Going Direct: FAA Flexes Its Muscles on Airspace

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Yes, there are drones at Oshkosh, but are they flitting around the friendly confines of Wittman Regional willy-nilly? Playing remote control Speed Racer on short final for 36? Hardly. And if the City of Oshkosh wanted to allow drones to do any of that, which they don’t and wouldn’t, would they have the right to do so? And if you think these issues are simple, just remember that the whole Santa Monica real estate land grab is grappling the issue of who gets to decide such things. In that case, the courts now seem to be siding with Santa Monica, which is understandable. Because in principle, the city however evil its actions and motivations might be, seems to be largely within its general rights to control where airports go. The question being litigated isn’t whether cities can decide where airports can and can’t go but who made promises over funding, what those promises were and whether they were kept or not.

As to the limits of cities’ control over aviation, it pretty much ends with the craft and the space encountered once the wheels leave the ground.

It’s long settled law that the FAA is in control of regulations that have to do with the airspace above us and the craft that ply those skies and local authorities are in charge of the terra firma. And that’s how it should be. It’s how it needs to be. Just imagine how life in the air would be if as soon as you travelled across the state line between Pennsylvania and Ohio you needed to squawk a different transponder code, or have a different kind of transponder installed? That is not even the tip of the iceberg of the potential calamity of local, county or state authorities attempting to regulate federal air travel. The City of South Bend, Indiana, could, for instance, require that all aircraft overflying their fair city would need to be painted in the green and gold of the Fightin’ Irish of Notre Dame University. For ten thousand practical reasons, we need to have a single set of regulations over our airspace.

But what about international borders? Good question. The same issues apply, and they are indeed thorny and have been since soon after the dawn of fight. Say for instance that as soon as you crossed over from International Waters to European controlled airspace you needed a completely different kind of radio, not to mention antique navigation equipment that better belongs in a museum showcase than the flight deck of a modern airplane?

Well, that is precisely the case. European radio requirements are for tighter frequency spacing for VHF comms and depending on what kind of plane you fly, what routes you navigate and in which countries, you might need to be outfitted with ADF or DME in addition. In fact, among European aviators the subject of what equipment you need where and when and for what planes is a source of endless bickering. Not so in the United States. We save our heated conversations for the subjects of downwind turns, flying on the step and whether Amelia Earhart’s remains have really been found, once again. In the good old US of A, put an ADF in your Gulfstream only if for some reason you want to. And who gets to make that rule? The FAA. And thank goodness for that.

But drones are new to the world of something resembling aviation, so we need to remind not only drone pilots, a daunting task, but the tens of thousands of local and regional governmental authorities what they can and can’t do. The FAA did just that recently when it issued guidance. In a July 11, 2018 memo, the agency clarified the subject. Some of the clarifications are common sense and some are so bafflingly bizarre it reminds you of just how twisted users of technology can potentially be:

“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. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).

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.

Here’s the link to the FAA document:

Leaving aside for the time being, and probably forever, the subject of who would want to weaponize their brand new Best Buy drone, what local and regional regulators can’t do is tell pilots, remote ones or otherwise, what airspace they can fly in, what kind of transponder they need to have installed or what color their planes need to be painted.

And thank goodness that the FAA in its wisdom seems to understand how important it is to remind city councils and county boards of commissioners to keep their hands off the airspace. We pretty much have that figured out. At least until autonomous urban air taxis show up en masse. Then, heaven help us all.

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