone booths. â[T]he Fourth Amendment protects people, not places,â Justice Potter Stewart famously wrote, supplanting the Olmstead trespass doctrine with an analytical framework requiring courts to consider whether the subject of a search had a âreasonable expectation of privacy.â In this legal regime, proof of an actual or physical trespass was no longer neces- sary or sufficient to establish a violation of the Con- stitutionâs Fourth Amendment. Courts applied the rule announced in Katz to aerial surveillance more than twenty years later when the Supreme Court decided three important cases construing Fourth Amendment protections in the navigable airspace. First, in the 1986 decision of Dow Chemical Co. v. United States,127 a chemical company refused a request by the Environmental Protection Agency (EPA) for an onsite inspection of its plant. Elaborate security around the perimeter of the complex barred ground-level public views of the area. The EPA, instead of seeking an administrative search war- rant, employed a commercial aerial photographer using a standard precision aerial mapping camera to take photographs of the facility from various alti- tudes, all of which were within lawful navigable airspace. The chemical company learned of the sur- veillance and sued in federal district court, alleging that the EPAâs actions violated the Fourth 120 14 C.F.R. Â§ 91.119(a). 121 14 C.F.R. Â§ 91.119(b). 122 14 C.F.R. Â§ 91.119(c). 123 14 C.F.R. Â§ 91.119(d). See People v. Sabo, 185 Cal. App. 3d 845, 852 (1986) (âWhile helicopters may be oper- ated at less than minimum altitudes so long as no hazard results, it does not follow that such operation is conducted within navigable airspace. The plain meaning of the stat- utes defining navigable airspace as that airspace above specified altitudes compels the conclusion that helicopters operated below the minimum are not in navigable air- space. The helicopter hovering above the surface of the land in such fashion as not to constitute a hazard to per- sons or property is, however, lawfully operated.â). 124 See Â§ VI, infra. 125 277 U.S. 438 (1928). 126 389 U.S. 347 (1967). 127 476 U.S. 227 (1986).
23 Amendment. But, on appeal, the Supreme Court allowed the aerial photography, distinguishing between the protected immediate surroundings of a private home (âcurtilageâ) and public spaces: 128 [T]he open areas of an industrial plant complex with numer- ous plant structures spread over an area of 2,000 acres are not analogous to the âcurtilageâ of a dwelling for purposes of aerial surveillance; such an industrial complex is more com- parable to an open field and as such it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras. We hold that the taking of aerial pho- tographs of an industrial plant complex from navigable air- space is not a search prohibited by the Fourth Amendment. California v. Ciraolo, also decided in 1986, echoed the ruling in Dow that law enforcement could con- duct aerial surveillance of private property without triggering the probable cause and search warrant requirements of the Fourth Amendment.129 In Ciraolo, local police acted on an anonymous tip and flew a private fixed-wing aircraft at an altitude of 1,000 feet over a residence where they spotted a homeowner growing marijuana. They sought and obtained a search warrant based on this naked eye observation. The homeowner successfully moved to suppress the evidence adduced against him, but ultimately lost on appeal when the Supreme Court ruled that the inspection was not an unreasonable search in contravention of the Fourth Amendment. True, the overflight was of property within the âcur- tilageâ of the houseâa fence shielded the yard from observation from the street, and the occupant had a subjective expectation of privacy. But, the high court stated that such an expectation was not reasonable and not one âthat society is prepared to honor.â The Ciraolo court also reasoned that no physical trespass had occurred and the police were in a pub- lic placeâthe navigable airspaceâwhere âthey had a right to be.â Consequently, law enforcement was free to inspect the yard from that vantage point just as they would have been free to inspect the back- yard garden from the street if their view had been unobstructed. In language reminiscent of Causby, the Ciraolo court recognized both social and regula- tory acceptance of manned flight in the navigable airspace as an influential factor in its decision to allow the surveillance: 130 In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally pro- tected from being observed with the naked eye from an alti- tude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is vis- ible to the naked eye. Finally, Ciraolo was followed three years later by Florida v. Riley,131 a case that presented the issue of whether a search occurred when local police officers flew a helicopterâconsistent with aviation regula- tionsâat a mere altitude of 400 feet above a resi- dential greenhouse to observe marijuana plants through a small break in the roof. The Supreme Court of Florida initially decided that helicopter surveillance at 400 feet constituted a search for which a warrant was required. The U.S. Supreme Court disagreed, however, quoting Ciraolo for the proposition that police traveling in the public air- ways do not need to obtain a warrant âin order to observe what is visible to the naked eye.â 132 For the better part of the last century, the forego- ing court decisionsâCausby, Dow, Ciraolo, and Rileyâhave provided an important framework within which to relate constitutional and common law protections to private and public aviation opera- tions. Regulators have not definitively or uniformly extended these precedents to UAS. Consequently, today, a patchwork of drone-centered ordinances and legislation has emerged beneath the altitudes considered in these cases while last-century under- standings of trespass under Olmstead and twenti- eth century formulations of a âsubjective expectation of privacyâ under Katz are in flux. To be sure, analyz- ing twenty-first century aerial innovations with eighteenth century conceptions of property law is bound to be problematic.133 B. Federal Sovereignty and Establishment of âMinimum Safe Altitudesâ While the question of where or how to integrate UAVs into the NAS is evolving, the matter of who controls the use of the navigable airspace is estab- lished as a matter of law. The United States has sole and exclusive authority over the navigable airspace of the United States. The federal government con- trols the use of airspace pursuant to the Supremacy Clause of the Constitution as further implemented through aviation laws and regulations that preempt state and private property laws. Starting with 49 U.S.C. Â§ 40103(a), the federal government has 131 488 U.S. 445 (1989). 132 Id. at 450. 133 See Federal Lawsuit Filed Regarding Rights of Drone Operators vs. Property Owners, unmAnned AeriAl online, (Jan. 6, 2016), http://unmanned-aerial.com/federal-lawsuit- filed-against-kentucky-man-who-shot-down-uas/ (discuss- ing the first lawsuits regarding the rights of drone opera- tors versus property owners in Kentucky federal court). 128 Id. at 239. 129 476 U.S. 207 (1986). 130 Id. at 215.
24 exclusive sovereignty of the navigable airspace, stat- ing in relevant part: Sovereignty and Public Right of Transit. (1) The United States Government has exclusive sover- eignty of airspace of the United States. (2) A citizen of the United States has a public right of tran- sit through the navigable airspace. In addition to granting the United States govern- ment sole and exclusive authority over the NAS, fed- eral law also authorizes the FAA to regulate use of the national airspace. Under 49 U.S.C. Â§ 40103, the FAA has broad authority to regulate, control, and develop plans for the use of the navigable airspace and to for- mulate policy for navigable airspace.134 The FAA is specifically invested with the power to âdevelop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the effi- cient use of airspace.â 135 The FAA may modify or revoke an assignment when required in the public interest.136 The FAA is also obligated to prescribe air traffic regu- lations on the flight of aircraft, including regulations on safe altitudes.137 In all, these air traffic regulations serve several operational goals: (1) navigating, protect- ing, and identifying aircraft; (2) protecting individuals and property on the ground; (3) using the navigable airspace efficiently; and (4) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.138 Federal law further requires the FAA to establish security provisions that will encourage and permit maximum use of the navigable airspace by civil air- craft consistent with national security.139 To do so, the FAA, in consultation with the Secretary of Defense, is statutorily required to establish areas in the airspace it decides are necessary in the interest of national defense; and by regulation or order, restrict or prohibit flight of civil aircraft that the FAA cannot identify, locate, and control with avail- able facilities in those areas.140 The FARsâ14 C.F.R. Â§ 91.119âfurther provide that airmen must operate within âminimum safe altitudes.â Thus, except when necessary for takeoff or landing, no person may operate an aircraft over congested areas, which includes any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of less than 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.141 In areas other than congested areas, no person may operate an air- craft at an altitude of less than 500 feet above the surface, except over open water or sparsely popu- lated areas.142 In these cases, aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.143 Through its âUnmanned Aircraft Systems Inte- gration in the National Airspace Systemâ project, the National Aeronautics and Space Administration (NASA) is working to achieve âperformance-based routine access to all segments of the national air- space for all unmanned aircraft system classes, once all safety-related and technical barriers are over- come.â 144 The technology development project falls under the Integrated Systems Research Program office managed at NASA Headquarters by the agen- cyâs Aeronautics Research Mission Directorate, and includes NASAâs four aeronautics research centersâ Armstrong, Ames Research Center, Langley Research Center, and Glenn Research Center.145 A central part of the project is NASAâs concentration on five 134 See 49 U.S.C. Â§ 40101(d) (âPolicyâ), which provides that the FAA must consider several matters as being in the public interest: (1) assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce; (2) regulating air commerce in a way that best promotes safety and fulfills national defense require- ments; (3) encouraging and developing civil aeronautics, including new aviation technology; (4) controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both of those operations; (5) consolidating research and development for air navigation facilities and the installation and operation of those facilities; (6) devel- oping and operating a common system of air traffic control and navigation for military and civil aircraft; and (7) pro- viding assistance to law enforcement agencies in the enforcement of laws related to regulation of controlled substances, to the extent consistent with aviation safety. 135 49 U.S.C. Â§ 40103(b)(1). 136 Id. 137 Id. at Â§ 40103(b)(2). 138 Id. 139 Id. at Â§ 40103(b)(3). 140 Id. 141 14 C.F.R. Â§ 91.119(b). 142 Id. at Â§ 91.119(c). 143 Id. 144 NASA Armstrong fACt sheet: unmAnned AirCrAft systems integrAtion in the nAtionAl AirspACe system, (Feb. 28, 2014) http://www.nasa.gov/centers/armstrong/news/ FactSheets/FS-075-DFRC.html#.VRKt-vnF86B. 145 Id. (âThe project will provide critical data to such key stakeholders and customers as the Federal Aviation Admin- istration and RTCA Special Committee 203 (formerly the Radio Technical Commission for Aeronautics) by conduct- ing integrated, relevant system-level tests to adequately address safety and operational challenges of national air- space access by unmanned aircraft systems, or UAS. In the process, the project will work with other key stakeholders to define necessary deliverables and products to help enable such access.â). See also Evan Ackerman, Meet NASAâs Futuristic Drone Research Lab, IEEE speCtrum, (Sept. 30, 2013), http://spectrum.ieee.org/automaton/robotics/aerial- robots/unmanned-aerial-systems-at-nasa-dryden.
25 sub-projects or focus areas, including: (1) assurance of safe separation of unmanned aircraft from manned aircraft when flying in the NAS, (2) safety-critical command and control systems and radio frequencies to enable safe operation of UAS, (3) human factors issues for ground control stations, (4) airworthiness certification standards for UAS avionics, and (5) integrated tests and evaluation designed to deter- mine the viability of emerging UAS technology.146 C. Integrating UAS in the NAS Pursuant to the FMRA, the FAA has selected six test site operators to develop research findings and operational experiences to help ensure the safe inte- gration of UAS into the nationâs airspace as the FAA transitions to a system featuring NextGen technolo- gies and procedures.147 While the selection of the test sites alone did not allow immediate access to the NAS for civil (i.e., non-public or commercial) purposes, UAS operational data generated by the six test site opera- tors is intended to help the FAA answer key research questions such as solutions for âsense and avoid,â com- mand and control, ground control station standards and human factors, airworthiness, lost link proce- dures and the interface with the air traffic control sys- tem.148 This data also is intended to help the FAA to develop regulations and operational procedures for future civil (including commercial) use of the NAS. The impetus for creating UAS test sites originated in the FMRA, in which Congress directed the FAA to establish a test site program to integrate UAS into the NAS. In selecting the test sites, the legislation man- dated that the FAA, in consultation with NASA and the Department of Defense, consider geographic diversity, climatic diversity, location of ground infra- structure and research needs in choosing the sites.149 After soliciting public input on how to select the sites, the FAA published a Request for Comments in the Federal Register in March 2012, and in April 2012, the FAA hosted two webinars to solicit addi- tional public.150 On February 14, 2013, the FAA solicited propos- als from public entities, including state and local governments and eligible universities interested in operating the test sites. Also in February 2013, the FAA published draft privacy requirements for the test sites in the Federal Register for public com- ment. The FAA also held a webinar in April of 2013 to obtain additional public input on the test site pri- vacy requirements. And, in November 2013, the FAA published the final test site privacy requirements in the Federal Register.151 Among other requirements, test site operators must comply with federal, state, and other laws protecting an individualâs right to privacy, have publicly available privacy policies and a written plan for data use and retention, and con- duct an annual review of privacy practices that allows for public comment.152 After a 1-month selection process involving 25 pro- posals from 24 states, the FAA announced the selec- tion of its six test sites on December 30, 2013.153 The test site applications achieved âcross-country geo- graphic and climatic diversity,â according to the FAA, and assisted the agency to meet âits UAS research goals of System Safety & Data Gathering, Aircraft Certification, Command & Control Link Issues, Con- trol Station Layout & Certification, Ground & Air- borne Sense & Avoid, and Environmental Impacts...â 154 The test sites selected are as follows: 155 University of Alaska. The University of Alaska proposal contained a diverse set of test site range locations in seven cli- matic zones as well as geographic diversity with test site range 146 Id. 147 fed. AViAtion Admin., Fact Sheet â FAA UAS Test Site Program, (Dec. 30 2013), https://www.faa.gov/news/fact_ sheets/news_story.cfm?newsid=15575. See also Michael Huerta, Order, Selection of Six Unmanned Aircraft Systems Test Sites in Accordance with FAA Modernization and Reform Act of 2012, PL-112-95, (Dec. 30, 2013), https://www.faa.gov/ uas/media/Order_Selecting_Six_UAS_Test_Sites.pdf. 148 fed. AViAtion Admin., Fact Sheet â FAA UAS Test Site Program, https://www.faa.gov/news/fact_sheets/news_ story.cfm?newsid=15575. See also Michael Huerta, Order, Selection of Six Unmanned Aircraft Systems Test Sites in Accordance with FAA Modernization and Reform Act of 2012, PL-112-95, (Dec. 30, 2013), https://www.faa.gov/uas/ media/Order_Selecting_Six_UAS_Test_Sites.pdf. 149 fed. AViAtion Admin., Fact Sheet â FAA UAS Test Site Program, https://www.faa.gov/news/fact_sheets/news_story. cfm?newsid=15575. See also Michael Huerta, Order, Selec- tion of Six Unmanned Aircraft Systems Test Sites in Accor- dance with FAA Modernization and Reform Act of 2012, PL-112-95, (Dec. 30, 2013), https://www.faa.gov/uas/media/ Order_Selecting_Six_UAS_Test_Sites.pdf. 150 fed. AViAtion Admin., Fact Sheet â FAA UAS Test Site Program, (Dec. 30, 2013), https://www.faa.gov/news/fact_ sheets/news_story.cfm?newsid=15575. See also Michael Huerta, Order, Selection of Six Unmanned Aircraft Sys- tems Test Sites in Accordance with FAA Modernization and Reform Act of 2012, PL-112-95, (Dec. 30, 2013), https:// www.faa.gov/uas/media/Order_Selecting_Six_UAS_Test_ Sites.pdf. 151 fed. AViAtion Admin., Unmanned Aircraft System Test Site Program, Docket No. FAA-2013-0061, http://www.faa. gov/uas/media/uas_privacy_requirements.pdf. 152 fed. AViAtion Admin., FAA Selects Unmanned Aircraft Systems Research and Test Sites, (Dec. 30, 2013), https:// www.faa.gov/news/press_releases/news_story.cfm? newsid=15576. 153 fed. AViAtion Admin., FAA Selects Six Sites for Unmanned Aircraft Research, (Dec. 30, 2013), https://www. faa.gov/news/updates/?newsid=75399. 154 Id. 155 fed. AViAtion Admin., Fact Sheet â FAA UAS Test Site Program, (Dec. 30, 2013), https://www.faa.gov/news/fact_ sheets/news_story.cfm?newsId=15575.
26 locations in Hawaii and Oregon. The research plan included the development of a set of standards for unmanned aircraft categories, state monitoring and navigation. Alaska also planned to work on safety standards for UAS operations. State of Nevada. Nevadaâs project objectives concentrated on UAS standards and operations as well as operator stan- dards and certification requirements. Its research also included a concentrated look at how air traffic control proce- dures would evolve with the introduction of UAS into the civil environment and how these aircraft will be integrated with NextGen. Nevadaâs selection contributed to geographic and climatic diversity. New Yorkâs Griffiss International Airport. Griffiss International planned to work on developing test and eval- uation as well as verification and validation processes under FAA safety oversight. It also planned to focus its research on sense and avoid capabilities for UAS and its sites intended to aid in researching the complexities of inte- grating UAS into the congested, northeast airspace. North Dakota Department of Commerce. North Dakota planned to develop UAS airworthiness essential data and validate high reliability link technology. It also proposed conducting human factors research. North Dako- taâs application was the only one to offer a test range in the Temperate (continental) climate zone and included a vari- ety of different airspace which will benefit multiple users. Texas A&M University â Corpus Christi. Texas A&M offered to develop system safety requirements for UAS vehicles and operations with a goal of protocols and proce- dures for airworthiness testing. The selection of Texas A&M contributed to geographic and climactic diversity. Virginia Polytechnic Institute and State University (Virginia Tech). Virginia Tech planned to conduct UAS failure mode testing and identify and evaluate operational and technical risks areas. Its proposal included test site range locations in both Virginia and New Jersey. Congress has not appropriated federal funds for test site operations or research.156 However, if the FAA obtains funding specific to UAS, it has stated that it will make those funds available to operators in accordance with the legislative language appropri- ating the funds.157 On May 6, 2015, meanwhile, the FAA announced a partnership with industry to explore the next steps in unmanned aircraft operations beyond the type of operations the agency proposed in its draft small unmanned aircraft systems rule it published in Feb- ruary 2015.158 Three companies reached out to the FAA to work on research to continue expanding use of UAS in the nationâs airspace in three focus areas: 159 â¢ Visual line-of-sight operations in urban areas. CNN will look at how UAS might be safely used for newsgather- ing in populated areas. â¢ Extended visual line-of-sight operations in rural areas. This concept involves UAS flights outside the pilotâs direct vision. UAS manufacturer PrecisionHawk will explore how this might allow greater UAS use for crop mon- itoring in precision agriculture operations. â¢ Beyond visual line-of-sight in rural/isolated areas. BNSF Railroad will explore command-and-control chal- lenges of using UAS to inspect rail system infrastructure. On October 7, 2015, the FAA entered into a Path- finder agreement with CACI International to evalu- ate how the companyâs technology can help detect UAS in the vicinity of airports.160 1. Temporary Flight Restrictions (TFRs) and âNo Drone Zonesâ A mechanism by which the FAA exercises control over the national airspace is the issuance of temporary flights restrictions (TFRs), which can be especially important in terms of drone operations.161 Under Title 14 of the Code of Federal Regulations, Parts 91 and 99, the FAA effects TFRs through the issuance of âNotice to Airmenâ (NOTAM) if and when regulators deter- mine that restricting a designating area of airspace is necessary to protect persons or property on the surface or in the air, to maintain air safety and efficiency, or to prevent the unsafe congestion of aircraft in the vicinity of an aerial demonstration or major sporting event.162 The FAA issues TFRs for a variety of reasons, includ- ing: toxic gas leaks or spills; fumes from flammable agents which, if fanned by rotor or propeller wash, could endanger persons or property on the surface or in other aircraft; volcanic eruptions that could endan- ger airborne aircraft and occupants; hijacking inci- dents that may endanger persons or property on the surface, or airborne aircraft and occupants; aircraft accident and incident sites; aviation or ground resources engaged in wildfire suppression; and/or air- craft relief activities following a disaster.163 Six types of TFRs exist, including those restrict- ing flight in the vicinity of disaster and hazard areas; 164 in national disaster areas in the State of 156 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,184 (June 28, 2016). 157 Id. 158 fed. AViAtion Admin., FAA Industry-Initiative Will Expand Small UAS Horizons, (May 6, 2016) https://www. faa.gov/news/press_releases/news_story.cfm?newsId= 18756. 159 fed. AViAtion Admin., Focus Area Pathfinders, https:// www.faa.gov/uas/programs_partnerships/focus_area_ pathfinder/. 160 fed. AViAtion Admin., FAA Expands Unmanned Aircraft Pathfinder Efforts, https://www.faa.gov/news/ updates/?newsId=83927. 161 fed. AViAtion Admin., fACility operAtion And Adminis- trAtion, order JO 7210.3Y (effective Apr. 3, 2014), ch. 19, Temporary Flight Restrictions, 19-1-3, http://www.faa.gov/ documentLibrary/media/Order/7210.3Y_with_CHG_2.pdf. 162 14 C.F.R. Â§ 91.145(a). 163 fed. AViAtion Admin., fACility operAtion And Adminis- trAtion, order JO 7210.3Y (effective Apr. 3, 2014), ch. 19, Temporary Flight Restrictions, 19-1-3, http://www.faa.gov/ documentLibrary/media/Order/7210.3Y_with_CHG_2.pdf. 164 14 C.F.R. Â§ 91.137.
27 Hawaii; 165 in the proximity of presidential and other parties; 166 and in the proximity of space flight opera- tions.167 Additionally, TFRs may be issued pursuant to emergency air traffic rules or special security instructions (e.g., national security).168 Under 14 C.F.R. Â§ 91.145, the FAA also has the authority to issue TFRs with respect to aerial demonstrations or major sporting eventsâvenues that increasingly invite drone operations.169 Examples of aerial dem- onstrations or major sporting events for which the FAA may issue a TFR include United States Naval Flight Demonstration Team (Blue Angels); United States Air Force Air Demonstration Squadron (Thunderbirds); United States Army Parachute Team (Golden Knights); Summer or Winter Olympic Games; Annual Tournament of Roses Football Game; World Cup Soccer; Major League Baseball All-Star Game; World Series; Kodak Albuquerque International Balloon Fiesta; Sandia Classic Hang Gliding Competition; and the Indianapolis 500 Mile Race.170 The amount of airspace needed to protect persons and property on the surface or in the air, to maintain air safety and efficiency, or to prevent the unsafe congestion of aircraft will vary depending on the size of the event; however, the restricted airspace will normally be limited to a 3-nautical-mile radius from the center of the event and 2,500 feet above the surface but will not be greater than the minimum airspace necessary for the management of aircraft operations in the vicinity of the specified area.171 Under NOTAM 4/3621, the FAA has issued TFRs respecting drones near sporting events particularly. The TFR requires that an operator obtain permis- sion for flight and imposes restrictions concerning the time of operations and the range of flight.172 All unmanned aircraft and remote controlled aircraft operations are prohibited within a 3-nautical-mile radius up to and including 3,000 feet above ground level of any stadium having a seating capacity of 30,000 or more people where either a regular or post season Major League Baseball, National Football League, or NCAA division one football game is occur- ring.173 Moreover, flights conducted for operational purposes of any event, stadium or venue and broad- cast coverage for the broadcast rights holder are authorized with an approved airspace waiver.174 An FAA airspace waiver does not relieve operators from obtaining all other necessary authorizations and complying with all applicable FARs.175 These restric- tions do not apply to those aircraft authorized by and in contact with ATC for operational or safety of flight purposes, Department of Defense, law enforcement, and air ambulance flight operations.176 A dynamic example of the interplay of TFRs, drones, and sporting events occurred during the halftime show for Super Bowl LI at NRG Stadium in Houston, Texas, in February 2017, which featured a synchronized swarm of 300 illuminated âShooting Starâ drones fly- ing over and behind singer Lady Gaga in the forma- tion of an American flag as she recited the Pledge of Allegiance from the roof of the stadium.177 The drones were not actually there, however. To comply with a new regulation prohibiting the flight of UAVs over 165 Section 91.138 of Title 14 of the Code of Federal Reg- ulations governs the issuance of TFRs in national disaster areas in the state of Hawaii. 166 14 C.F.R. Â§ 91.141 governs flight restrictions in the proximity of Presidential and other parties: âNo person may operate an aircraft over or in the vicinity of any area to be visited or traveled by the President, the Vice Presi- dent, or other public figures contrary to the restrictions established by the Administrator and published in a Notice to Airmen (NOTAM).â 167 Id. at Â§ 91.143 (âFlight limitation in the proximity of space flight operationsâ): âWhen a Notice to Airmen (NOTAM) is issued in accordance with this section, no per- son may operate any aircraft of U.S. registry, or pilot any aircraft under the authority of an airman certificate issued by the Federal Aviation Administration, within areas des- ignated in a NOTAM for space flight operation except when authorized by ATC.â 168 E.g., 14 C.F.R. Â§ 99.7. 169 See, e.g., Doug Criss, No Drones: FAA Only Wants Pig- skin in the Air at Super Bowl, CNN, (Jan. 31, 2015), http:// www.cnn.com/2015/01/28/us/super-bowl-no-drones/. 170 14 C.F.R. Â§ 91.145 requires that NOTAMs state the name of the aerial demonstration or sporting event and specify the effective dates and times, the geographic fea- tures or coordinates, and any other restrictions or proce- dures governing flight operations in the designated air- space. When a NOTAM is issued, âno person may operate an aircraft or device, or engage in any activity within the designated airspace area, except in accordance with the authorizations, terms, and conditions of the temporary flight restriction published in the NOTAM, unless other- wise authorized by air traffic control of a Flight Standards Certificate of Waiver or Authorization issued for the dem- onstration or event.â 171 14 C.F.R. Â§ 91.145(e)(2). 172 fed. AViAtion Admin., NOTAM 4/3621, https://www. faasafety.gov/files/notices/2014/Oct/NEW_Sporting_ Event_4-3621.pdf. 173 Id. 174 Id. 175 Id. 176 Id. 177 Henri Gendreau & Alan Levin, Lady Gaga Halftime Drone Swarm was Pretaped to Shield Crowd, bloomberg, (Feb. 7, 2017), https://www.bloomberg.com/news/articles/ 2017-02-07/lady-gaga-s-halftime-drone-swarm-was- pretaped-to-shield-crowd. See also Ted Greenwald, Intel Basks in Afterglow of Halftime Show, WALL. ST. J., Feb. 7, 2017, at B6 (âMany TV viewers thought they were watch- ing a live light show, a perception Intel didnât go out of its way to dispel. âOur drones have returned to the ground after an amazing #PepsiHalftime show,â the company tweeted shortly afterward.â).
28 people,178 Intel Corp. prerecorded its formation flying and then fed video into the game day broadcastâfans in the stadium watched video just like home viewers.179 Although the drone portion of the show was not live, the FAA designated the Super Bowl as a âno drone zone.â 180 2. Special Flight Rules Area (SFRA) The FAA is leading a public outreach campaign in connection with the National Capital Region around Washington, D.C., to reinforce the message that the District of Columbia and cities and towns within a certain mile radius of Ronald Reagan Washington National Airport constitute a âNo Drone Zone.â 181 Federal rules prohibit any aircraft from operating in the Flight Restricted Zone around the nationâs capital without specific approval, which includes all UAVs.182 The National Capital Region, moreover, is governed by a Special Flight Rules Area (SFRA) within a 30-mile radius of Ronald Reagan Washington National Airport, which restricts all flights in the greater Washington, D.C., area. Divided into a 15-mile radius inner ring and a 30-mile radius outer ring, the SFRA is structured such that unmanned aircraft operations within the 15 mile radius inner ring is prohibited without specific FAA authorization; on the other hand, between 15 and 30 miles from Washington, D.C., model aircraft pilots, commercial and public users can fly their UAS according to these specific conditions: 183 â¢ Aircraft must weigh less than 55 lbs. (including any attachments such as a camera). â¢ Aircraft must be registered and marked. â¢ Fly below 400 ft. â¢ Fly within visual line of sight. â¢ Fly in clear weather conditions. â¢ Never fly near other aircraft. The airspace around Washington, D.C., is more restricted than in any other part of the country under rules put in place after the September 11, 2001, attacks that established ânational defense airspaceâ over the area and limited aircraft operations to those with an FAA and Transportation Security Administration authorization.184 Violators face stiff fines and/or crimi- nal penalties, including imprisonment for up to one year.185 To assist operators in avoiding these fines and penalties, the FAA has made âNo Drone Zoneâ out- reach materials available through a digital toolkit, which is offered to federal, state, and other local part- ners around the National Capital Region to ensure that residents and tourists all understand that operat- ing an unmanned aircraft in this area for any purpose is against the law.186 This digital toolkit includes âNo Drone Zoneâ signage for any medium, including print and web, and informational handout cards explaining that the National Capital Region is a No Drone Zone.187 3. Part 107: Limitations on Operations of sUAS in Certain Airspace In its 2015 Notice of Proposed Rulemaking (NPRM), the FAA proposed limiting the exposure of small unmanned aircraft to other users of the NAS by restricting small UAS (sUAS) operations in con- trolled airspace.188 In addition, the NPRM proposed prohibiting sUAS operations in prohibited and restricted areas without permission from the using or controlling agency.189 The proposed rule also 178 14 C.F.R. Â§ 107.39 (âOperation over human beingsâ) (âNo person may operate a small unmanned aircraft over a human being unless that human being is: (a) directly participating in the operation of the small unmanned air- craft; or (b) located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.â). This limitation is waivable under 14. C.F.R. Â§ 107.205(g). 179 Gendreau & Levin, Lady Gaga Halftime Drone Swarm was Pretaped to Shield Crowd, supra note 177 (âIntel also produced a holiday show with Disney in Floridaâ¦with drones forming a green Christmas tree and a blue dove, among other effects.â). 180 fed. AViAtion Admin., No Drone Zone for Those Attend- ing the Super Bowl, https://www.faa.gov/news/updates/ ?newsId=87305 (âTemporary Flight Restrictions will pro- hibit certain aircraft operations, including unmanned air- craft operations, or drones, within a 34.5-mile radius of NRG Stadium in downtown Houston, Texas on game day.â). 181 fed. AViAtion Admin., No Drone Zone, http://www.faa. gov/uas/no_drone_zone/. 182 Id. 183 fed. AViAtion Admin., DC Is a No Drone Zone, https:// www.faa.gov/uas/no_drone_zone/dc/. 184 Id. 185 Id. See also 49 U.S.C. Â§ 46307 (âViolation of National Defense Airspaceâ). See generally Emily Miller, Man Vio- lates DCâs No Drone Zone Law after Unmanned Aircraft Flies over Ellipse, (Oct. 9, 2015), http://www.fox5dc.com/ news/31438716-story; Zeke J. Miller, What You Need to Know About Flying Drones in Washington, D.C., time, May 6, 2014, http://time.com/88772/drones-washington-dc/. 186 fed. AViAtion Admin., No Drone Zone, https://www. faa.gov/uas/where_to_fly/no_drone_zone/. 187 Id. See also fed. AViAtion Admin., FAA Kicks Off âNo Drone Zoneâ Effort for D.C. Area, (May 13, 2015), https:// www.faa.gov/news/updates/?newsId=82865. 188 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,142 (June 28, 2016). See also Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9,544 (proposed Feb. 23, 2015). 189 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,142 (June 28, 2016). See also Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9,544 (proposed Feb. 23, 2015).
29 prohibited operation of sUAS in airspace restricted by NOTAMs unless authorized by ATC or a COA.190 Ultimately, the FAA issued regulations (14 C.F.R. Part 107) that allow UAV operations in Class B through E airspace and in prohibited or restricted areas as proposed in the NPRM, but with the option to request a waiver from the provisions for operating in Class B through E airspace (a waiver is unneces- sary if ATC authorization is obtained).191 The rule has not adopted the provisions for compliance with NOTAMs as proposed, but instead requires compli- ance with 14 C.F.R. Â§Â§ 91.137 through 91.145 and Â§ 99.7, as applicable.192 Moreover, the rule did not adopt the proposed prohibition on operations in Class A airspace because, in the FAAâs estimation, the other operational restrictions of the rule will keep a small unmanned aircraft from reaching Class A airspace.193 Lastly, 14 C.F.R. Part 107 contains a prohibition against small unmanned aircraft opera- tions that interfere with operations and traffic pat- terns at any airport, heliport or seaplane base.194 Additionally, Part 107 now requires small unmanned aircraft to operate no higher than 500 feet (150 meters) below clouds and 2,000 feet (600 meters) horizontally away from cloudsâoperational parameters that are like those under 14 C.F.R. Â§ 91.155 applicable to aircraft operating in con- trolled airspace under visual flight rules. a. Operations in Class B, C, D, and Lateral Surface Area of Class E Airspace Designated for an Airport Under 14. C.F.R. Part 107, drone operations are limited to specific airspace, as follows: Â§ 107.41 Operation in certain airspace. No person may operate a small unmanned aircraft in Class B, Class C, or Class D airspace or within the lateral bound- aries of the surface area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control. To implement this rule, the FAA has established two methods by which a remote pilot in command may request FAA authorization for a sUAS to operate in Class B, C, D, and the lateral boundaries of the surface area of Class E airspace designated for an airport: (1) a remote pilot in command may seek approval from the ATC facility with jurisdiction over the airspace in which the remote pilot would like to conduct operations; or (2) a remote pilot may request a waiver from this provision in order to operate in Class B through E airspace.195 As stated in the FAAâs NPRM, the appropriate ATC facility has the best understanding of local air- space, its usage, and traffic patterns and is in the best position to ascertain whether the proposed sUAS operation would pose a hazard to other users or the efficiency of the airspace, and procedures to implement to mitigate such hazards.196 The ATC facility has the authority to approve or deny aircraft operations based on traffic density, controller work- load, communications issues, or any other type of operational issues that could potentially impact the safe and efficient flow of air traffic in that airspace.197 If necessary to approve a sUAS operation, ATC may require mitigations such as altitude constraints and direct communication.198 ATC may deny requests that pose an unacceptable risk to the NAS and can- not be mitigated.199 That said, the ATC facility does not have the authority to approve or deny sUAS operations on the basis of equipage that exceeds the Part 107 requirements.200 Because additional equipage and technologies such as geo-fencing have not been cer- tificated by the FAA, they therefore need to be exam- ined on a case-by-case basis in order for the FAA to determine their reliability and functionality.201 Addi- tionally, according to the FAA, requiring ATC to review equipage would place a burden on ATC and detract from other duties.202 Instead, a remote pilot who wishes to operate in controlled airspace because he or she can demonstrate mitigations through equipage may do so by applying for a waiver.203 Requests for authorization to operate a UAS in cer- tain airspace should be made in writing or by an elec- tronic method as determined by the FAA and publicized on the FAAâs website.204 Requests for such authorization via ATC radio communication frequen- cies will not be accepted because they may interfere 190 Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,142 (June 28, 2016). See also Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9,544 (proposed Feb. 23, 2015). 191 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,142 (June 28, 2016). 192 Id. 14 C.F.R. Â§Â§ 91.137 through 91.145 govern tem- porary flight restrictions and Â§ 99.7 sets out âspecial secu- rity instructions.â 193 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,142 (June 28, 2016). 194 Id. 195 Id. at 42,143. 196 Id. 197 Id. 198 Id. 199 Id. 200 Id. 201 Id. 202 Id. 203 Id. 204 Id.
30 request is sent to the air traffic service center.214 The service center then works with the appropriate ATC facility to respond to the request.215 The newly enacted rule under Part 107 will streamline the process, such that equipage no longer needs to be reviewed by the FAA if the Part 107 requirements are met.216 There- fore, the only outstanding step in the COA process would be resolving requests to operate in controlled airspace.217 The rule also incorporates that step within the ATC-permission framework, making the COA process unnecessary for Part 107 operations.218 b. Operations in Class A Airspace The FAAâs 2015 NPRM articulated a prohibition of sUAS operations in Class A airspace, which, pur- suant to 14 C.F.R. Â§ 71.33, starts at 18,000 feet mean sea level and extends up to 60,000 feet.219 The newly enacted Part 107 will not adopt the proposed prohi- bition, however, because a sUAS will be unable to access Class A airspace without violating the other operational restrictions of Part 107.220 c. Operations in Prohibited or Restricted Areas, NOTAMs As detailed in Section A.1., supra, the FAA estab- lishes prohibited and restricted areas when neces- sary to prohibit flight over an area on the surface in the interest of national security or welfare.221 Restricted airspace is designated under 14 C.F.R. Part 71 when the FAA determines it is necessary to confine or segregate activities hazardous to nonpar- ticipating aircraft.222 While recognizing that the publicâs right of free transit through the airspace includes the users of unmanned aircraft, the FAA has not created special use airspace applicable to only one particular airframe or aircraft type.223 The FAAâs NPRM contained a prohibition of sUAS operations in prohibited and restricted areas without permission from the using or controlling agency, as applicable.224 The proposed provision with the separation of aircraft.205 What is more, while some UAS activity will still utilize a COA, operating under Part 107 regulations will not require a COA where ATC permission is specified.206 The FAA is working concurrently on several other documents, including an advisory circular, and training and direc- tion to ATC facilities that will provide guidance to users and ATC personnel as to procedures and respon- sibilities.207 This guidance, the FAA has asserted, will ensure consistent application of ATC permission and processes, to the extent practicable.208 This framework is similar to the regulatory regime for controlled-airspace access under Part 91.209 Specifically, while Part 91 imposes minimum equipage requirements on aircraft seeking to oper- ate in controlled airspace, Part 91 also gives ATC the power to authorize aircraft that do not have the required equipage to access the airspace.210 Part 107 provides ATC with a similar power to evaluate whether an individual sUAS operation may safely be conducted in controlled airspace even though the unmanned aircraft lacks equipage typically used to mitigate safety concerns in that airspace.211 Finally, the FAA has expressed disagreement that the current COA process would be a better mechanism for operating in controlled airspace.212 Currently, when a sUAS operator applies for a COA, the Flight Standards Service in the FAA first addresses the equipage exemptions, and then if a favorable outcome is reached, the operator is allowed to operate in Class G airspace up to 200 feet AGL.213 If an operator wishes to operate in controlled air- space, under the previous COA framework, the 205 Id. The FAA has not committed to a timeline for approval after ATC permission has been requested because determining the level of review required for approval is dependent on the management at the individual facilities. Id. Additionally, the FAA has noted that the time required for approval will vary based on the resources available at the ATC facility and the complexity and safety issues raised by each specific request. Id. The FAA thus encour- ages remote pilots who know that they will need to operate in Class B, C, D, or E airspace to contact the appropriate ATC facility as soon as possible prior to the operation. Id. 206 Id. 207 Id. 208 Id. The FAA has noted that some discrepancies may arise due to the unique nature of different airspace. Id. 209 Id. at 42,144. 210 Id. See, e.g., 14 C.F.R. Â§ 91.215(b) (allowing ATC to authorize access to Class A, B, or C airspace for aircraft that do not have a transponder) and Â§ 91.225(b) (allowing ATC to authorize access to Class B or C airspace for air- craft that do not have ADS-B). 211 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,144 (June 28, 2016). 212 Id. 213 Id. 214 Id. 215 Id. 216 Id. 217 Id. 218 Id. 219 Id. at 42,146. 220 Id. Section 71.33(b) in Title 14 of the Code of Federal Regulations respecting Class A airspace in Alaska specifi- cally excludes the airspace less than 1,500 feet above the surface of the earth, eliminating the possibility of a small UAS operating under Part 107 from reaching Class A air- space given the altitude limitations of the rule. Id. 221 Id. 222 Id. 223 Id. 224 Id.
31 and Â§ 99.7 (âspecial security instructionsâ),232 as applicable.233 The FAA also declined to impose additional NOTAM requirements on sUAS operations.234 The NOTAM sys- tem is used to alert pilots of conditions or situations in the NAS that could present a hazard to aircraft.235 His- torically, the FAA has used a NOTAM requirement in the COAs it issued for UAS operations.236 This was appropriate because sUAS operations were outside the regulatory structure that was then in place, and, while not inherently hazardous, sUAS flights required exemption or waiver from a number of FAA regula- tions.237 Because these operations deviated from exist- ing FAA regulations, a NOTAM was an acceptable means to notify pilots of the activity, according to the FAA.238 However, with Part 107, the FAA contends that it is aiming to bring a subset of UAS operations within the FAA regulatory structure.239 Civil, public, and mili- tary pilots are expected to be familiar with regulations affecting their flight, including the possibility of encountering UAS activity below 400 feet; therefore, requiring a NOTAM would not be appropriate.240 d. Operations in Class G Airspace The FAA did not include any discussion of airports in Class G airspace in its 2015 NPRM and it did not propose any provisions to restrict sUAS operations in the vicinity of airports in Class G airspace.241 Class concerning prohibited and restricted areas was like the Part 91 restriction on operations in these areas, and did not include any new UAS-specific prohib- ited or restricted areas.225 The FAA has adopted these proposed provisions in its final rule under Part 107, as follows: Â§ 107.45 Operation in prohibited or restricted areas. No person may operate a small unmanned aircraft in pro- hibited or restricted areas unless that person has permis- sion from the using or controlling agency, as appropriate. Â§ 107.47 Flight restrictions in the proximity of certain areas designated by notice to airmen. A person acting as a remote pilot in command must comply with the provisions of Â§ 91.137 and 99.7 of this chapter.226 In implementing this rule, the FAA declined sugges- tions to create UAS-specific restricted airspace around certain facilities.227 That said, the FAA has directed UAS stakeholders to NOTAM 4/0811, which states that ââ¦to the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants (nuclear, hydro-electric, or coal), dams, refineries, industrial complexes, military facilities and other similar facil- ities. Pilots should not circle as to loiter in the vicin- ity over these types of facilities.â 228 This NOTAM applies with equal force to pilots of manned and unmanned aircraft, though it is advisory and thus, does not constitute a regulatory prohibition.229 As to other NOTAMS, the FAAâs NPRM pro- posed a prohibition of sUAS operation in airspace restricted by NOTAMs, including NOTAMs issued to designate a TFR, unless authorized by ATC or a COA.230 After reviewing comments on this issue, the FAA elected to change the method by which remote pilots may gain permission to operate in airspace restricted by NOTAMs. Part 107 now requires that sUAS operators comply with the provisions of 14 C.F.R. Â§Â§ 91.137 through 91.145 (governing temporary flight restrictions (TFRs)),231 225 Id. 226 14 C.F.R. Â§ 91.137 governs temporary flight restric- tions in the vicinity of disaster and hazard areas while 14 C.F.R. Â§ 99.7 relates to special security instructions for air- craft operations that may impact national security interests. 227 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,147 (June 28, 2016). 228 Id. See also FDC 4/0811, June 18, 2007, at 2106. 229 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,147 (June 28, 2016). 230 Id. 231 Several types of TFRs exist, including restrictions of flight in the vicinity of disaster and hazard areas; in national disaster areas in Hawaii; in the proximity of pres- idential and other parties; near major sporting events; and in the proximity of space flight operations. 232 Pursuant to 14 C.F.R. Â§ 99.7, â[e]ach person operating an aircraft in an ADIZ or Defense Area must, in addition to the applicable rules of this part, comply with special secu- rity instructions issued by the Administrator in the inter- est of national security, pursuant to agreement between the FAA and the Department of Defense, or between the FAA and a U.S. Federal security or intelligence agency.â 233 Additionally, the FAA has noted that Part 91 subpart J lists the provisions under Part 91 that are waivable, and describes the process to request a waiver. Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,147 (June 28, 2016). Because small UAS remote pilots will be subject to the Part 91 provisions, the waiver provisions and process described in Part 91 subpart J also apply should a remote pilot wish to seek a waiver from the applicable Part 91 provisions. Id. at 42,147. 234 Id. at 42,148. 235 Id. 236 Id. 237 Id. 238 Id. 239 Id. 240 Id. As part of their see and avoid responsibilities, remote pilots must use extreme caution when operating through a military training route (MTR) or military opera- tions area (MOA). Id. Because of the high speed of some military aircraft, the necessary reaction time will be sub- stantially less in an MTR or MOA. Checking the NOTAM system and/or the responsible Flight Service Station for activity in these areas will provide information to a remote pilot that will help ensure a safe flight. Id. 241 Id.
32 that interferes with operations and traffic patterns at airports, heliports, and seaplane bases.253 While a small unmanned aircraft must always yield right of way to a manned aircraft, a manned aircraft may alter its flight path or delay its landing or takeoff in order to avoid a sUAS that may present a potential conflict or otherwise affect the safe out- come of the flight, according to the FAA.254 For exam- ple, an unmanned aircraft hovering 200 feet above a runway may cause a manned aircraft holding short of the runway to delay take off, or a manned aircraft on the downwind leg of the pattern to delay land- ing.255 While the unmanned aircraft in this scenario would not pose an immediate traffic conflict to the aircraft on the downwind leg of the traffic pattern or to the aircraft intending to takeoff, nor would it violate the right-of-way provision of 14 C.F.R. Â§ 107.37(a), the small unmanned aircraft would have interfered with operations and traffic patterns at an airport, according to the FAA.256 In order to avoid interfering with operations in a traffic pattern, remote pilots should avoid operating in the traffic pattern or published approach corri- dors used by manned aircraft.257 When operational necessity requires the remote pilot to operate at an airport in uncontrolled airspace, the remote pilot should operate the small unmanned aircraft in such a way that the manned-aircraft pilot does not need to alter his or her flight path in the traffic pattern or on a published instrument approach in order to avoid a potential collision.258 Because remote pilots have an obligation to yield right of way to all other aircraft and avoid interfering in traffic pattern oper- ations, the FAA expects that most remote pilots will avoid operating in the vicinity of airports because their aircraft generally do not require airport infra- structure, and the concentration of other aircraft increases in the vicinity of airports.259 In all, the FAA added this âperformance-based approachâ requirement in response to concerns that sUAS operations may present a hazard to manned aircraft operating at low altitudes in the vicinity of airports in both controlled and uncontrolled G airspace is considered uncontrolled and ATC does not have authority or responsibility for separation of traffic.242 After further review, the FAA ultimately decided to include a provision in its final rule that prohibits any small unmanned aircraft operations that interfere with operations and traffic patterns at any airport, heliport, or seaplane base, as follows:243 Â§ 107.43 Operation in the vicinity of airports. No person may operate a small unmanned aircraft in a manner that interferes with operations and traffic patterns at any airport, heliport, or seaplane base. This rule reflects the FAAâs determination that sUAS operations should be integrated with existing manned operations in Class G airspace âbecause Part 107 has specific risk mitigation and hazard reduction provisions that facilitate integration.â 244 First, sUAS pilots will be required to pass initial aeronautical knowledge testing before receiving a Part 107 airman certificate.245 This knowledge test- ing will include operations in Class G airspace.246 With issuance of the remote pilot certificate, the pilot will have the authority and responsibility of a remote pilot in command.247 The remote pilot in command will also be directly responsible for, and will be the final authority as to the operation of the small unmanned aircraft system.248 Finally, the remote pilot in command will be required to ensure that the small unmanned aircraft will pose no undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft for any reason.249 Notwithstanding this reasoning, the FAA has acknowledged that there is a risk associated with close operations between manned and unmanned aircraft.250 Therefore, Part 107 includes a âperfor- mance-based approachâ to integrating small unmanned aircraft near airports, heliports, and sea- plane bases.251 Because the NPRM did not contem- plate prohibiting operations within the vicinity of an airport in Class G airspace, the FAA decided against restricting sUAS operations within a specified dis- tance from an airport.252 Rather, in response to con- cerns regarding the integration of sUAS and manned aircraft, Part 107 prohibits remote pilots from oper- ating their small unmanned aircraft in a manner 242 Id. 243 Id. 244 Id. 245 Id. 246 Id. 247 Id. 248 Id. 249 Id. 250 Id. 251 Id. 252 Id. 253 Id. 254 Id. 255 Id. 256 Id. 257 Id. The official source for airport traffic patterns is the Airport/Facility Directory (A/FD); Instrument Approach Procedures are published by the FAA and can be found in U.S. Terminal Procedures Publications (TPPs). Id. See also https://www.faa.gov/air_traffic/flight_info/aeronav/ digital_products/dtpp/. 258 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,147 (June 28, 2016). 259 Id.