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

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3EVOLVING LAW ON AIRPORT IMPLICATIONS BY UNMANNED AERIAL SYSTEMS Timothy M. Ravich, Ravich Law Firm, PLLC I. INTRODUCTION The use, both public and private, of unmanned aerial systems (UAS or “drones”) is a rapidly expanding subset of aviation in America. For exam- ple, in the public sector, the United States Air Force currently trains more UAS operators than fighter pilots while the Central Intelligence Agency and Customs and Border Patrol use large “Predator” drones to support domestic defense and national security missions. Meanwhile, in the private sector, sales of micro- and small UAS (sUAS)—fixed-wing aircraft and quadcopters weighing less than 0.55 lbs. (approx. 250 grams) and 55 lbs. (approx. 25 kilograms), respectively—flown for hobby or recre- ational or commercial purposes—are growing expo- nentially, already numbering in the millions. Further, the potential for use of UAS for humani- tarian and commercial purposes across a wide range of activities is enormous, from agriculture to search and rescue to aerial videography to environ- mental conservation. Companies such as Amazon have demonstrated the successful use of UAS to deliver consumer goods and packages to shoppers. The widespread availability of UAS has opened the national airspace system (NAS) to countless new users and uses in less than a decade. But, along with the beneficial applications have come the inevitable threats of misuse and misconduct, most significantly in terms of safety, security, and pri- vacy. How to use and manage unmanned aerial traffic alongside traditional manned aircraft opera- tions is of significant concern and interest to air- ports and their legal counsel. In this context, the purpose of this report is to provide a practical guide to assist airport sponsors and legal professionals in (1) understanding the basic legal and operational issues presented by civil UAS flight (i.e., including commercial and recre- ational uses, but excluding public operations) in airspace over, near,1 at, and around airports of all types, and (2) evaluating best practices for manag- ing these legal and operational issues. In addition to traditional legal research of case law, statutes, regulations, and policy documents going back to 2002, a key part of the research for this report involved the survey of airports for ideas, trends, and best practices proposed or implemented to mitigate potential airport liability, satisfy federal and local obligations, and address security and pri- vacy concerns related to UAS (e.g., via adequate insurance, redrafting minimum standards, contract provisions, and permitting). To accomplish this, the American Association of Airport Executives (AAAE) distributed a survey to relevant members; the findings are discussed throughout this report and excerpted in Appendix I. To reach the broadest number of stakeholders, interviews also were conducted onsite or virtually of airline representatives, academics, manufacturers, trade organizations, and government officials around the nation. One of the more unexpected results of this process was that most traditional aviators and airport sponsors are not antagonistic toward unmanned aviation so much as they are unsettled about what the law requires of them in terms of UAS operations in the airspace over, near, at, and around airports. Stakeholders concerned about the potential for collisions and accidents involving drones and 1 In the context of UAS, “near airports” has a particular regulatory meaning. For civil (including commercial) oper- ations, the Federal Aviation Administration (FAA) has defined the term as a circular area with a radius of 5 nautical miles centered at the airport’s airport reference point (ARP). A different standard applies to operators of recre- ational or hobby UAS, who must notify airport operators if they intend to operate within 5 statute miles of an ARP. (Five nautical miles is the equivalent of 30,318 feet, while five statutory miles is the same as 26,400 feet.) See, e.g., Airports CounCil internAtionAl-north AmeriCA, report of ACI-NA multi-Committee tAsk forCe on unmAnned AeriAl VehiCles (August 2016), at 5, 7.