Michael Kamprath is Assistant General Counsel, Hillsborough County Aviation Authority. J.D. University of Florida, M.S., B.S.E., B.A. Case Western Reserve University. The views expressed herein are the author’s personal views and do not reflect the position or policy of the Hillsborough County Aviation Authority. The author wishes to thank Eric Smith, Kaplan Kirsch and Rockwell, Washington D.C., for his thought-provoking outline.
IN 2016, THE NUMBER OF UNMANNED AERIAL SYSTEMS (UAS) ECLIPSED THE NUMBER OF AIRPLANES registered in the United States.1 Today, there are more than two registered UAS for each registered manned aircraft.2 UAS have become ubiquitous and could pose a very real threat to manned aircraft if there were a collision. “Unmanned aircraft including model aircraft, many pose a hazard to manned aircraft in flight and to persons and property on the surface if not operated safely.”3 A flock of geese cut the engines on Sully’s plane.4 “[D]rones are more like mechanical geese from hell.”5 They are similar to rocks going through an engine that can leave “an engine blade deformed, broken, or completely fragmented” or even if the engine itself is unscathed, can cause it to be unbalanced and to ricochet inside its casing.6 Not only are engines at risk, tests have shown that upon contact with the nose of a plane, an UAS could become embedded and that the batteries inside UAS pose a real risk of “burst[ing] into flames when damaged.”7
Without appropriate safeguards, as the number of UAS continue to grow, the risks of UAS-manned aircraft collision also increase. Pilots reported sighting 238 UAS in 2014 and more than 650 UAS through August 2015.8 These sightings have not slowed down:9 there were 1274 sightings from February to September 2016.10 The risks related to UAS-manned aircraft interaction are greatest at low altitudes when manned aircraft are landing and taking-off because these are the altitudes that the vast majority of UAS operate and the altitudes where manned aircraft have minimal time for recovery.11 The FAA recognizes that “drones that enter the airspace around airports can pose serious safety threats” and is evaluating technical solutions.12 Unfortunately, even if the technical solutions are worked out, they will not solve the regulatory and enforcement problems presented by UAS.
Regulation of UAS is in its infancy. Questions of federalism and preemption permeate UAS regulation and the Federal Aviation Administration (FAA) has not been wholly consistent.13 Although, one of the FAA key mandates is to protect safety,14 the FAA’s response to potential UAS manned flight conflicts in the National Airspace System (NAS) near airports has been lacking.15 There are a number of reasons for this poor response. In part, Congress tied the FAA’s hands when it comes to non-commercial UAS operations16 leaving what some have called a massive loophole in UAS operations regulations.17 Additionally, industry lobbying groups have advocated for FAA to come out strongly against state and local regulation of UAS. Resultantly, the FAA has argued against state and local regulation of airspace: “navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system” and implied it has preempted the field.18