Sunday, October 22, 2017

Drone Flights Banned Near National Monuments

The Federal Aviation Administration (“FAA”) announced on September 28, 2017,  that at the request of U.S. national security and law enforcement agencies, it  is using its existing authority under Title 14 of the Code of Federal Regulations (14 CFR) §99.7, entitled  “Special Security Instructions” – to address concerns about unauthorized drone operations over ten (10)  U.S. Department of the Interior (“DOI”) sites, including the Statue of Liberty, Mount Rushmore and four (4) U.S. dams.

The FAA and DOI have agreed to restrict drone flights up to 400 feet within the lateral boundaries of the following sites:
  • Statue of Liberty National Monument, New York, NY
  • Boston National Historical Park (U.S.S. Constitution), Boston, MA
  • Independence National Historical Park, Philadelphia, PA
  • Folsom Dam; Folsom, CA
  • Glen Canyon Dam; Lake Powell, AZ
  • Grand Coulee Dam; Grand Coulee, WA
  • Hoover Dam; Boulder City, NV
  • Jefferson National Expansion Memorial; St. Louis, MO
  • Mount Rushmore National Memorial; Keystone, SD
  • Shasta Dam; Shasta Lake, CA
The restrictions became effective on October 5, 2017. There are only a few exceptions that permit drone flights within these restrictions, and they must be coordinated with the individual facility and/or the FAA.

Operators who violate the airspace restrictions may be subject to enforcement action, including potential civil penalties and criminal charges.

This is the first time the agency has placed airspace restrictions for unmanned aircraft, or “drones,” over DOI landmarks. The FAA has placed similar airspace restrictions over military bases that currently remain in place.  See
The FAA is considering additional requests from other federal agencies for restrictions using the FAA’s § 99.7 authority as they are received.

All of the above sites are managed by the National Park Service directly or, in the case of the four dams, managed by the U.S. Bureau of Reclamation, whose parent agency is the U.S. Department of the Interior.

Sunday, August 6, 2017

Comments Needed in FCC AeroMACS Proceeding

The Federal Communications Commission in Washington, D.C., has issued a Public Notice seeking comment on a petition filed by the WiMAX Forum proposing service rules for the Aeronautical Mobile Airport Communications System (AeroMACS). This WiMAX Forum Petition for Rulemaking to Adopt AeroMACS Service Rules was filed with the FCC on March 31, 2017.  See the text here   AeroMACS refers to a collection of high data rate wireless networks that are used in accordance with international aeronautical standards for airport surface operations to provide broadband communications between aircraft and other vehicles, as well as between critical fixed assets.  
The FCC notes that AeroMACS is designed to support a wide variety of services and applications, including Air Traffic Control/Air Traffic Management and infrastructure functions, as well as airline and airport operations.  For example, the FCC opines that AeroMACS frequencies might be used by pilots to receive weather and airfield information; by fire rescue, snow removal, and ground personnel to coordinate operations; and by airport security personnel to monitor live video feeds. The FCC has previously allocated frequencies for AeroMACS , which will operate in the 5000-5030 MHz and 5091-5150 MHz bands, and will be utilized by Federal and non-Federal users.  See Amendment of Parts 2, 15, 80, 90, 97, and 101 of the Commission’s Rules Regarding Implementation of the Final Acts of the World Radiocommunication Conference (Geneva, 2012)(WRC-12), Other Allocation Issues, and Related Rule Updates, Report and Order, 32 FCC Rcd 2703, 2717-18, paras. 39-40 (2017); 47 CFR § 2.106, Footnotes US115, US444B.

Proposed uses for Federal users (i.e., government entities, like the FAA) include air traffic management, including air traffic control; aeronautical operations communications; and communications related to airport operations, safety, and security.  Non-Federal users may include airport owners and operators, airline carriers, aeronautical communications network providers (ACNPs), and other entities that engage in airport communications relating to safety and regularity of flight.  

The FCC has taken  actions in support of aeronautical mobile (route) service (AM(R)S) surface applications at airports in the 5000-5030 MHz band and unmanned aircraft systems (UAS) in the 5030-5091 MHz band.   The aeronautical mobile (route) service is an aeronautical mobile service (i.e. a mobile service that supports communications between aeronautical stations and aircraft stations, or between aircraft stations) and is reserved for communications relating to the safety and regularity of flight.  See 47 CFR § 2.1.

The reason these allocations are important for sUAS is that the FCC has allocated the 5030-5091 MHz band to the AM(R)S on a primary basis for Federal and non-Federal use, while noting that the 5030-5091 MHz band would be appropriate to satisfy the terrestrial, line-of-sight, spectrum requirements for command and control of UAS in non‑segregated airspace. See U.S. Proposals for WRC-12, First Tranche, Agenda Item 1.3 (“given that there is minimum use in this band worldwide and because the lack of an existing or planned microwave landing system deployment in the United States at 5030-5091 MHz ensures availability of appropriate aeronautical spectrum for terrestrial line-of-sight UAS in the band”)( The U.S. Proposals for the WRC-12 consisted of three letters from the Commission and NTIA to the U.S. Department of State:  First Tranche (February 17, 2011); Second Tranche (RCS-2394/1, June 21, 2011); and Third Tranche (September 19, 2011) (together, U.S. Proposals for WRC-12, available at  

The Small UAV Coalition generally supported this allocation, noting that the allocation of this band should be flexible to accommodate future uses of the band by low‑altitude small UAS and uses beyond line-of-sight.  Boeing also supported this allocation, Boeing also supported the AM(R)S allocation, noting the expected substantial growth of UAS in the coming years, including flight operations outside of segregated airspace. Boeing also noted that the 5030-5091 MHz band was well suited for line-of-sight control links because it remains relatively unused.

So, while the allocations are established, the service rules for use of the spectrum at and around airports is not, and these rules are the subject of this Notice of Proposed Rulemaking.  Those readers with an interest in helping to shape the rules for the deployment of the AeroMACS frequencies for uses which will affect small UAS, particularly for uses beyond line-of-sight, are urged to file comments. 
Electronic Filers:  Comments may be filed electronically using the Internet by accessing the ECFS:  The File No. of this proceeding is RM-11793.  The Comment Date is August 18, 2017, and the Reply Date:  September 5, 2017.

Sunday, June 18, 2017

The U.S. Court of Appeals Deals Major Blow to FAA

As noted previously in this blog, the FAA determined in 2015 that it was time in the development of UAS regulation and operation  to enforce the applicability of the statutory requirements regarding aircraft registration to UAS, including those operating as model aircraft. In response to the Clarification and Request For Information document in Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration (“Clarification”) in Docket No. FAA-2015-4378, 80 FR 63912 (October 22, 2015),  the FAA issued an Interim Final Rule clarifying these statutory requirements and issuing a request for further information.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,59  (December 16, 2015)  (the “Registration Rule”).  The Registration Rule extended to

Unmanned aircraft weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.

The FAA determined that “Owners of small unmanned aircraft must register their aircraft
prior to operation of the sUAS.”  No exception was created for model aircraft.

Required information from individuals registering small unmanned aircraft intended to be used exclusively as model aircraft are as follows: 
• Applicant name.
• Applicant physical address (and mailing address if different than physical address
• Applicant e-mail address.
• Other information as required by the Administrator.
§ 48.100

However, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) specifically provided that the FAA “may not promulgate any rule or regulation regarding a model aircraft”, which model aircraft met all of the following statutory criteria:

• The aircraft is flown strictly for hobby or recreational use;
• The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
 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;
 The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
 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.

John Taylor, an attorney in the Washington D.C., area and a model aircraft enthusiast, in challenged the Registration Rule in the U.S. Court of Appeals for the District of Columbia Circuit on this very basis, i.e., Taylor argued that the FAA did not have  the statutory authority to issue the Registration Rule and require him to register his model aircraft due to this  language in the FAA Modernization and Reform Act of 2012.  The Court of Appeals agreed.  In a recent decision, Taylor v. Huerta, No. 15-1495 (D.C. Cir. 2017), the U.S. Court of Appeals vacated the Registration Rule to the extent it applied to model aircraft.  See the text of the decision here.


This is a major blow to the FAA’s plan to integrate sUAS safely into the National Airspace (“NAS”) .  As  noted on a previous post, the FAA on the anniversary of the adoption of the Registration Rule stated that the rule and the registration system were primarily aimed at the thousands of drone hobbyists who had little or no experience with the U.S. aviation system. The agency saw registration as an excellent way to give them a sense of responsibility and accountability for their actions as the agency incorporates drones into the National Airspace System.   At that point the FAA noted that the registration system has registered more than 616,000 owners and individual drones. Now that the Court of Appeals has removed this requirement, the FAA is left with very little ability to track the ownership of the vast majority of registered UAS owners.    

The Court of Appeals did note that:

Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

The Court of Appeals did perhaps provide  some enforcement leeway to the FAA stating that: 

We note 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.  (Citation omitted.)  That  provision, however, is tied to safety. It does not authorize  the FAA  to enforce any pre-existing registration requirement.

As NASA in conjunction with the FAA and its development partners develops its UTM for the traffic management of sUAS in the NAS, it would appear that the safety element addressed in this dicta may allow the FAA to impose some type of registration requirement, not pre-existing,  in order to participate in the UTM for flights of sUAS,


However, one thing is clear from the language in the Taylor decision: the FAA would appear to be barred from making any rule with respect to model aircraft that contravenes the language in the FAA Modernization and Reform Act of 2012.