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

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45 integrated way with traditional manned aircraft. Meanwhile, Syracuse’s Hancock International Airport became the nation’s first commercial airport with federal permission to launch and land unmanned air- craft, including daily training flights of the Air National Guard’s 174th Attack Wing MQ-9 Reaper drones. Powell Municipal Airport—a general aviation airport in Wyoming—similarly is poised to become one of the first public airports in the nation to allow UAS and manned aircraft in the same airspace.385 And, Mississippi is home to a UAS flight testing facil- ity where Stark Aerospace has been flying Heron UAS from the Golden Triangle Regional Airport, con- ducting autonomous takeoffs and landings. What is more, soon after the FAA announced that it had issued new rules allowing small UAS opera- tions, public and private entrepreneurs began to look at the development of ground-based assets that could augment existing benefits of unmanned aviation. In Nevada, for example, the Boulder City Council unani- mously approved a 20-year joint land-lease agree- ment between the city and Aerodrome to build a drone airport in El Dorado Valley.386 In addition, the House Small Business Committee received testimony about private companies interested in developing airports specifically for drones—so-called “droneports.” 387 There is international interest in drone-only facilities, too. In fact, Rwanda could be the first coun- try in the world with a network of drone airports as its civil aviation authority is reportedly drafting regulations ahead of investor interest in building a logistics system in Africa to transport medicine in areas difficult to reach by road.388 These droneports will “support cargo drone routes capable of deliver- ing urgent and precious supplies to remote areas on a massive scale,” according to a British architecture Not to be lost in the foregoing discussion of law enforcement efforts to prevent and identify unscru- pulous UAS operators is the operation of UAS by law enforcement agencies themselves. The FAA fol- lows the COA process for such operations.380 Under an early guidance document, a defined incident perimeter was established within the FAA’s jurisdic- tion, eliminating the need for the often-time- consuming emergency COA approval process for a specific law enforcement mission.381 For all other missions, law enforcement agencies with defined incident perimeters were permitted to fly UAS with the following restrictions: 382 • Operations must be conducted within line of sight of the UAS pilot. • Operations must be limited to below 400 feet above ground level. • All flights must be conducted in visual meteorological conditions. • All flights must be conducted within the limitations speci- fied in the COA. • Operations may be permitted in Class C, D, E and G air- space as specified in the COA. • Agencies may be permitted to operate within five nautical miles of an airport with certain restrictions as specified in the COA. In any case, if an airport has law enforcement officers assigned to the airport, they should have an operational plan in place to respond to or coordinate a response to UAS intrusions.383 If not, the airport sponsor should meet with local law enforcement agencies to educate them about the potential prob- lem and establish a coordinated plan for their response, if necessary.384 VII. UAS AND AIRPORTS Notwithstanding doomsday hypotheticals of the sky turning dark with UAS, integration of UAS and manned airplanes is possible, in concept and in fact. For example, at military airfields, like Creech Air Force Base in Clark County, Nevada, UAS with wingspans as wide as a Boeing 757 take off, navigate, communicate, and land in a coordinated and 380 fed. AViAtion Admin., flight stAndArds informAtion mAnAgement system, Vol. 16, Unmanned Aircraft Sys- tems, ch. 1, § 2, ¶ 16-5-5-1. 381 Id. 382 Id. 383 Am. Ass’n of Airport exeCutiVes, UAS Issues and Integration Conference, Nov. 9–11, 2016 (comments of Donald Shinnamon, Unmanned Safety Institute). 384 Id. 385 Powell Airport Looks to Bring Drones to the Sky, KCWY13, (Dec. 5, 2016), http://www.kcwy13.com/content/ news/powellairportdrones-404875065.html. 386 See Max Lancaster, City OKs 20-Year Lease to Build Droneport, boulder City reV., (Oct. 26, 2016), http://boul- dercityreview.com/news/city-oks-20-year-land-lease- build-droneport (“The agreement between Aerodrome and the city requires Boulder City to supply the land for the droneport while the company must pay for construc- tion of the project and the expertise to ensure the airport follows federal and state guidelines. The city will receive $6,000 per acre or $30,000 per year for the 5-acre plot. City Manager David Fraser said the city’s agreement with Aerodrome will be an economic boon someday.”). 387 Stephanie Beasley, Droneport Approval Sought from FAA, bloomberg BNA, (Sept. 28, 2016), https://www. bna.com/droneport-approval-sought-n57982077642/. 388 Rwanda to Host World’s First “Drone Airport,” neW- times, (Oct. 8, 2015), http://www.newtimes.co.rw/section/ article/2015-10-08/193297/.

46 In a 2016–2017 survey of members of the AAAE, airport sponsors identified foreign object debris sur- veillance, wildlife management, aircraft mainte- nance, terminal or perimeter security, airport construction, infrastructure inspection, passenger services, and cargo among “UAS operations that could benefit your airport.” 390 Respondents then ranked the usefulness of each mission as follows: • Most respondents viewed foreign object debris detection as a ready use of UAS at airports. Of those sponsors who identified foreign object debris detection as a useful UAS operation, 37% identified this type of operation as “very helpful,” 31% as “somewhat helpful,” 20% as “neutral,” 10% as “somewhat unhelpful,” and 2% as “very unhelpful.” • A significant number of respondents rated the deployment of UAS for wildlife management highly. Of those sponsors who identified wildlife management as a useful UAS operation, 55% iden- tified this type of operation as “very helpful,” 37% as “somewhat helpful,” and 8% as “neutral.” • Airport sponsors were largely neutral as to whether UAS were helpful in the arena of aircraft maintenance. Of those sponsors who identified air- craft maintenance as a useful UAS operation, 8% identified this type of operation as “very helpful,” 19% as “somewhat helpful,” 49% as “neutral,” 8% as “somewhat unhelpful,” and 16% as “very unhelpful.” • Use of UAS for airport construction projects also was identified as useful though several respondents identified this use unfavorably. Of those sponsors who identified airport construction as a useful UAS operation, only 28% identified this type of operation as “very helpful” versus 52% as “somewhat helpful,” 18% as “neutral,” and 2% as “very unhelpful.” • Most respondents ranked use of UAS for in- frastructure inspection as a valuable application. Of those sponsors who identified infrastructure inspection as a useful UAS operation, 51% identi- fied this type of operation as “very helpful,” 27% as “somewhat helpful,” 20% as “neutral,” and 2% as “very unhelpful.” • Most respondents remain on the sideline in terms of evaluating how UAS might be used for pas- senger services. Of those sponsors who identified passenger services as a useful UAS operation, 4% identified this type of operation as “very helpful,” 10% as “somewhat helpful,” 62% as “neutral,” 8% as “somewhat unhelpful,” and 16% as “very unhelpful.” • Most respondents also remain undecided about the use of UAS for cargo operations. Of those sponsors who identified cargo as a useful UAS op- eration, 10% identified this type of operation as firm that foresees droneports as a new and poten- tially ubiquitous typology, as follows: 389 Cargo drone routes have utility wherever there is a lack of roads. Just as mobile phones dispensed with landlines, cargo drones can transcend geographical barriers such as mountains, lakes, and unnavigable rivers without the need for large-scale physical infrastructure. Just a third of Afri- cans live within two kilometres of an all-season road, and there are no continental motorways, almost no tunnels, and not enough bridges that can reach people living in far-flung areas of the continent. It would require unprecedented lev- els of investment in roads and railways to catch up with the exponential growth in Africa’s population, which is set to double to 2.2 billion by 2050. An “infrastructural leap” is essential using drone technology and clean energy systems to surmount the challenges of the future. The specialist drones can carry blood and life-saving sup- plies over 100 kilometres at minimal cost, providing an affordable alternative that can complement road-based deliveries. Two parallel networks would operate services, the Redline using smaller drones for medical and emer- gency supplies; and the commercial Blueline that would transport crucial larger payloads such as spare parts, elec- tronics, and e-commerce, complementing and subsidising the Redline network. The Droneport offers a new typology for a building which we hope will grow into a ubiquitous presence, much like pet- rol stations have become dispersed infrastructure for road traffic. The proposal will have a strong civic presence, based on sharing and multiple uses. It allows for safe landing of quiet drones in a densely packed area, and includes a health clinic, a digital fabrication shop, a post and courier room, and an e-commerce trading hub, allowing it to become part of local community life. Indeed, what makes UAS so exciting to a broad range of people and firms is the ability it affords almost any operator to fly from anywhere through and over virtually any airspace. While commingling unmanned and manned assets presents obvious safety issues, airport owners, managers, and spon- sors regard various types of UAS operations at air- ports, if safely conducted, as beneficial and desirable. Among the many uses UAS offer airport sponsors, contractors, consultants, and tenants are terminal and perimeter inspection; airfield condition inspec- tions and foreign object debris detection; traffic management; parking surveillance; emergency response and event management; airport construc- tion, infrastructure and property surveying, and capital project support; wildlife management; air- craft maintenance; passenger services; cargo opera- tions; accident response; and Safety Management Systems (SMS) and Part 139 inspections. 389 Foster+Partners, Proposals for Droneport Project Launched to Save Lives and Build Economies, (Sept. 16, 2015), http://www.fosterandpartners.com/news/archive/ 2015/09/proposals-for-droneport-project-launched-to- save-lives-and-build-economies/. 390 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017).

47 A. Airports and UAS Operator Notification Aviation regulators have allocated and will con- tinue to dedicate considerable resources toward integrating drones into the NAS, but they have pro- duced comparatively less guidance about integrat- ing drones into the airport environment. In terms of facility planning, for example, the DOT transmitted the 2017–2021 National Plan of Integrated Airport Systems (NPIAS) to Congress on September 30, 2016, and the DOT recently released the National Plan of Integrated Airports Systems 2017–2021.393 Only two of 80 pages in these documents discuss UAS, and even then only by way of brief overview and summary. In addition, while the FAA’s current regulations for sUAS operations have been generally well received—allowing as they do flight for civil (includ- ing commercial) purposes under either a Section 333 COA or under Part 107—the UAS community has expressed confusion about UAS operations near the nation’s 19,000 commercial, cargo, and general aviation airports particularly with respect to: (1) the notice UAS operators must give airports in Class G Airspace, if any, and (2) whether airport owners, managers, and sponsors can refuse or decline to allow UAS operations near their airports without running afoul of FAA jurisdiction over matters of safety in the NAS. As a starting point, Part 107 contains two—but only two—provisions explicitly dealing with airports and airspace in the vicinity of airports: § 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 boundaries of the surface area of Class E airspace designated for an air- port unless that person has prior authorization from Air Traffic Control. § 107.43 Operation in the vicinity of airports. No per- son may operate a small unmanned aircraft in a manner that interferes with operations and traffic patterns at any airport, heliport, or seaplane base. Under this regulatory regime, small civil (including commercial) UAS operators may fly in controlled airspace (Classes B through G, see Figure 10) with ATC authorization under the authority of Part 107 while model airplane flight (e.g., hobby and recre- ational flight) is permissible under Section 336 of the FMRA and Part 101. UAS operators of drones weighing more than 55 lbs. can fly under Section 333 of the FMRA in accordance with any conditions imposed by the FAA in a COA. “very helpful,” 18% as “somewhat helpful,” 49% as “neutral,” 8% as “somewhat unhelpful,” and 15% as “very unhelpful.” Notwithstanding future-oriented initiatives for droneports and potential airport uses of UAS, current UAS operations present traditional airports with sig- nificant challenges, particularly in the dynamic and comparatively busy NAS over the United States. No standards, including established traffic patterns, exist for UAS operation, for instance.391 Moreover, by removing NOTAM requirements for UAS operations, Part 107 has left operators to follow the right-of-rules under 14 C.F.R. § 107.37(a). § 107.37 Operation near aircraft; right-of-way rules. (a) Each small unmanned aircraft must yield the right of way to all aircraft, airborne vehicles, and launch and reentry vehicles. Yielding the right of way means that the small unmanned aircraft must give way to the aircraft or vehicle and may not pass over, under, or ahead of it unless well clear. (b) No person may operate a small unmanned aircraft so close to another aircraft as to create a collision hazard. In any case, the FAA has voiced its own goals respecting the safe integration of UAS proximate to airports.392 The FAA’s goal is to safely integrate UAS into the NAS. Safety of the NAS is enhanced when the operator of a UAS and the airport operator coordinate prior to a UAS flight on or near an airport. This coordination enhances integration into the NAS by: • Allowing the airport operator to help the operator of the UAS aircraft understand the areas of manned aircraft flight near the airport, reducing the potential for conflicts between UAS activities and manned aircraft flights; • Allowing the airport operator to understand the proposed parameters of the UAS activities for situational awareness and coordination with airport tenants and users as necessary; • Allowing the airport operator to advise the UAS operator of unique manned aircraft activities near the airport (e.g., parachute activities, glider activities, etc.); • Allowing the airport operator to understand where UAS activities on or near the airport are occurring; and • Encouraging coordination of the airport sponsor with the local ATC facilities, Flight Standards District Office (FSDO), and Airports District Office (ADO), and local law enforcement. 391 Am. Ass’n of Airport exeCutiVes, UAS Issues and Integration Conference, Nov. 9–11, 2016 (comments of Jon- athan Daniels, Aerodrome) (noting that Aerodrome is treating UAS like an ultralight in the absence of traffic patterns and standards for UAS operations). 392 fed. AViAtion Admin., Unmanned Aircraft Systems (UAS) for Airport Operators, https://iowadot.gov/aviation/ news/pdfs/Unmanned%20Aircraft%20Systems%20 (UAS)%20for%20Airport%20Operators%20%E2%80% 93%20Airports.pdf. 393 fed. AViAtion Admin., report to Congress: nAtionAl plAn of integrAted Airport systems (NPIAS) 2017–2021, https://www.faa.gov/airports/planning_capacity/npias/ reports/media/NPIAS-Report-2017-2021-Narrative.pdf.

48 want to fly. 396 The app pulls information directly from publicly available FAA data sources and packages, including the FAA’s airport database, which includes all airports that meet the regulatory definition of an airport, from the largest commercial hubs to hospital helipads and backyard air strips.397 Model airfields of established community-based model aircraft organi- zations are not included, however. 398 In any case, the B4UFLY app is a voluntary prod- uct that includes: 399 • A clear “status” indicator that immediately informs the operator about the current or planned location. For example, it shows flying in the Special Flight Rules Area around Washington, D.C., is prohibited. • Information on the parameters that drive the status indicator. • A “Planner Mode” for future flights in differ- ent locations. • Informative, interactive maps with filtering options. • Links to other FAA UAS resources and regu- latory information. While this regulatory framework has gone a long way to clarifying who can fly and under what circumstances, airport managers have expressed uncertainty about whether UAS operators must provide notice of their operations, and as important, whether airports can deny requests for UAS opera- tion.395 Additionally, as a practical matter (and as further discussed in the following section), the rule requiring modelers to provide notice when flying within 5 miles of a particular airport may be imprac- ticable as the 5 mile radius of one airport may coin- cide or overlap with the 5 mile radius of numerous other unknown nearby airports, resulting in a sig- nificant notice burden for operators. 1. Model UAS Operators and Airport Notification Although governed by Part 101 instead of Part 107, operators of recreational and hobby (a/k/a model) UAS are obligated to give prior notice to airports or airport facilities within 5 statute miles of operation. Several tools exist to help modelers comply with this rule, not least of which is the FAA’s “B4UFLY” smart- phone app (see Figure 11), “an easy-to-use smart- phone app that helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they 394 ATC has the freedom to enter into Letters of Agree- ment with UAS proponents operating under a COA if desired. If they decide to, it supplements the COA, but is not an authorization to fly in airspace in and of itself. LOAs are done in accordance with Order JO 7210.3, Facil- ity Operation and Administration, ch. 4-3, https://www. faa.gov/documentLibrary/media/Order/7210.3Z.pdf. 395 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 396 fed. AViAtion Admin., B4UFLY Mobile App, https:// www.faa.gov/uas/where_to_fly/b4ufly/. 397 See fed. AViAtion Admin., B4UFLY General Ques- tions & Answers, https://www.faa.gov/uas/where_to_fly/ b4ufly/media/UAS_B4UFLY_QandA.pdf. 398 Id. 399 fed. AViAtion Admin., B4UFLY Mobile App, https:// www.faa.gov/uas/where_to_fly/b4ufly/. Sending flight information to the FAA using B4UFLY does not satisfy the airport notice requirement of Section 336 of the FMRA. Moreover, the FAA apparently has reserved its right to use information from the B4UFLY app in enforcement cases against anyone flying carelessly or recklessly, or endangering the NAS or people and property on the ground. See fed. AViAtion Admin., B4UFLY General Ques- tions and Answers, https://www.faa.gov/uas/where_to_fly/ b4ufly/media/UAS_B4UFLY_QandA.pdf. Figure 10. Allowed Airspace Operations for Model, Public, 333, and Part 107 UAS Figure 11. Sample Screenshots of FAA B4UFLY Smartphone App.

49 for model UAS operators vary widely depending on the type of airport involved. Currently, however, some airports around the nation appear to have achieved workable notifica- tion schemes.403 For example, a major hub like Phoe- nix Sky Harbor International Airport has a robust notification scheme, including a YouTube informa- tional video404 and an online form to make notifica- tions in the Phoenix metropolitan area; the form requires the name, e-mail, telephone number, and dates and times of UAS operation and providing a “drone safety map” for users to determine if their operation is permissible.405 Phoenix-Mesa Gateway Airport Authority has also made operational advice and notification procedures available online,406 while Houston Airports have published a web-based writ- ten policy respecting UAS operations.407 Operationally, B4UFLY has brought attention to two challenges associated with the FAA’s airport notification scheme for recreational and hobby UAS. First, where several airports are located in the same geographic area—as airports are across the country, whether in rural or urban areas (see Figure 12)—a five-mile ring around one airport invariably intersects with five-mile rings around other airports, metastasizing into a series of concentric circles that extends the initial boundaries of a “No Drone Zone” with a ten-mile diameter to an area several square miles more expansive than the rule intended. For example, as illustrated in Figure 12, in Orlando, Florida, the combination of a temporary flight restriction (red circle over Walt Disney World, cen- ter-left), Class B Airspace over Orlando Interna- tional Airport (center-right), and numerous private airports throughout the region, not to mention ubiq- uitous heliports, make flying impractical in all but the most remote locations and airspace. Saturated by the current scheme of airspace rings, modelers must give notice to numerous airports (many, if not all of which are within some type of con- trolled airspace). Indeed, in most parts of the country there is practically nowhere that modelers could operate that would not be within a five-mile radius of at least one if not multiple airports. Orlando, above, is one of many examples of the operational chal- lenges of integrating UAS into a highly segregated airspace originally intended for manned flight.400 A second and related concern for airport opera- tors related to model UAS operations is that the B4UFLY app does not contain ATC airport contact information.401 “Several users have suggested that B4UFLY provide contact numbers to call the air- ports and air traffic control towers,” the FAA has noted in guidance documents, “and we are consid- ering that request.” 402 Until then, airports across the nation have been left to design and make avail- able notification mechanisms for the model UAS community. Not only does this presume that air- ports have staff available to receive and process UAS pre-flight notices, but also that UAS opera- tors, many of whom are amateur aviators, know which airports are close to their operations or how to contact those facilities. Potentially complicating matters further is the fact that notification schemes 400 Texas presents another illustration as residents of Arlington, Texas must be concerned with UAS operations near three airports—Arlington Municipal, Grand Prairie Municipal, and DFW Airport. E.g., City of Arlington, texAs, Drone Notification Procedures, http://www.arlington- tx.gov/airport/drone-notification-procedures/. 401 See fed. AViAtion Admin., B4UFLY General Ques- tions and Answers, https://www.faa.gov/uas/where_to_fly/ b4ufly/media/UAS_B4UFLY_QandA.pdf. 402 Id. 403 phoenix sky hArbor internAtionAl Airport, Fly Your Drone Responsibly, https://skyharbor.com/Business/Rules AndRegulations/drones. 404 phoenix sky hArbor internAtionAl Airport, Own a Drone? Here are Some Tips to Fly Responsibly, https:// www.youtube.com/watch?v=N5EbarAzZ2A&feature= youtu.be. 405 phoenix sky hArbor internAtionAl Airport, Notify Us, https://skyharbor.com/Business/RulesAndRegulations/ drones/NotifyUs. 406 phoenix-mesA gAteWAy Airport, Fly Your Drone Responsibly, http://www.gatewayairport.com/Drone Information.aspx. 407 houston Airports, Unmanned Aircraft Systems (Drone) Operations, http://www.fly2houston.com/uas-operation/. Figure 12. AirMap View of Orlando, Florida Airport Airspace

50 by Part 107 or the common law and so ripe for fur- ther research and development, if not litigation.412 2. Part 107 UAS Operations, Class G Airspace, and Airports In the Preamble to Part 107, the FAA emphasized its exclusive authority of the airspace overlying an air- port while at the same time acknowledging that air- ports have the power to govern UAS operations on the surface of the airport. The FAA stopped short of allow- ing airports to regulate the airspace above and near the airport with respect to UAS operations, however: Under 49 U.S.C. 40103, the FAA has the sole authority to regulate airspace, including airspace overlying an airport. While airport operators have the ability to manage opera- tions on the surface of the airport, airport operators may not regulate the use of airspace above and near the airport. In an effort to safely integrate small unmanned aircraft and manned aircraft at an airport, airport operators may recom- mend certain areas where small UAS operate, in order to avoid conflicts with manned aircraft. The FAA does not con- sider the notification of airport operators to significantly enhance the safety of integration with existing operations. The requirement for notification creates a burden on the airport operator with little benefit to users of the airport, because the airport operator would have no requirement to disseminate knowledge of small UAS operations to other airport users.413 In this context, the Experimental Aircraft Associ- ation, National Association of State Aviation Offi- cials, Minneapolis-Saint Paul Metropolitan Airports Commission, U.S. Hang Gliding & Paragliding Asso- ciation, the Permanent Editorial Board of the Avia- tors Model Code of Conduct initiative, and several individual commenters argued that the FAA should require operators intending to fly small UAS within five statute miles of airports in Class G airspace to notify airport authorities in advance of the opera- tions.414 These commenters said that such notifica- tion would allow airport authorities, in turn, to notify aircraft in proximity of the airport of the sUAS activ- ity.415 Other airport stakeholders argued that airport operators should be permitted to limit sUAS opera- tions on and around airports.416 The FAA has Smaller airports have also implemented web- based notification schemes. For example, Moffett Federal Airfield, a joint civil-military airport located in an unincorporated part of Santa Clara County, California provides an online “Drone Operation Notification Form” that not only requires basic oper- ator information (e.g., name, address, e-mail, home and mobile phone number), but also operational information, including date, time, and duration of flight, UAS make, model, and FAA registration num- ber, and confirmation of insurance.408 Finally, to manage low-altitude safety around air- ports, the AAAE partnered with startup AirMap in March 2016 on a Digital Notice and Awareness Sys- tem, or “D-NAS.” The GPS-capable digital tool deliv- ers real time information and has been described as a “quasi-flight planning and NOTAM system for participating [UAS] operators and airports, allowing UAS operators to send encrypted digital flight notices to the airport’s operations center.” 409 More than 50 airports have already joined the D-NAS pilot program, including Houston’s George Bush Intercontinental and William P. Hobby airports; Denver International Airport; Columbus Air Force Base in Mississippi; Charlotte Douglas Airport in North Carolina; Reno-Tahoe International Airport in Nevada; New Castle Airport in Delaware; Cape May Airport in New Jersey; Fairbanks International Airport in Alaska; and the Oxnard and Camarillo Airports in California.410 While airports have gener- ally embraced this technological fix to the issue of UAS notice, concerns persist over the legal question of whether an airport accepts liability for UAS oper- ation by accepting notice 411—an issue not addressed 408 Drone Operation Notification Form, https://docs. google.com/a/pv-nuq.com/forms/d/e/1FAIpQLSdnXCuI RUr0B5G6w3GwZ4lub8K5FkxNFn3evJo2XIOg6YJhJw/ viewform. See also NBCneWs, Google Takes Over NASA’s Moffet Airfield for Robot and Space Research, (Nov. 10, 2014), http://www.nbcnews.com/science/space/google-takes- over-nasas-moffett-airfield-robot-space-research-n245561 (reporting that Google subsidiary Planetary Ventures LLC will pay $1.16 billion in rent over 60 years for Moffett Field, a former U.S. Navy air base in the San Francisco Bay Area, to develop robots, drones, and other technologies). 409 AirMap Unveils Drone Digital Flight Notice Net- work, AINonline, (Mar. 30, 2016), http://www.ainonline. com/aviation-news/aerospace/2016-03-30/airmap-unveils- drone-digital-flight-notice-network. 410 Ben Popper, 850 Airports Sign Up for a Drone Notifi- cation System, the Verge, (Apr. 7, 2016), http://www. theverge.com/2016/4/7/11386350/airmap-airport-drone- notification-awareness-system. 411 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). See also Raymond B. Biagini et al., Cincin- nati/No. Kentucky First to Obtain Federal Safety Act Cov- erage, Airport mAgAzine, Dec. 2011/Jan. 2012, at 30. 412 See, e.g., nAt’l bus. AViAtion Ass’n, Going Rogue: How Can Airports Stop Errant Drones?, bus. AViAtion insider, Nov. 1, 2016, https://www.nbaa.org/ops/ uas/20161101-going-rogue-how-can-airports-stop-errant- drones.php; Troy A. Rule, Drone Zoning, 95 N.C. L. reV. 133 (2016); Michele C. Kirrane & Devinder S. Grewal, Drone Zone: Civil Liability Arising Out of the Ownership and Operation of Drones, 58 No. 4 dri for the defense 16 (2016). 413 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,149 (June 28, 2016). 414 Id. 415 Id. 416 Id.

51 Some local authorities are requiring UAS opera- tors to provide advance notice to airport operators given persisting uncertainty about how to proceed under the incrementally evolving and “phased-in” framework of federal UAS regulations. For example, in the City of Longmont, Colorado, Ordinance 13.39.040 identifies UAV flight as a “restricted activ- ity” such that operators must provide advance noti- fication to the airport manager before flying and fly in accordance with the specific requirements stipu- lated by the airport manager unless otherwise approved by agreement, aircraft operators and own- ers.419 The ordinance further states that UAV opera- tors “within five miles of the airport shall comply with all applicable legal requirements. This may include, but is not limited to, notifying and obtaining written permission from the airport manager to fly UAV or UAS within protected airspace.” 420 Mean- while, Cape May County Airport (WWD) near Wildwood, New Jersey, is the only airport in the country with a UAS designation on the aeronautical chart (see Figure 13) related to its operations—a safety conscious initiative, to be sure, but one that begs the question of whether remote pilots will even know to look for the designation in the first place: 421 specifically declined to require notification to the air- port under Part 107, however, providing instead: 417 • Because the NPRM did not contemplate prohibiting oper- ations within the vicinity of an airport in class G airspace, the FAA will not restrict small UAS operations within a specified distance from an airport. Rather, in response to concerns regarding the integration of small UAS and manned aircraft, this rule will prohibit remote pilots from operating their small unmanned aircraft in a manner that interferes with operations and traffic patterns at airports, heliports, and seaplane bases. • Because remote pilots have an obligation to yield right of way to all other aircraft and avoid interfering in traffic pat- tern operations, the FAA expects that most remote pilots will avoid operating in the vicinity of airports because their aircraft generally do not require airport infrastructure, and the concentration of other aircraft increases in the vicinity of airports. This scheme has created uncertainty about airport notification requirements related to UAS activity. Airport legal counsel have tried to make sense of the new regulatory environment as follows: 418 Operations authorized under Part 107 need only seek authorization from air traffic control in order to operate in the vicinity of an airport. [The requirement to obtain ATC authorization may be waived by the FAA upon application with appropriate supporting documentation establishing the safety of the operation.] Specifically, the new rule pro- hibits the operation of a small UAS “in Class B, Class C, or Class D airspace or within the lateral boundaries of the sur- face area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control (ATC).” * * * No prior authorization from ATC or the airport is required for UAS operations conducted pursuant to Part 107 on or in the vicinity of uncontrolled airports, heliports, or seaplane bases in Class G airspace. Rather, operators are prohibited by C.F.R. § 107.43 from “operat[ing] a small unmanned air- craft in a manner that interferes with operations and traffic patterns at [such facilities].” The FAA recommends that UAS operators avoid operating in the traffic pattern or pub- lished approach corridors used by manned aircraft, but oth- erwise requires the pilot to “operate 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 conflict.” 417 Id. at 42,148. 418 kAplAn kirsCh roCkWell, The FAA’s New Small UAS Rule: What Airport Sponsors and Local Governments Need to Know, http://www.kaplankirsch.com/News-Publications/ Publications/100701/The-FAArsquos-New-Small-UAS- Rule-What-Airport-Sponsors-and-Local-Governments- Need-to-Know. See also Airports CounCil internAtionAl- north AmeriCA, report of ACi-nA multi-Committee tAsk forCe on unmAnned AeriAl VehiCles (August 2016), at 6, http://www.aci-na.org/sites/default/files/2016-uavs-task- force-report.pdf. 419 longmont, Co, longmont muniCipAl Code, § 13.39.040.L.6. 420 Id. 421 See SkyVector, Aeronautical Charts, https://skyvec- tor.com/?ll=39.0085,-74.908583333&chart=301&zoom=3. Cape May County Airport is a general aviation airport with approximately 35,000 operations per year, WWD was county owned and operated until 1999, when the Dela- ware River & Bay Authority took over its management. In this context, WWD underscores challenge that airport ownership presents for airports relative to UAS. Some air- ports are publicly owned and operated while others may be held and managed privately. Allowing and managing UAS operations near such airports may require the coor- dination of various state, local, and municipal govern- ments and authorities. Figure 13. WWD Sectional and UAS Designation

52 UAS Facility Maps show the maximum altitudes around airports where the FAA may authorize Part 107 UAS operations without additional safety anal- ysis.428 The maps should be used to inform requests for Part 107 airspace authorizations and waivers in controlled airspace.429 Importantly, however, the maps themselves do not authorize operations in these areas at the depicted altitudes as they are for informational purposes only.430 Requests to operate in controlled airspace (Class B, C, D, or surface area E) must still be submitted through the FAA’s Online Waiver Portal.431 Individuals who request a Part 107 airspace waiver and authorization are encouraged to consult the maps prior to submitting a request to determine locations and altitudes that can be approved quickly.432 The maps will be published in phases, starting with Class E airport maps (published April 27, 2017).433 The FAA release of UAS Facility Maps marked an important first step as the FAA works with industry to automate the airspace authorization process.434 The maps are designed to help drone operators improve the quality of their Part 107 airspace autho- rization requests and help the FAA process the requests more quickly.435 The maps are informational and do not give people permission to fly drones.436 Remote pilots must still submit an online airspace authorization application (see Figures 15 and 16).437 In the final analysis, the absence of any regulatory requirement of notice of UAS operations in non- towered Class G Airspace proximate to airports is a major issue for many airport operators. “Dangerous” is how one airport manager described the situation: “What’s to prevent somebody from flying at the end of my runway?” 422 Indeed, while the FAA has asserted exclusive jurisdiction over the NAS—that is, all air- space “above the grass” 423—airport operators and spon- sors have expressed concern about a regulatory scheme that allows them to stop an operator from launching a UAS, but not from flying near or around the airport.424 3. UAS Facility Maps On April 27, 2017, the FAA announced that it had published more than 200 facility maps (see Figure 14) to streamline the commercial drone authoriza- tion process.425 The maps depict areas and altitudes near airports where UAS may operate safely. But drone operators still need FAA authorization to fly in those areas.426 422 Telephone Interview of Executive Director of a Regional Airport, Sept. 27, 2016, on File with Author (con- tending that safety is all about layers and that by taking the airport out of this, the FAA—which has limited staff to deal with UAS operators in the first place—has given air- ports “no teeth” in enforcing safe operations of UAS). 423 Tara Kalar & Rick Braunig, Municipal Drone Issues in Minnesota: Navigating the Changing Rules and Regu- lations that Guide UAS (Drone) Use, Dec. 2016. 424 Id. 425 fed. AViAtion Admin., FAA Publishes First Set of UAS Facility Maps, https://www.faa.gov/news/updates/ ?newsId=87945. 426 Id. 427 https://www.faa.gov/uas/request_waiver/uas_facility_ maps/media/Class_E_UASFM.pdf. 428 fed. AViAtion Admin., UAS Facility Maps, https:// www.faa.gov/uas/request_waiver/uas_facility_maps/. 429 Id. 430 Id. 431 See https://www.faa.gov/uas/request_waiver/. 432 Id. 433 Id. 434 fed. AViAtion Admin., FAA Publishes First Set of UAS Facility Maps, https://www.faa.gov/news/updates/?newsId =87945. 435 Id. 436 Id. 437 Id. See also http://uas-faa.opendata.arcgis.com/. Figure 14.427 Example UAS Facility Map Figure 15. FAA UAS Online Airspace Authorization

53 will require further coordination and FAA safety analysis, which can result in additional safety miti- gations to be complied with by the drone opera- tor.441 Remote pilots can refer to the maps to tailor their requests to align with locations and altitudes when they complete airspace authorization appli- cations.442 This will help simplify the process and increase the likelihood that the FAA will approve their requests.443 FAA air traffic personnel will use the maps to process Part 107 airspace authorization requests.444 Altitudes that exceed those depicted on the maps require additional safety analysis and coordination to determine if an application can be approved.445 Additional maps will be published every 56 days through the end of the year.446 The updates will coin- cide with the agency’s existing 56-day aeronautical chart production schedule.447 B. Aeronautical Activity: UAS Revenue Generation and Grant Assurances In terms of UAS operations over, near, at, and around airports, much attention is rightly focused on safety. However, percolating underneath this prudential concern is the possibility of revenue gen- eration. An attorney for a state government trans- portation agency foresees fixed-based operations for drones on airport property, for example, along with “UAV clusters” that attract and serve manufactur- ers and operators to indoor testing facilities and laboratories for nearby high-school STEM students, for example.448 In other words, while drones may never generate the type of passenger traffic and commerce as traditional manned and piloted avia- tion, airports may derive revenue in the form of leas- ing arrangements with manufacturers, operators, and owners of UAS. If and how these types of trans- actions would impact airport owners and sponsors, planning agencies, or other entities eligible to receive funds from FAA-administered airport finan- cial assistance programs is unclear at this early stage of UAS development. The Preamble to Part 107 may offer some guid- ance. There, the FAA stated that, “[l]ike ballooning, skydiving, banner towing, and other non-traditional 441 Id. 442 Id. 443 Id. 444 Id. 445 Id. 446 Id. 447 Id. (https://www.faa.gov/air_traffic/flight_info/aeronav/ productcatalog/doles/media/Product_Schedule.pdf). 448 See note 422 and accompanying text, supra. Figure 16. UAS Facility Map Decision Flow Chart* * https://www.faa.gov/uas/request_waiver/uas_facility_maps/flow_chart/. Operators may download the map data in sev- eral formats, view the site on mobile devices, and customize their views.438 The map viewer displays numbers in grid cells which represent the distances AGL in one square mile up to 400 feet where drones may fly.439 Zeros indicate critical locations around airports and other aircraft operating areas, like hospital helipads, where no drone flights can be preauthorized.440 Requests to operate in these areas 438 Id. 439 Id. See also Figure 14, supra. 440 Id.

54 • Finally, an open question exists as to whether FAA prohibitions against unjust discrimination and granting exclusive rights will apply to the operation of drones on airports. As a preliminary matter, some gray area exists as to whether UAV operations are aeronautical as some UAV opera- tions do not require traditional airport infrastruc- ture (e.g., runways and taxiways) to operate and could take place off-airport. While the FAA Office of Airports has not yet issued written guidance on this issue, existing written guidance states that airport operators may not prohibit UAV operations at an airport by UAV operators who have received an FAA COA to do so.455 Airport counsel will also need to consider whether these grant assurances will form the basis for estab- lishing a standard of care in litigation or compel the creation or revision of minimum standards custom- ized for UAS operation.456 C. Safety: Detection and Counter-UAS Technology Regulators have raised alarms about drones con- flicting and nearly colliding with passenger jets and other aviation traffic. In fact, in 2015, the FAA released a report of 650 “possible encounters with unmanned aircraft” between November 2014 and August 2015—with drone “sightings” estimated as high as 100 a month in 2015—five times as many as one year earlier. Some industry analysts challenged this report as unsupported by hard data. For starters, most reported drone encounters occurred above 3,000 feet—well above the 500-foot ceiling established for commercial UAS and 400 feet aeronautical activities, the FAA expects that remote pilots will work with airport operators to identify ways to safely integrate small UAS operations into the flow of other operations at the airport.” 449 Airport stakeholders have read this as strongly suggesting the FAA will consider UAS operations at airports to be aeronautical activities that must be accommo- dated at federally obligated airports as a grant assurance. If correct, airport counsel will need to think most about compliance with grant assurances, particularly assurances nos. 19, 20, 21, and 22: 450 • Will Grant Assurance 20 (Hazard Removal and Mitigation) and Grant Assurance 21 (Compat- ible Land Use) be interpreted to obligate airport sponsors to take locally-based action to protect the safety of approach and departure flight paths from UAV intrusions? 451 While the FAA’s Office of Airports has not formally addressed this issue, Airport Council International-North America has reported that informal discussions with the FAA indicate that these grant assurances have histori- cally applied to ground-based obstructions/devel- opment, such as buildings, antennas, trees.452 • To the extent UAS activity is aeronautical ac- tivity (or involves commercial aeronautical activi- ties) airports are not permitted to prohibit UAS operations outright as doing so would be a viola- tion of Grant Assurance 22. Titled “Economic Dis- crimination,” Grant Assurance 22 provides that airport sponsors must “make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, includ- ing commercial aeronautical activities offering ser- vices to the public at the airport.” 453 The FAA has not yet finalized a definition of what constitutes aeronautical activity for the purpose of grant as- surances in the new area of UAS flight, however.454 449 Telephone Interview of Executive Director of a Regional Airport, Sept. 27, 2016, on File with Author (con- tending that safety is all about layers and that by taking the airport out of this, the FAA—which has limited staff to deal with UAS operators in the first place—has given air- ports “no teeth” in enforcing safe operations of UAS). 450 fed. AViAtion Admin., Assurances: Airport Sponsors, https://www.faa.gov/airports/aip/grant_assurances/media/ airport-sponsor-assurances-aip.pdf. 451 See also Airports CounCil internAtionAl-north AmeriCA, report of ACi-nA multi-Committee tAsk forCe on unmAnned AeriAl VehiCles (August 2016), at 18. 452 Id. 453 See fed. AViAtion Admin. Assurances: Airport Spon- sors, https://www.faa.gov/airports/aip/grant_assurances/ media/airport-sponsor-assurances-aip.pdf. 454 The FAA defines an aeronautical activity as: Any activity that involves, makes possible, or is required for the operation of aircraft or that contributes to or is required for the safety of such operations. Activ- ities within this definition, commonly conducted on air- ports include, but are not limited to, the following: gen- eral and corporate aviation, air taxi and charter operations, scheduled and nonscheduled air carrier operations, pilot training, aircraft rental and sightsee- ing, aerial photography, crop dusting, aerial advertising and surveying, aircraft sales and service…parachute or ultralight activities, and any other activities that, because of their direction relationship to the operation of aircraft, can appropriately be regarded as aeronauti- cal activities. Activities such as model aircraft and model rocket operations are not aeronautical activities. fed. AViAtion Admin., Advisory Circular 150/5190-6, Appendix 1 §1.1 (Jan. 4, 2007). 455 See also Airports CounCil internAtionAl-north AmeriCA, report of ACi-nA multi-Committee tAsk forCe on unmAnned AeriAl VehiCles (Aug. 2016), at 14. 456 E.g., Eric Smith, Kaplan Kirsch & Rockwell, Unmanned Aerial Systems & the Airport Sponsor, May 17, 2016.

55 over, near, at, and around airports.461 For example, in Britain, Blighter Surveillance Systems has devel- oped the Blighter A400 series air security radars for UAS detection462 while SRC manufactures the Silent Archer Counter-UAS system domestically.463 UAS detection capabilities also have been or soon will be tested at airports in Denver,464 Atlantic City, New York, and Dallas.465 More exotically, overseas, Holland has deployed a team of eagles to take down rogue drones.466 Whatever the defensive system, only the minority of airports appear to be involved in counter-drone initiatives in the United States. In response to a 2016–2017 poll asking members of the AAAE whether their airport has any anti-drone or UAS countermeasures in place, 90% of the respon- dents answered no. While only three respondents pro- vided narrative responses, they seemed to capture the universe of options for UAS airport countermeasure— suggesting that: (1) mitigations and countermeasures of arguable effectiveness already exist; (2) mitigation is not allowed; or (3) mitigations exist but are illicit: • ATC published a “no drone zone” map for local operators. • It is our understanding that we cannot say no to any oper- ations, just discourage the operation. • No comment. recommended for model aircraft. Moreover, as argued in an Aviation Week and Space Technology editorial: “[t]he FAA did itself no favors by releasing a list of 650 ‘possible encounters with unmanned aircraft’ between November 2014 and August 2015. This mixes pilot sightings close to airports, where the threat is highest, with passing encounters and reports from air traffic controllers and the public. It is good for grabbing headlines, but not for defining dangers.” 457 Perhaps so, but in 2016, headlines of drone encounters with commercial jets persisted as a Porter Airlines Bombardier Q400 twin-prop report- edly swerved over Canadian airspace to avoid collid- ing a drone; two cabin crew were injured, making the incident perhaps the first reported example of per- sonal injury caused by a near collision with a drone.458 Whatever the data, the U.S. Department of Transportation announced in late 2015 that it had decided to enforce the statutory requirement that all aircraft (including UAS) must be registered due, in part, to the influx of new sUAS users in the NAS. The DOT also created new regulations (in 14 C.F.R. Part 48) streamlining the registration process for small UAS.459 To implement this registration scheme, the FAA convened a task force of industry stakeholders to make formal recommendations about which “aircraft should be exempt from regis- tration due to a low safety risk, including toys and certain other small UAS.” 460 The task force was given only 30 days to produce their recommendations; the short turnaround was justified on the basis of the FAA’s prediction that millions of new drones would be sold during the holiday season to potentially many irresponsible or uninformed flyers. Alongside these government efforts, airports and private companies are themselves devising strate- gies to counter the risk posed by UAS operations 457 E.g., Better Data Needed on Risks Small UAS Pose to Air Traffic, AViAtion Wk. & spACe teCh. Sept. 14–27, 2015, at 86. See also Chris Whitlock, FAA Records Detail Hun- dreds of Close Calls between Airplanes and Drones, WAsh. post, Aug. 20, 2015, https://www.washingtonpost.com/ world/national-security/faa-records-detail-hundreds-of- close-calls-between-airplanes-and-drones/2015/08/20/ 5ef812ae-4737-11e5-846d-02792f854297_story.html? utm_term=.4d865a835c80. 458 Crew Members Injured as Plane Avoids Near Colli- sion with Suspected Drone, the guArdiAn, Nov. 14, 2016, https://www.theguardian.com/world/2016/nov/14/toronto- airport-drone-incident-injuries-canada. 459 Clarification of the Applicability of Aircraft Registra- tion Requirements for Unmanned Aircraft System (UAS) and Request for Information Regarding Electronic Regis- tration for UAS, 80 Fed. Reg. 63,912, October 22, 2015. But see footnote 70, supra. 460 fed. AViAtion Admin., U.S. Transportation Secretary Anthony Foxx Announces Unmanned Aircraft Registration Requirement, Oct. 19, 2015, https://www.faa.gov/news/ press_releases/news_story.cfm?newsId=19594. 461 Who will bear the responsibility to fund counter- drone technologies at airports is not yet known. Am. Ass’n of Airport exeCutiVes, UAS Issues and Integration Confer- ence, Nov. 9–11, 2016 (comments of Victoria Wei, Deputy Director, Fed. Aviation Admin., Office of Airport Planning and Programming). 462 E.g., http://www.blighter.com/products/auds-anti-uav- defence-system.html. 463 E.g., http://www.srcinc.com/what-we-do/ew/silent- archer-counter-uas.html. 464 E.g., Deborah D. McAdams, FAA Tests Drone Zappers at Denver Int’l Airport, TVteChnology, (Nov. 22, 2016), http://www.tvtechnology.com/news/0002/faa-tests-drone- zappers-at-denver-intl-airport/279898; Laura Hautala, FAA Tests Antidrone Tech at Denver International Airport, CNET, (Nov. 16, 2016), https://www.cnet.com/news/faa- federal-aviation-adminstration-drones-airports-safety/. 465 See, e.g., fed. AViAtion Admin., FAA Evaluates Drone Detection Systems at DFW, https://www.faa.gov/news/ updates/?newsId=87949 (“The FAA intends to use the information gathered during this assessment and other previous evaluations to develop minimum performance standards for any UAS detection technology that may be deployed in or around U.S. airports. These standards are expected to facilitate a consistent and safe approach to UAS detection at U.S. airports.”). See also FAA Expands Program to Detect UAS Near Airports, Airport mAgAzine, June/July 2016, at 6 (“FAA signed agreements with Gry- phon Sensors, Liteye Systems and Sensofusion to evalu- ate their technologies designed to identify unauthorized UAS operations in and around airports.”). 466 Amar Toor, Holland’s Drone-Hunting Eagles are Ready to Fly, the Verge, (Sept. 13, 2016), http://www. theverge.com/2016/9/13/12900596/netherlands-drone- hunting-eagles.