Urban Lawyer

A Legal and Practical Overview of How Local Governments Can Help Protect the Safety of Manned Flight in the Vicinity of Airports

by Michael Kamprath

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

There is still room for state and local regulation.19 None of the three categories of preemption (express preemption, field preemption, and conflict preemption) applies to land use and zoning regulation of UAS.20 Express preemption occurs when Congress has expressly stated it is preempting the area. Field preemption occurs “[w]hen Congress intends federal law to “occupy the field.”21 Conflict preemption can be found when “it is impossible for a private party to comply with both state and federal law, and where “under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.””22 The Supreme Court has found that determining whether the obstacle is significant “is a matter of judgment to be informed by examining the federal statute as a whole and identifying its purpose and intended effects[.]”23

There is no express Congressional preemption for UAS unless they are “used commercially to transport property for compensation across state lines,” then “the Deregulation Act preempts any state regulation related to its price, routes, or services.”24 FAA implied field preemption applies to “[o]perational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace.”25 However, there is a carve-out for non-commercial UAS within the FAA Modernization and Reform Act of 2012 (FMRA) that leaves space for state and local governments to act.26

Others agree that FAA’s implication that it has preempted the field is a stretch.27 Keep in mind that it is state and local governments that determine “where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed” and it is the state and local governments that incur the attendant takings liability for aircraft noise based on these decisions.28 These state and local governments — not the federal government — then make the decisions about the location of the low altitude flights in and out of their communities by choosing the location of their airports and runways. These state and local governments own airports and make aviation related decisions that affect their communities. Furthermore, it is the same state and local governments that own and operate airports that are required to protect the airspace near their federally obligated airports. And it is these state and local governments that are interested in protecting their investments in their airport infrastructure by insuring nothing impacts the utility of their airports.

This article argues that Congress has not occupied the entire field of UAS regulation in the NAS29 and state and local regulation of model UAS operations near airports is appropriate to help protect the safety of manned flight. To begin with, Congress has explicitly allowed for the regulation of noncommercial30 UAS through promulgation of community-based safety guidelines.31 Second, the FAA has delegated the responsibility to protect the airspace surrounding their facilities to their grant obligated airports via grant obligations.32 Third, there is a significant resource allocation problem created by the sheer numbers: the federal government does not have the resources to address the risks posed by the hundreds of thousands of UAS that exist today let alone the millions that are expected to enter the NAS over the next five years.33 Consequently, a coordinated response between the federal government and state and local governments is necessary.34 Fourth, the FAA has created a robust regulatory framework to govern commercial UAS operations and required education regarding airspace and rules to mitigate potential conflicts and licensure for commercial operators. But, the noncommercial UAS operators (who are not engaged in commerce and do not require the same education before they fly) require a different approach when it comes to regulation and enforcement of applicable rules to protect the NAS.35 Land use and zoning regulation, as an exercise of local government police powers, is the most appropriate means to protect airspace near airports because it will provide local law enforcement officers the tools they need to police UAS flights near airports. Furthermore, UAS operators are engaged in land use because they control the UAS from the ground and local communities have always had a say in the location of the airports and heliports.36 The FAA has acknowledged that local land use and zoning regulations fall within the ambit of police powers not preempted by the federal government.37

This article does not address other grounds upon which state and local governments likely have the police power to regulate UAS including restrictions on surveillance, prohibitions on voyeurism, hunting and fishing limitations, and prohibitions on attaching firearms to UAS because FAA generally acknowledges that state and local governments are not preempted in these areas.38 Nor does this article address larger policy driven questions raised by UAS operations.39 This article does address a narrow area in airport terminal airspace where there is a lack of clear regulation that raises potential enforcement and safety issues associated with manned aircraft and non-commercial UAS operations in the same vicinity.

I. UAS are Federally Regulated Aircraft

“ ‘National Airspace System’ (NAS) means the common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. Included in this definition are system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.”40 Although the United States has declared that it has exclusive sovereignty of airspace of the United States,41 it regulates the NAS under authority granted to it via the Commerce Clause.42 It remains an open question whether the NAS extends down to the ground everywhere or just at airports and heliports.43 Regardless of the answer to that question, Congress has directed the Administrator of the Federal Aviation Administration (Administrator) to prescribe air traffic regulations on the flight of aircraft for: “(A) navigating, protecting, and identifying aircraft; (B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles; and between aircraft and airborne objects.”44 The Administrator must “promote safe flight of civil aircraft in air commerce” and carry out his or her duties in a way that “tends reduce or eliminate the possibility or recurrence of accidents in air transportation.”45 These goals are accomplished through a significant number of formal FAA regulations, informal advisory circulars46 and, in the case of Airports, contractual grant assurances.47

This broad authority has led the FAA to imply that field preemption applies to UAS regulations in the NAS.48 The courts have pushed back. “Congress surely understands that state and local authorities are (usually) well positioned to regulate what people do in their own backyards. The Constitution creates a limited national government in recognition of the traditional police power of state and local government. No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground.”49 Congress has stated the non-commercial UAS can be regulated based on community-based standards.50

Thus, there remains a great deal of uncertainty. UAS were determined to be aircraft because: “An aircraft is any device that is used for flight.”51 Section 14 CFR Part 91 governs the operations of aircraft. Violations of these regulations could endanger safety in the NAS. Actions that could create risk between Manned Aircraft and UAS are largely prohibited by existing federal regulations. An example of regulations governing manned aviation safety includes, a prohibition for aircraft operating below 1000 feet above the highest obstacle within a horizontal radius of 2000 feet and in congested areas and 500 feet above the surface except when taking off or landing.52 (This regulation does not make much sense for UAS who must operate below 400 feet above ground level (AGL).) Aircraft are also forbidden from operating so close to each other to create a collision hazard.53 Likewise, the operation of an aircraft in a “careless or reckless manner so as to endanger the life or property of another” is prohibited.54 Dropping objects that create a hazard to persons or property is also banned unless reasonable precautions are taken to avoid injury or damage to persons or property.55 These could all be examples of operations that endanger the safety of the NAS. “No person may operate model aircraft so as to endanger the safety of the national airspace system.”56 Part 91 provides some guidance to UAS operators to discern how a UAS could endanger the NAS.

II. UAS Regulation in a Nutshell

The existing federal framework for regulation and control of aircraft in the NAS was not designed with UAS as a component. FAA regulation of UAS stems from FMRA, which provides the basic framework to bring UAS into the NAS. Currently, there are five primary categories of UAS operation:

  1. FMRA § 333 Operations
  2. 14 CFR Part 107 Operations
  3. Public Aircraft Operations
  4. Operations under an Airworthiness Certificate
  5. FMRA § 336 Operations

What follows is a brief review of each of these recognized categories of UAS operations with a slightly deeper focus on FMRA § 336 operations. FMRA § 333 directs the Secretary of Transportation to “determine if certain unmanned aircraft systems may operate safely in the national airspace system”.57 It opened the door to commercial UAS operations in the NAS. It created the Certificate of Waiver or Authorization (COA) process. This process is relatively complex and in depth. To relieve some of these burdens, the FAA created a UAS exemption under FMRA § 333 upon certain conditions58 and granted a blanket COA for flights at or below 400 feet except in restricted airspace.59

FAA then promulgated 14 CFR Part 107 to further regulate commercial operations of UAS in the NAS. If § 333 opened the door, this rule opened the floodgates for commercial operations. Part 107 has stringent requirements60 including limiting operations to a maximum altitude of 400 feet AGL or within 400 feet of a structure.61 This rule prohibits any person from operating a “small unmanned aircraft in a manner that interferes with operations and traffic patterns at any airport, heliport, or seaplane base.”62 In addition to the operational requirements, the remote pilots in command must be certified by the FAA. Part 107 does not require notification of Airport Operators of UAS operations in Airport vicinities however depending on the Airspace of the UAS operation, Air Traffic Control may require notification.63 If someone wishes to operate outside of the parameters of Part 107, there is a waiver process or he or she could avail themselves of the Section 333 process. The key requirements for Part 107 operation are that the “operator must be certified and the small UAS must be registered.”64 Thus, through the 333 COAs and Part 107 operations, the FAA has developed a fairly robust regulatory regime governing commercial operations of UAS within the NAS by requiring training, coordination with Air Traffic Control and limiting altitudes, mitigated potential manned aircraft — UAS conflicts.

Different rules apply to public use of UAS in the NAS and are beyond the scope of this article. Government entities may fly: (1) under the small UAS Rule, Part 107, (2) under a public COA that permits flights in Class G airspace at or below 400 feet or (3) via an emergency COAs in special circumstances.65

The other method to obtain approval to fly an UAS in the NAS is through a Special Airworthiness Certificate. FAA Order 8130.34C provides the process. It “establishes procedures for issuing special airworthiness certificates in the experimental category or special flight permits to unmanned aircraft systems (UAS), optionally piloted aircraft (OPA), and aircraft intended to be flown as either a UAS or an OPA, under the designation “OPA/UAS.”66 A special airworthiness certificate is primarily granted to civil aircraft to allow for “research and development, crew training, and market surveys.”67 Certain commercial operations are prohibited. FAA imposes other flight restrictions on operations.68

III. License? I Don’t Need No Stinkin’ License

These types of UAS operations (FMRA § 333, Part 107, Public and Airworthiness Certification) are a drop in the bucket compared to overall UAS operations. The majority of UAS are noncommercial69 and herein lies the biggest safety concern. “The exclusion of model aircraft from FAA regulation has major impacts on security within the NAS and on the ground.”70 FMRA § 336 created an exemption for model aircraft operations that meet certain criteria. It defined model aircraft to include an unmanned aircraft “that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”71 It provided certain restrictions on the operations of model aircraft that include:

  1. the aircraft is flown strictly for hobby or recreational use
  2. the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization
  3. the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization
  4. the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft
  5. when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).72

Note that flights near airports are not prohibited operations although noncommercial UAS operators must provide notice. There is fear that there is significant non-compliance with the notice provision.73 FMRA ties the FAA’s hands when it comes to regulation of UAS because it explicitly states that the Administrator of the FAA may not promulgate any rule or regulation regarding a model aircraft.74 The FAA has found a workaround by broadly interpreting the caveat in paragraph (b) that nothing in this section would prevent the FAA “to pursue [an] enforcement action against persons operating model aircraft who endangers the safety of the NAS.”75 Unlike the other UAS Operators, model operators do not require licensure.76 The OIG has criticized the FAA for its lack of enforcement in the UAS space.77

In December 2015, FAA adopted a rule that required recreational UAS operators to register their UAS and pay a $5 fee. Failure to comply could result in civil or criminal penalties.78 FAA also published an Advisory Circular to provide additional guidance to non-commercial UAS.79 It states that the FAA has the ability to bring enforcement actions against noncommercial UAS to enforce compliance with various flight restrictions including Temporary Height Restrictions and to enforce compliance with Flight Rule Areas and enforce compliance with Notices to Airmen (NOTAMs).80 It also states: “Model Aircraft should follow best practices including limiting operations to 400 feet above ground level” leaving an open question whether Model UAS operations above 400’ AGL would per se endanger the safety of the NAS and then be subject to FAA’s enforcement mechanism.81

John Taylor challenged the registration rule and the restrictions contained in the Advisory Circular.82 The D.C. Circuit held that the Registration Rule violated FMRA § 336 because it is a rule or regulation restricting a model aircraft.83 The Court acknowledged that “Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system”” but did not connect the registration rule with safety.84 With respect to the Advisory Circular, the court found a procedural defect in that Mr. Taylor failed to challenge it within 60 days.85 As a result, it did not reach the merits on it and it still stands.86 Arguably, under the standards announced in Taylor, the Advisory Circular would survive challenge since it focuses on setting forth rules for operations of UAS that can be tied back to safety in the NAS.

IV. State and Local Governments are Best Poised to Respond to Non-Commercial UAS in the Terminal Vicinity

The FAA implied it has preempted the field concerning the operation or flight of aircraft.87 Courts have broadly interpreted the Commerce Clause grant of authority to allow regulation of potential threats to aviation operating in interstate commerce.88 As a result, the federal government has a stronger interest in the airspace near airports than other airspace. This is borne out by the FAA’s regulatory regime where the most restricted airspace surrounds the busiest airports.89 However, the airspace around airport terminals, approach corridors and departure corridors is regulated by local government too; especially with respect to preventing obstructions to air navigation. For instance, 14 CFR § 77.98 requires Airports to Protect space above imaginary surfaces used for departures and arrivals from obstructions. The FAA requires notice for all construction 200 feet above ground level. However, FAA does not have enforcement under 14 CFR Part 7790 and relies on the grant assurances it receives from Airports to protect the airspace above the 14 CFR Part 77 surfaces used for departures and arrivals. So although the Federal Government may have a very strong interest in the airspace near airport terminals, it is not an exclusive interest.

As a result, the FAA expects Airport Sponsors91 to play a major role in protecting airspace around their facilities via the grant assurance process. In exchange for various federal grants, federally obligated airports are responsible to:

  • “[B]e operated at all times in a safe and serviceable condition …” and not “cause or permit any activity or action thereon which would interfere with its use for airport purposes.”92
  • “[T]ake appropriate action to assure terminal airspace is cleared and protected by removing existing hazards and preventing future hazards.”93
  • “[T]ake appropriate action, to the extent reasonable, to restrict the use of land in the vicinity of the airport to activities compatible with normal airport activities.”94

It is uncertain whether these specific requirements would create a legal duty for Airport Sponsors to address UAS. On their face, it appears that Airport Sponsors must play a role in regulating UAS in their terminal airspace and vicinity, however, the FAA issued conflicting guidance on December 17, 201595 taking a “bold position”96 implying that local or state restrictions on “flight altitude, flight paths; operational bans; [and] any regulation of the navigable airspace,” could be preempted and at the very least require consultation with the FAA.97 The FAA’s approach of going alone with respect to UAS regulation and broadly implying local authority is preempted has been criticized as impractical and inefficient.98

V. No One Is Guarding the Henhouse

The risk for manned aircraft-UAS conflict is real and reports of near misses are common.99 There is no uniform mechanism (technologically or otherwise) in place to monitor the millions of UAS flights that are occurring. One such technological solution, requiring ADS-B100, was rejected by the FAA in its Part 107 rulemaking process as too costly.101 As a result, collision avoidance for UAS largely relies on the UAS operator.102 This is a problem if the operator is inexperienced, is not aware of rules and regulations; chooses to ignore the rules and regulations; or is a bad actor.

Likewise, there is no good enforcement mechanism for hobbyist and model violators. FMRA § 336 states that the Administrator may pursue enforcement actions against persons operating model aircraft who endanger the safety of the NAS.103 It is a federal crime to willfully damage, destroy, disable or wreck any aircraft.104 But it would not be a criminal act to negligently do so? It is a criminal act to violate the National Defense Airspace.105 There is no such corresponding crime related to violating airport terminal airspace. To exacerbate matters, FAA’s hands are tied with its administrative remedies because the model and hobbyist UAS operators are not licensed by the FAA.106 And now recreational UAS vehicles are no longer required to be registered.107 It is a violation of 14 CFR 91.13 to operate an aircraft in a careless or reckless manner. After Taylor, does 14 CFR 91 apply to recreational UAS operators? The FAA recognized these limitations pre-Taylor by emphasizing that “most violations of FAA’s regulations may be addressed through administrative enforcement measures.”108 It is telling that #5 on the Law Enforcement Officer Guidance checklist is “take action based on local laws ordinances.”109 Federal enforcement options were limited and now post-Taylor are even more uncertain. OIG questioned whether the FAA has the resources or willpower to take comprehensive enforcement action.110

The FAA’s Law Enforcement Guidance for Suspected Unauthorized UAS Operations issued on August 11, 2016 sums up the difficulties faced by Law Enforcement related to suspected violations of UAS rules and regulations:

It is extremely difficult to provide a “one size fits all” guide to cooperative investigation of suspected unauthorized UAS operations considering the myriad jurisdictions and the associated statutory and constitutional restraints and requirements. State and local officials are urged to use their governmental unit’s legal resources and their own management chain to develop acceptable protocols for dealing with these instances.111

And so, on the Law Enforcement Side, it appears that the FAA is pleading for help in enforcement. Although FAA’s hands may be tied when it comes to regulation of noncommercial UAS, state and local governments have the authority to regulate UAS.112 The FAA has recognized that “certain legal aspects concerning small UAS use are best addressed at the State or local level because they are within state and local police power.”113 They include:

Laws traditionally related to state and local police power — including land use, zoning, privacy, trespass, and law enforcement operations — generally are not subject to federal regulation.


Examples include:

  • Requirement for police to obtain a warrant prior to using a UAS for surveillance
  • Specifying that UAS may not be used for voyeurism.
  • Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
  • Prohibitions on attaching firearms or similar weapons to UAS (emphasis added).114

Since all non-commercial operations must maintain line of sight or they are not model aircraft under Section 336 and should fly no greater than 400 feet AGL,115 land use and zoning regulations limiting or prohibiting certain UAS flights, to the extent that they articulate communitybased safety guidelines, are appropriate exercises of State and Local Government Police Power. Such land use or zoning regulations could assure that no activities are permitted that would interfere with the use of the Airport for Airport purposes, assure that the terminal airspace is cleared and protected by preventing hazards, and appropriately restrict the use of land in the vicinity of the airport to activities compatible with normal airport activities. These regulations can regulate activities at the surface and prohibit an operator using land to operate an UAS in airspace that above the 400’AGL threshold.

The Supreme Court has stated that airspace can be owned “at least as much of the space above the ground as he can occupy or use in connection with the land.”116 It is doubtful that FAA’s exclusive jurisdiction in the NAS extends down to the blades of grass immediately above the ground. Model UAS operations, in order to be in compliance with FMRA § 336, must be operated below 400’AGL,117 within the line of sight of the operator118 and without interfering with manned aircraft.119 FAA’s exclusive jurisdiction may not extend this far since it is below the 500’ AGL minimum standard for manned flight. In order to operate, the majority UAS are launched and retrieved from land and therefore properly the subject of land use regulations. This attendant land use by the operator in a UAS line of sight operation is the fundamental distinction between UAS and traditional airplanes and helicopters which are operated from the airspace once airborne. Airport siting decisions are local and once sited, airports require massive amounts of community investment to remain operational. Airport sponsors have a safety and investment obligation to protect that infrastructure from structures or other objects that could interfere with the airport’s utility. This is accomplished through land use and zoning regulations in the vicinity of their airports. Most state and local governments have height zoning frameworks that exist for buildings and other objects (i.e. trees) in their vicinity.120 These regulations provide distinct zones within which certain heights are not allowed. These laws or ordinances help airport sponsors comply with grant obligations 19, 20 and 21. State and local governments have decades of experience working cooperatively with the Federal Government to protect airspace near airports from structures and other objects.

A very simple regulation could prohibit using land UAS flights not authorized by the FAA above 400’AGL and in the airspace beyond runway ends in which manned aircraft could be operating below 400’ AGL.121 Since all commercial UAS flights should be authorized by the FAA in order to fly above 400’ AGL and no recreational UAS operators should fly above 400’ AGL per the Advisory Circular, there would be no conflict from a preemption standpoint for the vast majority of airspace. Supreme Court precedent in the takings arena related to airport siting provides ample police power justification for prohibiting land use for non-FAA authorized UAS operations in the near vicinity of airports in order to protect both manned aircraft and the public safety near airports.

VI. Conclusion

Local authority to regulate land use and zoning is not generally preempted.122 Regulating non-commercial UAS operators from operating their UAS in the vicinity of airports to (1) prevent interference with airport purposes, (2) clear and protect airspace by removing existing hazards and preventing future hazards and (3)restricting the use of land in the vicinity of the airport to activities compatible with normal airport activities is consistent with airport grant assurances. These regulations should be community based and focused on safety. A catchall category could be included to ban reckless activity.123 Thus, state and local governments can protect their airports by prohibiting or regulating land uses that allow UAS operations. Such land use regulations could be part of a more comprehensive state or local scheme to regulate use of UAS that includes restrictions on surveillance, prohibitions on voyeurism, hunting and fishing limitations and prohibitions on attaching firearms to UAS.124

Entity:
Topic:
  1. Bart Jansen, FAA: Drone registration eclipses that of regular planes, USA TODAY, Feb. 8, 2016, http://www.usatoday.com/story/news/2016/02/08/faa-drone-registration-eclipses-regular-planes/80002730/.
  2. Thierry Dubois, Brainstorming Ongoing On UAV Traffic Management, AVIATION WEEKLY (3/8/2017) available at http://aviationweek.com/awincommercial/brainstorming-ongoing-uav-traffic-management.
  3. FAA, Model Aircraft Operating Standards, Advisory Circular 91-57A Change 1, Jan. 11, 2016, https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A_Ch_1.pdf.
  4. National Transportation Safety Board, Loss of Thrust in Both Engines After Encountering a Flock of Birds and Subsequent Ditching on the Hudson River, US Airways Flight 1549 Airbus A320-214, N106US Weehawken, New Jersey January 15, 2009 Accident Report, NTSB/AAR-10/03 at 49, May 4, 2010, https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1003.pdf.
  5. David Hambling, What Really Happens When a Drone Strikes an Airplane, POPULAR MECHANICS, Dec. 22, 2016, http://www.popularmechanics.com/flight/drones/a24467/drone-plane-collision/.
  6. Id.
  7. Id.
  8. FAA, Pilot Reports of Close Calls With Drones Soar in 2015, August 12, 2015, https://www.faa.gov/news/updates/?newsId=83445.
  9. Tom Banse, Airline Pilots Report Drone Sightings On SeaTac and PDX Airport Approaches, KUOW, March 3, 2017, http://www.opb.org/news/article/drone-sightingpdx-seatac-pilots/.
  10. FAA, FAA Releases Drone Sighting Reports, Feb. 23, 2017, https://www.faa.gov/news/updates/?newsId=87565. Recently, a drone hit an airliner in Canada. See http://money.cnn.com/2017/10/16/technology/drone-passenger-plane-canada/index.html.
  11. David Hambling, What Really Happens When a Drone Strikes an Airplane, POPULAR MECHANICS, DEC. 22, 2016, http://www.popularmechanics.com/flight/drones/a24467/drone-plane-collision/. Some pilots have seen drones as high as 10,000 feet however. Id.
  12. FAA, FAA Evaluates Drone Detection Systems at DFW, Apr. 28, 2017, https://www.faa.gov/news/updates/?newsId=87949.
  13. Cf. FAA, LEO Guidance for Unmanned Aircraft Systems (UAS) (3/8/16 Rev. 1), https://www.faa.gov/uas/resources/law_enforcement/media/LEO_guidance_card.pdf (“If you suspect a UAS operation is unsafe or unauthorized: . . . 5. Take action based on local Laws, Ordinances, Directives”) to FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf (“Where Congress occupies an entire field . . . even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards”).
  14. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §336(a), 49 U.S.C. 40101(a) (hereinafter FMRA).
  15. FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, (Version 3 8/11/2016), https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf.
  16. FMRA §336(a).
  17. Michelle Tonelli, Flying in the Dark: How a Legal Loophole Endangers Critical Infrastructure, 80 J. AIR L. & COM. 693 (2015).
  18. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec.17, 2015, available at https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf.
  19. The next paragraph in the State and Local Regulation of UAS Fact Sheet does not bar local regulation of airspace per se but states FAA should be consulted. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015, https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf.
  20. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73, 120 S. Ct. 2288, 2293–94, 147 L. Ed. 2d 352 (2000).
  21. Id.
  22. Id.
  23. Id.
  24. 2015 WL 4502248, at *1 (Va. A.G. July 13, 2015).
  25. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec.17, 2015, https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf (“Where Congress occupies an entire field . . . even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards”).
  26. See 2015 WL 4502248, at *3 (Va. A.G. July 13, 2015).
  27. See, e.g., Troy A. Rule, Drone Zoning, 95 N.C. L. REV. 133, 144-160 (2016) (“It seems more plausible that Congress intended for ‘airspace of the United States’ to only encompass space regularly involved in manned air flight— irspace near airports or situated at least 500 feet above ground in most places”); Maxwell Mensinger, Remodeling “Model Aircraft”: Why Restrictive Language That Grounded the Unmanned Industry Should Cease to Govern It, 100 MINN. L. REV. 405, 423-424 (2015) (Note).
  28. Griggs v. Allegheny Cty., 369 U.S. 84, 89, 82 S. Ct. 531, 534, 7 L. Ed. 2d 585 (1962).
  29. “ ‘National Airspace System’ means the common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. Included in this definition are system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.” PRESIDENTIAL MEMORANDUM: PROMOTING ECONOMIC COMPETITIVENESS WHILE SAFEGUARDING PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES IN DOMESTIC USE OF UNMANNED AIRCRAFT SYSTEMS, 2015 WL 632366, at *4.
  30. Model, hobby, recreational and non-commercial will be used interchangeably in this article to refer to non-commercial UAS use.
  31. FMRA §336(a)(2).
  32. Grant Obligations 19, 20, 21. See, e.g., FAA Airports, Assurances, Airport Sponsors, Mar. 2014, https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf.
  33. Office of Inspector General Audit Report, FAA LACKS A RISK-BASED OVERSIGHT PROCESS FOR CIVIL UNMANNED AIRCRAFT SYSTEMS, Dec. 1, 2016, https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20UAS%20-%20Final%20Report%5E12-01-16_0.pdf.
  34. FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, (Version 3 Aug. 11, 2016, https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf.
  35. See Taylor v. Huerta, No. 15-1495, 2017 WL 2192935, at *5 (D.C. Cir. May 19, 2017).
  36. Griggs v. Allegheny Cty., 369 U.S. 84, 89, 82 S. Ct. 531, 534, 7 L. Ed. 2d 585 (1962) (it is the local authority which decides to build an airport vel non, and where it is to be located).
  37. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf.
  38. Id.
  39. Some of these questions include:
    (1) [W]ho is in charge and what role do state and local governments have to play? After all, many local codes currently regulate where airports and heliports may be located and the definitions of “airport” or “heliport” will likely also cover areas where UAS take off and land vertically or laterally. Will the FAA allow such rules to apply to UAS? Can land use authorities regulate the places of launch, land and recharge? (2) Will drones operate from commercial, municipally-owned ports at all, like airplanes do? Does it matter for purposes of liability whether they operate from official airports or someone’s back yard or the corner of a parking lot or remotely from wherever they are perched like from atop a streetlight? Should they be allowed to operate from anywhere? Can anyone stop them from doing so? (3) Can local governments franchise drones as a source of local income? (4) How (if at all) does it matter whether drone flights are within the congressionally declared “navigable airspace?” (5) What are the privacy implications of drones? Do the latter differ significantly (either legally or factually) from potential privacy problems of satellites? Or piloted aircraft? How (if at all) does it matter whether the privacy intrusion is by a government agency or private citizens? (6) How does the prospect of numerous unmanned, but remote controlled, drones impact aviation safety? (7) Does constitutional takings law apply? (8) How about traditional tort law (e.g., trespass and nuisance)? Are property owners allowed (and, if so, how) to protect their property (and how high up does it go?) from trespassing drones? (9) Who is responsible for tort damages to persons or property? (10) With respect to takings, trespass, or nuisance, does it matter whether flights are directly overhead, i.e., do we care whether the clausum got fregit or not? (11) And, generally, how do the United States Constitution First, Fourth, Fifth, and Fourteenth Amendments impact the discussion?
    Wendie L. Kellington and Michael Berger, Why Land Use Lawyers Care About the Law of Unmanned Systems, 37 No. 6 ZONING AND PLANNING LAW REPORT 1, 6 ( June 2014).
  40. PRESIDENTIAL MEMORANDUM: PROMOTING ECONOMIC COMPETITIVENESS WHILE SAFEGUARDING PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES IN DOMESTIC USE OF UNMANNED AIRCRAFT SYSTEMS, 2015 WL 632366, at *4.
  41. 49 U.S.C. § 40103.
  42. See Braniff Airways v. Nebraska State Bd. of Equalization & Assessment, 347 U.S. 590, 596–97, 74 S. Ct. 757, 761, 98 L. Ed. 967 (1954)(“These Federal Acts regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the navigable air space, as distinguished from sovereignty.”)
  43. See, e.g., Huerta v. Haughwout, No. 3:16-CV-358 (JAM), 2016 WL 3919799, at *5 (D. Conn. July 18, 2016) (“And so the Supreme Court recognized even 70 years ago that “[t]he landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” Ibid. If that much is clear, does it follow that this foundational principle must vanish or yield to FAA dictate the moment that a person sets any object aloft (i.e., an “aircraft”) no matter how high in the airspace outside one’s home?”)
  44. 49 U.S.C § 40103.
  45. 49 U.S.C. § 44701.
  46. Advisory Circulars are informal guidance issued by the FAA. “[N]o statute requires the FAA to engage in the notice and comment process or hold proceedings on the record when issuing advisory circulars. Instead, advisory circulars fall into the vast category of “informal adjudications” in which agencies routinely engage. Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007).
  47. “When airport owners or sponsors, planning agencies, or other organizations accept funds from FAA-administered airport financial assistance programs, they must agree to certain obligations (or assurances). These obligations require the recipients to maintain and operate their facilities safely and efficiently and in accordance with specified conditions. The assurances may be attached to the application or the grant for Federal assistance and become part of the final grant offer or in restrictive covenants to property deeds. The duration of these obligations depends on the type of recipient, the useful life of the facility being developed, and other conditions stipulated in the assurances.” FAA, Grant Assurances (Obligations) Airports, June 25, 2014, https://www.faa.gov/airports/aip/grant_assurances/; see also Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 138 (2d Cir. 2016) (“Upon acceptance of an AIP grant, the grant assurances become a binding contractual obligation between the airport sponsor and the Federal government. These included assurances to make the Airport available for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities and to comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance and use of Federal funds”) (internal punctuation omitted).
  48. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/UAS_Fact_Sheet_Final.pdf (“Where Congress occupies an entire field . . . even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards”).
  49. Huerta v. Haughwout, No. 3:16-CV-358 (JAM), 2016 WL 3919799, at *4 (D. Conn. July 18, 2016).
  50. FMRA § 336. “Community based set of safety guidelines” have been interpreted to refer to Academy of Model Aeronautics National Model Aircraft Safety Code. Operation and Certification of Small Unmanned Aircraft Systems, 81 FR 42064-01. However, I am not sure that the statute is clear and believe that “community based set of safety guidelines” can also refer to local communities.
  51. FAA, Law Enforcement Guidance For Suspected Unauthorized UAS Operations, Version 3, Aug. 11, 2016, https://www.faa.gov/uas/resources/law_enforcement/ media/FAA_UAS-PO_LEA_Guidance.pdf Historically, the FAA had regulated Model Aircraft under a voluntary Advisory Circular “Model Aircraft Operating Standards.” Wendie L. Kellington and Michael Berger, Why Land Use Lawyers Care About the Law of Unmanned Systems, 37 No. 6 ZONING AND PLANNING LAW REPORT 1, 3 ( June 2014); see also Huerta v. Pirker, NTSB Order No. EA-5730, 2014 WL 8095629, at *2 (Nat’l Trans. Safety Bd.), https://www.ntsb.gov/legal/alj/Documents/5730.pdf (An aircraft is ““any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.”)
  52. 14 C.F.R. § 91.119. In Urban areas, flights should operate at 1000 feet above ground level.
  53. 14 C.F.R. § 91.111.
  54. 14 C.F.R. § 91.13.
  55. 14 C.F.R. § 91.15.
  56. 14 C.F.R. § 101.43; see also FMRA § 336 (“Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”)
  57. FMRA § 333.
  58. FAA, Section 333, Feb. 10, 2017, https://www.faa.gov/uas/beyond_the_basics/section_333/.
  59. FAA, FAA Doubles “Blanket” Altitude for Many UAS Flights, Mar. 29, 2016, https://www.faa.gov/news/updates/?newsId=85264.
  60. 14 C.F.R. § 107.1-205.
  61. 14 C.F.R. § 107.51. This rule keeps UAS outside of the areas that most manned flight occurs since manned flight should not operate below 500’ AGL or within 500’ of buildings or structures except for departure and approach.
  62. 14 C.F.R. § 107.43
  63. Operations are permitted in Class G airspace without Air Traffic Control permission. Operations in Class B, C, D, and E require Air Traffic Control notification. 14 C.F.R. 107.41.
  64. Michele Tonelli, Flying in the Dark: How a Legal Loophole Endangers Critical Infrastructure, 80 J.AIR L. & COM. 693, 698 (2015), http://scholar.smu.edu/jalc/vol80/iss4/3
  65. FAA, Beyond the Basics, Feb. 10, 2017, https://www.faa.gov/uas/beyond_the_basics/#gov; FAA, Public Aircraft Operations, Advisory Circular 00-1.1A, Feb. 2, 2014, https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_00-1_1A.pdf
  66. FAA, Airworthiness Certification of Unmanned Aircraft Systems and Optionally Piloted Aircraft, Order 8130.34C, Aug. 2, 2013, https://www.faa.gov/documentLibrary/media/Order/8130.34C.pdf.
  67. Sarah Nilsson, Drones Across America 66 (A.B.A. 2017).
  68. Id.
  69. The total hobbyist fleet in 2016 stood at 1.10 million and the FAA expects it to grow to 2.75 Million to 4.47 Million by 2021. Compare the hobbyist fleet to the commercial fleet which stood at 42,000 in 2016 and is expected to grow to somewhere between 238,000 and 1.62 million by 2021. FAA, Aerospace Forecast FY 2017-2037, Unmanned Aircraft Systems, Mar. 24, 2017, https://www.faa.gov/data_research/aviation/aerospace_forecasts/media/Unmanned_Aircraft_Systems.pdf. As a benchmark, the total general aviation aircraft fleet in the US is 209,905 and is expected to remain constant through 2021. The number of cargo jet aircraft is set to grow slightly from 810 to 833 over that five year period and the number of mainline passenger jet aircraft is also expected to grow slightly from 4,068 to 4,195. FAA, Aerospace Forecase FY 2017-2037, Appendix C, 2037, Mar. 24, 2017, https://www.faa.gov/data_research/aviation/aerospace_forecasts/media/Appendix_C_Forecast_Tables.pdf.
  70. Michele Tonelli, Flying in the Dark: How a Legal Loophole Endangers Critical Infrastructure, 80 J. AIR L. & COM. 693, 697 (2015), http://scholar.smu.edu/jalc/vol80/iss4/3.
  71. FMRA § 336.
  72. FMRA § 336.
  73. Tom Banse, Airline Pilots Report Drone Sightings On SeaTac and PDX Airport Approaches, KUOW, March 3, 2017, http://www.opb.org/news/article/drone- sightingpdx-seatac-pilots/.
  74. FMRA § 336.
  75. FMRA § 336.
  76. FAA, Fly for Fun, Feb. 15, 2017, https://www.faa.gov/uas/getting_started/fly_for_fun/ (“You don’t need permission from the FAA to fly your UAS (aka drone) for fun or recreation, but you must always fly safely.”)
  77. Office of Inspector General Audit Report, FAA LACKS A RISK-BASED OVERSIGHT PROCESS FOR CIVIL UNMANNED AIRCRAFT SYSTEMS, (Dec. 1, 2016, https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20UAS%20-%20Final%20Report%5E12-01-16_0.pdf.
  78. Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015).
  79. FAA, Model Aircraft Operating Standards, Advisory Circular 91-57A Change 1, Jan. 11, 2016, https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A_Ch_1.pdf.
  80. Id.
  81. Id.
  82. Taylor v. Huerta, No. 15-1495, 2017 WL 2192935, at *2 (D.C. Cir. May 19, 2017).
  83. Id. at *4.
  84. Id. at n.2.
  85. Id.
  86. Id.
  87. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Dec. 17, 2015, https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.
  88. Ickes v. FAA, 299 F.3d 260, 263 (3d Cir. 2002).
  89. Class B Airspace is the most restrictive airspace and it surrounds the nation’s busiest airports. FAA, Classes of Airspace, (undated), https://www.faasafety.gov/gslac/alc/course_content.aspx?cID=42&sID=505&preview=true (Class B Airspace is “Generally, that airspace from the surface to 10,000 feet MSL surrounding the nation’s busiest airports in terms of IFR operations or passenger enplanements. The configuration of each Class B airspace area is individually tailored and consists of a surface area and two or more layers (some Class B airspace areas resemble upsidedown wedding cakes), and is designed to contain all published instrument procedures once an aircraft enters the airspace.”)
  90. At most there is a discretionary review section at Subpart E, 14 CFR § § 77.37-77.41.
  91. Airport sponsors for purposes of grant analysis can take many forms. They typically are the Airport Owner who may be state government, local government or special district.
  92. Grant Assurance 19. FAA, Grant Assurances (Obligations) Airports, June 25, 2014, https://www.faa.gov/airports/aip/grant_assurances/.
  93. Grant Assurance 20. FAA, Grant Assurances (Obligations) Airports, June 25, 2014, https://www.faa.gov/airports/aip/grant_assurances/.
  94. Grant Assurance 21. FAA, Grant Assurances (Obligations) Airports, June 25, 2014, https://www.faa.gov/airports/aip/grant_assurances/.
  95. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.
  96. Troy A. Rule, Drone Zoning, 95 N.C. L. REV. 133, 144 (2016).
  97. FAA, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Federal Aviation Administration Office of the Chief Counsel, Dec. 17, 2015, https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.
  98. Troy A. Rule, Drone Zoning, 95 N.C. L. REV. 133, 143 (2016).
  99. Tom Banse, Airline Pilots Report Drone Sightings On SeaTac and PDX Airport Approaches, KUOW, March 3, 2017, http://www.opb.org/news/article/dronesighting-pdx-seatac-pilots/.
  100. Automatic Dependent Surveillance—Broadcast. “ADS-B Out broadcasts information about an aircraft through an onboard transmitter to a ground receiver. Use of ADS-B Out will move air traffic control from a radar-based system to a satellite- derived aircraft location system. This action facilitates the use of ADS-B for aircraft surveillance by FAA and Department of Defense (DOD) air traffic controllers to safely and efficiently accommodate aircraft operations and the expected increase in demand for air transportation.” Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service, 75 Fed. Reg. 30160-01 (May 28, 2010).
  101. “The FAA acknowledges the concerns raised by the commenters, but notes that the risk associated with the operation of an aircraft need not always be mitigated through technological equipage. While there are benefits associated with technological equipage, there can also be significant costs in the form of installation, airworthiness certification (to ensure that the equipage is functional, reliable, and properly installed), maintenance, and, ultimately, replacement of the equipage. The FAA considered imposing equipage requirements in this rule, but ultimately decided against this because the risk associated with certain small UAS operations (i.e. the operations subject to part 107) can be mitigated through operational restrictions without any equipage requirements.”
    Operation and Certification of Small Unmanned Aircraft Systems, 81 FR 42064-01, Jun. 28, 2016.
  102. FMRA § 336(4).
  103. FMRA § 336.
  104. 18 U.S.C. § 32.
  105. 49 U.S.C. § 46307.
  106. Pirker was fined $10,000 for not having a pilot’s license and ultimately settled for $1,100. Stephen Pope, FAA Settles Landmark Pirker UAV Case, FLYING, Jan. 27, 2015), http://www.flyingmag.com/news/faa-settles-landmark-pirker-uav-case.
  107. Taylor v. Huerta, No. 15-1495, 2017 WL 2192935, at *5 (D.C. Cir. May 19, 2017).
  108. FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, (Version 3 Aug. 11, 2016), https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf.
  109. FAA, LEO Guidance for Unmanned Aircraft Systems (UAS) (3/8/16 Rev. 1) available at https://www.faa.gov/uas/resources/law_enforcement/media/LEO_guidance_card.pdf (“If you suspect a UAS operation is unsafe or unauthorized: . . . 5. Take action based on local Laws, Ordinances, Directives”)
  110. Office of Inspector General Audit Report, FAA LACKS A RISK-BASED OVERSIGHT PROCESS FOR CIVIL UNMANNED AIRCRAFT SYSTEMS, Dec. 1, 2016, https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20UAS%20-%20Final%20Report%5E12-01-16_0.pdf.
  111. FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, (Version 3 Aug. 11, 2016), https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf.
  112. See, e.g., 2015 WL 4502248, at *3 (Va. A.G. July 13, 2015) (“One exemption from the field preemption created by the Aviation Act and FMRA is for regulations that pertain to certain “model aircraft.” That term encompasses some drones. The FMRA prohibits the FAA from promulgating any regulations governing model aircraft that: (1) are used solely for recreational purposes; (2) are operated in accordance with a community-based set of safety guidelines, (3) weigh less than 55 pounds, (4) are operated in a manner so as not to interfere with manned aircraft, and (5) if flown within five miles of an airport, are operated by an individual who has given the aircraft operator and air traffic control tower prior notice of the operation. The FAA retains the authority, however, to enact and enforce regulations to ensure that these model aircraft do not “endanger the safety of the national airspace system.” Given the explicit “carve out” for model aircraft, it is my opinion that state and local regulations governing these types of small craft are not preempted, as long as those regulations do not conflict with either the language or purpose of existing federal law and regulations.”)
  113. Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,194 (June 28, 2016).
  114. FAA, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Federal Aviation Administration Office of the Chief Counsel, Dec. 17, 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.
  115. FAA, Model Aircraft Operating Standards, Advisory Circular 91-57A Change 1, (Jan. 11, 2016), https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A_Ch_1.pdf.
  116. United States v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 1067, 90 L. Ed. 1206 (1946).
  117. FAA, Model Aircraft Operating Standards, Advisory Circular 91-57A Change 1, (Jan. 11, 2016), https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A_Ch_1.pdf.
  118. FMRA §336 (c)(2).
  119. FMRA § 336(a)(4).
  120. See Troy A. Rule, Drone Zoning, 95 N.C. L. REV. 133 (2016) for suggestion that UAS regulation “could utilize existing land use zoning maps, basing drone use rules on whether a drone is flying above a residential, commercial, industrial, or other land use zone.”
  121. This is the simplest surface to consider. Airports protect for numerous imaginary surfaces around their facilities for aircraft including circling minimums, one engine out surfaces, and others. One simple measurement of the proposed restricted area would be to follow a 3% glideslope from the end of any given runway until 400’ AGL. That should be a distance of around 1.25 miles. A 3% descent rate for arriving aircraft is typical.
  122. National League of Cities, Cities and Drones: What Cities Need to Know about Unmanned Aerial Vehicles (UAVS), at 8, Dec. 8, 2016, http://www.nlc.org/sites/default/files/2016-12/NLC%20Drone%20Report.pdf.
  123. Id.
  124. See National League of Cities, A Model for Cities Ordinance for the Promotion of Drone Innovation & Accountability, Aug. 16, 2016, http://nlc.org/sites/default/files/FA_drone_ordinance_brief.pdf.