The Federal Aviation Administration is proposing to modify the definition of “aeronautical activity” as it relates to airport sponsors’ federal compliance obligations.  The proposal was issued in the Federal Register on November 15.  Specifically, the FAA proposes to include “certain unmanned aircraft systems (UAS), advanced air mobility (AAM) operations, [and] commercial space vehicle operations,” in the definition of aeronautical activities published in the Airport Compliance Manual (FAA Order 5190.6B).  The notice would exempt “recreational UAS operations” from the definition of aeronautical activity.

The definition of “aeronautical activity” has a number of significant implications for airport sponsors.  Under the grant assurances, airport sponsors must provide aeronautical users access to the airport on reasonable and not unjustly discriminatory terms, and may not grant an “exclusive right to provide an aeronautical service.”  The rents and charges a sponsor may or must charge an airport user, and the extent to which FAA approval of an Airport Layout Plan or change in land use is required, may also turn on whether a particular use is considered aeronautical or non-aeronautical.

Because of the broad implications of including UAS, AAM, and commercial space operations in the definition of aeronautical use, airport sponsors should carefully consider the implications of this proposed change and consider commenting by the December 15 deadline.

Several aspects of the FAA’s proposal raise initial concerns.

• The terms unmanned aircraft systems, advanced air mobility, and commercial space refer to a very wide range of activities, not all of which necessarily require airfield access. 
• While the FAA acknowledges that an airport sponsor is not obligated to introduce or permit an unsafe condition, it also reaffirms the FAA’s role as the “final arbiter regarding aviation safety,” without offering airport sponsors any explanation or commitment as to how, whether, or when the FAA will conduct a safety assessment regarding the introduction of AAM, UAS, and space technologies.  This is a particular concern with AAM operations, which are still in the very early stages of development and implementation.
• Excluding “recreational UAS operations” would appear to require airport sponsors to investigate the nature of particular UAS operations, without regard to the regulatory framework under which they operate, which may create confusion or add to administrative burden.
• The FAA did not take this opportunity to revisit any other activities it has considered aeronautical, such as drop zones for skydiving activities, which need not necessarily be located on an airport and which raise similar safety issues.

The FAA is accepting public comments on the proposal through December 15.  Airport sponsors should closely review the FAA’s proposal and consider submitting comments.  If you would like to discuss this matter further, please contact Steven Osit (sosit@kaplankirsch.com), Nicholas Clabbers (nclabbers@kaplankirsch.com) or any of our Firm’s attorneys with whom you normally work.