In March, the COVID-19 pandemic began to envelope the United States and send shockwaves through American everyday life.  Airports, airlines, and the travel industry as a whole was and continues to be particularly hard-hit.  Passenger numbers have begun to inch up at airports across the country, but the pandemic continues to disrupt the system on a daily basis as new hotspots develop, and health restrictions ebb and flow in different states and local communities.  As we highlighted in our May 2020 Airport Law Alert, FAA and airport sponsors continue to grapple with necessary health measures, grant assurance compliance issues, and making sound financial decisions in this time of unprecedented uncertainty.

While COVID-19 is unquestionably the most important development of the last six months, there have been other court decisions, guidance updates, and policy changes affecting airports.  This Digest is a summary of the important developments in airport law in the first six months of 2020, including: a list of principal cases decided; new DOT and FAA rules, policies, and guidance; and reports, studies, and articles of particular interest to airport legal professionals.  Some of these, including proposed new NEPA regulations, are highlighted in more depth below.  We have attempted to provide links to publicly available documents, and most other documents are available via subscription services such as Westlaw or LexisNexis.  To ensure that the important regular news items are not contaminated, we have visually quarantined all COVID-19 materials at the end of this Digest.

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editor Nicholas M. Clabbers or any other Kaplan Kirsch & Rockwell attorney who normally represents you.

LITIGATION (In Reverse Chronological Order)

FEDERAL AND SELECT STATE COURT DECISIONS

NEPA and Judicial Review. Howard Cty. v. FAA, No. 19-1062 (4th Cir. July 1, 2020) (unpublished) (rejecting petition for review of FAA approval of EIS for cargo improvements at Baltimore-Washington International Thurgood Marshall Airport and finding that petitioners had filed too late, but noting that under specific circumstances, state agency could operate as FAA’s agent with respect to notice of decision).

Car Rental and TNCs.  Turo, Inc. v. City of Los Angeles, No. 18-cv-06055 (C.D. Cal. June 19, 2020) (granting preliminary injunction against unpermitted car-sharing service at Los Angeles International Airport and finding that the City was likely to succeed on its claims under California trespass and municipal airport business licensing laws).

Takings.  Riser, et al. v. City of Chicago, 2020 IL App (1st) 190143-U (June 9, 2020) (in case concerning alleged aircraft overflight takings claim, affirming trial court grant of summary judgment to City of Chicago on statute of limitations grounds and holding that statute began to run upon the opening of a new runway).

Immigration and Customs Enforcement.  United States v. King Cty., 2020 U.S. Dist. LEXIS 92512 (W.D. Wash. May 27, 2020) (denying motion for judgment on the pleadings and proceeding to discovery phase where United States brought challenge to local government executive order requiring airport contracts to contain a prohibition on providing services to aircraft involved in the deportation of immigrant detainees).

Takings. Taylor v. United States, 2020 U.S. App. LEXIS 15565 (Fed. Cir. May 15, 2020) (dismissing complaint alleging regulatory taking, where plaintiff claimed Air Force employee made statements to wind developer contract partner that FAA would likely not issue a No Hazard Determination and developer subsequently elected to terminate the contract).

National Parks and Overflights. In Re: Public Employees for Env’tl Responsibility, 957 F.3d 267 (D.C. Cir. May 1, 2020) (granting writ of mandamus directing FAA and NPS to comply with Air Tour Management Act of 2000, which required agencies to develop air tour management plans for flights over National Parks).

Ridesharing. Arizona v. City of Phoenix, No. CV-20-0019-SA (Ariz. Apr. 2, 2020), en banc (order without opinion holding that City’s assessment of fees on ridesharing companies at Phoenix Sky Harbor Airport did not violate the Arizona Constitution). 

Essential Air Service.  Bd. of Cty. Comm’rs of Washington Cty. v. United States DOT, 955 F.3d 96 (D.C. Cir. Apr. 7, 2020) (rejecting petition for review of DOT decision to remove Hagerstown Regional Airport from Essential Air Service program, finding that it was not arbitrary and capricious because the airport did not meet the enplanement requirement).

Preemption. Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65 (2d Cir. July 9, 2019) (holding that state statute limiting length of runway was preempted by federal safety standards), cert. denied 2020 U.S. LEXIS 1705 (Mar. 23, 2020).

Metroplex/NextGen. Maryland v. FAA, 952 F.3d 288 (D.C. Cir. Mar. 10, 2020) (dismissing as untimely petition for review of FAA implementation of new approaches at Washington National Airport).

Car Sharing Programs. Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. Jan. 22, 2020) (granting preliminary injunction against car sharing service, which sponsor alleges is illegally operating at airport without a car rental permit and trespassing at airport, among other claims).

Zoning and Hazards. Northeast Pa. SMSA LP v. Smithfield Twp. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 7096 (M.D. Pa. Jan. 15, 2020) (where lessee sought to construct a cell tower in the vicinity of an airport, FAA Determination of No Hazard to Air Navigation was sufficient evidence to support lessee’s contention that cell tower would not endanger operations at the airport or violate local ordinance).

Standing and Airport Closure. Rosen v. United States Gov’t, 2020 U.S. App. LEXIS 558 (9th Cir. Jan. 3, 2020) (unpublished) (rejecting pro se pilot’s third-party challenge to settlement agreement between the City of Santa Monica and the United States concerning eventual closure of Santa Monica Airport).

PENDING CASES

Environmental Review. Ctr. for Community Action & Envt’l Justice v. FAA, No. 20-70272 (9th Cir. petition filed Jan. 29, 2020) (petition for review of FAA approval of NEPA Finding of No Significant Impact associated with proposed air cargo facility at San Bernardino International Airport).

Slots. Spirit Airlines, Inc. v. U.S. Dep’t of Transp., Case. No. 19-1248 (D.C. Cir. petition for review filed Nov. 25, 2019) (petition for review challenging FAA decision not to immediately allow new flights at Newark Liberty International Airport (EWR) following Southwest Airlines’ cessation of flights from EWR).

Drones. Nat’l Press Photographers Assoc. v. McCraw, No. 1:19-cv-00946 (W.D. Tex. complaint filed Sept 26, 2019) (challenging state law prohibition on certain unmanned aircraft flights).

Metroplex/Next Gen. 
City of Los Angeles v. FAA, No. 19-73164 (9th Cir. petition filed Dec. 12, 2019) (petition for review of FAA decision to allow flight tracks for departing aircraft at Hollywood Burbank Airport to shift following Metroplex implementation).

City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. briefing on motion for summary disposition concluded June 26, 2020) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport). 

Howard Cty. v. FAA, No. 18-2360 (4th Cir. supp. app’x filed Aug. 1, 2019) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).

Maryland v. FAA, No. 18-1302 (D.C. Cir. case in abeyance pending FAA reconsideration) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).

ADMINISTRATIVE DECISIONS

Economic Nondiscrimination. Resort Aviation Services, Inc. v. Kootenai Cty., FAA Docket No. 16-20-01, Order of the Director (Apr. 30, 2020) (granting motion to dismiss FBO complaint alleging violations of Grant Assurances 22 and 23 where sponsor granted lease agreement to second FBO and withdrew RFP).

FEDERAL LEGISLATION

National Defense Authorization Act for Fiscal Year 2020, Pub. Law No. 116-92 (Dec. 20, 2019).

FEDERAL RULES, ORDERS, AND GUIDANCE (In Reverse Chronological Order)

THE WHITE HOUSE

Executive Order No. 13927, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (June 4, 2020).

DEPARTMENT OF TRANSPORTATION AND FAA ORDERS, POLICIES, AND ADVISORY CIRCULARS

Revised Grant Assurances, FAA Airport Sponsor Assurances (June 4, 2020).

Report to Congress, FAA Reauthorization Act of 2018 Sections 188 and 173 (Apr. 14, 2020) (study regarding day-night average sound levels).

Notice of Proposed Rulemaking, Noise Certification of Supersonic Airplanes, 85 Fed. Reg. 20,431 (Apr. 13, 2020).

Notice of Modification, Airport Improvement Program (AIP) Grant Assurances, 85 Fed. Reg. 12,048 (Feb. 28, 2020) (comment period expired Mar. 30, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-06, Environmental and Noise (Feb. 27, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-05, ZEV, VALE, and Energy Efficiency Programs (Feb. 27, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-03, Airport Types and Eligibility (Feb. 27, 2020).

Part 139 Cert Alert No. 20-01, Required Training for Vehicle Operators Prior to Accessing the Movement Area (Feb. 25, 2020).

Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Feb. 21, 2020).

Notice of Proposed Rulemaking, Traveling by Air with Service Animals, 85 Fed. Reg. 6448 (Feb. 5, 2020) (comment period expired Apr. 6, 2020).

Memorandum PFC 73-20, Streamlined Procedures for Passenger Facility Charge (PFC) Authorizations at Small-, Medium-, and Large-Hub Airports (Jan. 22, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-04, Pilot Program Eligibility (Jan. 22, 2020).

Final Rule, Administrative Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019) (eff. Jan. 27, 2020).

DEPARTMENT OF TREASURY

Final Rule, Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States, 85 Fed. Reg. 3158 (Jan. 17, 2020) (includes specific provisions concerning airports).

DEPARTMENT OF JUSTICE

FBI Private Industry Notification No. 20200612-001, Unattributed Cyber Actors Register Domains Spoofing Legitimate Airport Websites as a Possible Precursor to Future Operational Activity (June 12, 2020).

Memorandum, Guidance Regarding Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems (Apr. 13, 2020).

COUNCIL ON ENVIRONMENTAL QUALITY

Notice of Proposed Rulemaking, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (Jan. 10, 2020) (comment period expired Mar. 10, 2020).

REPORTS, STUDIES, ARTICLES, & OTHER PUBLICATIONS (In Reverse Chronological Order)

U.S. DEPARTMENT OF TRANSPORTATION

Office of Inspector General, Report No. EC2020036, Changes in Airline Service Differ Significantly for Smaller Communities, but Limited Data on Ancillary Fees Hinders Further Analysis (May 27, 2020).

Office of Inspector General, Report No. AV2020028, Contract Towers Are More Cost Effective Than Comparable FAA Towers and Have Similar Safety Records (Apr. 28, 2020).

Office of Inspector General, Report No. IT2020027, FAA Lacks Sufficient Security Controls and Contingency Planning for Its DroneZone System (Apr. 15, 2020).

FAA, Response Letter to Quiet Skies Caucus (January 24, 2020).  

U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Report No. GAO-20-275, TSA Could Strengthen Its Insider Threat Program by Developing a Strategic Plan and Performance Goals (Feb. 2020).

CONGRESSIONAL RESEARCH SERVICE

Report No. IF11550, Protecting Against Rogue Drones (May 15, 2020).

Report No. IF11420, Aircraft Noise and Air Traffic Control Modernization (Jan. 27, 2020).

TRANSPORTATION RESEARCH BOARD, AIRPORT COOPERATIVE RESEARCH PROGRAM

Research Reports

Research Report 216: Guidebook for Assessing Collaborative Planning Efforts Among Airport and Public Planning Agencies (Apr. 15, 2020).

Research Report 215: Transportation Network Companies (TNCs): Impacts to Airport Revenues and Operations—Reference Guide (Mar. 31, 2020).

Research Report 218: Building and Maintaining Air Service Through Incentive Programs (Mar. 30, 2020).

Research Report 211: Guidance for Using the Interactive Tool for Understanding NEPA at General Aviation Airports (March 9, 2020).

Research Report 213: Estimating Market Value and Establishing Market Rent at Small Airports (Feb. 7, 2020).

Research Report 220: Guidebook for Developing a Zero- or Low-Emissions Roadmap at Airports (Jan. 7, 2020).

Synthesis Reports

Synthesis 106: Airport Risk Identification and Prioritization Practices (Mar. 3, 2020).

Legal Research Digest

Legal Research Digest 38: Legal Issues Related to Large-Scale Airport Construction Projects (Feb. 14, 2020).

Web-Only Documents

Web-Only Document 46: Recovering International Recyclables from In-Flight Service (May 18, 2020).

Web-Only Document 45: Airport Environmental Research Roadmap Narrative Report (Feb. 18, 2020).

OTHER INSTITUTIONAL AUTHORS

National Cooperative Highway Research Program

Research Report 938: Incorporating the Costs and Benefits of Adaptation Measures in Preparation for Extreme Weather Events and Climate Change Guidebook (March 23, 2020).

Airport Consultants Council (ACC)

ACC Report, Capital Development at US Airports (March 5, 2020)

COVID-19 MATERIALS

U.S. Department of Transportation, Runway to Recovery: The United States Framework for Airlines and Airports to Mitigate the Public Health Risks of Coronavirus (July 2020).

Airports Council International – North America, COVID-19 Recovery Recommendations (June 2020).

FAA, Information for Airport Sponsors Considering COVID-19 Restrictions or Accommodations (updated May 29, 2020).

FAA, CARES Act Airport Grants – Frequently Asked Questions (updated May 29, 2020).

Part 139 Cert Alert No. 20-03, Notice to Airmen (NOTAM) Examples when Closing Runway(s) and/or Taxiway(s) to Temporarily Park Aircraft (May 5, 2020).

United States Department of Transportation, Docket DOT-OST-2020-0037, Final Order Regarding Continuation of Certain Air Service (Apr. 7, 2020).

FAA, Considerations for State, Local, and Territorial COVID-19 Restrictions That Impact Air Transportation (Mar. 28, 2020).

Click to download a PDF of this Semi-Annual Airport Law Digest.

The COVID-19 pandemic has changed nearly every corner of American society and disrupted the air travel industry in unprecedented ways.  The slow recognition and extended length of the crisis has delivered a different kind of shock to the system than the terrorist attacks of September 11, 2001.  Policymakers at all levels of government, airport sponsors, and other players in the industry are reacting in real-time, trying to address the immediate impact of the pandemic while simultaneously planning for an uncertain future. 

As a result of the pandemic, airport sponsors and the FAA have been forced to create new policies or apply existing policies and guidance in creative ways to fit unique and changing circumstances.  New federal legislation also may fundamentally change the way airports do business in the future.  It is not clear what new obligations might be placed upon (or assumed by) airport sponsors with respect to the health and safety of the traveling public, but sponsors should begin to prepare on several fronts. 

FAA Compliance Guidance for Airport Sponsors

A dramatic drop in operations, nearly empty terminals, requests from tenants and airlines for rent or fee deferrals or abatements, and state and local health restrictions, have all raised new concerns about how airport sponsors may remain in compliance with their federal grant obligations.  In response to many questions from airport sponsors and industry groups, FAA released a series of compliance guidance documents and new policies over the past six weeks. 

In the early days of the pandemic, when state and local governments began imposing the first series of shutdown orders and closing many public facilities, FAA issued a Compliance Guidance Letter (“CGL”) stating that the complete or partial closure of an airport for public health concerns would qualify as closure for a “non-aeronautical purpose,” which must be approved by the FAA.  Shortly thereafter, FAA issued separate guidance for state and local governments considering restrictions that might adversely affect air transportation (e.g., quarantine or travel restrictions on persons coming from virus hot spots).  That guidance again noted that an airport cannot close for public-health reasons without FAA approval, and encouraged governments to work with aviation stakeholders (including airports) in the development and implementation of any restrictions. 

With demand for air travel near zero, airlines also sought to ground their fleets and temporarily park aircraft at airports across the country.  In response, FAA published a Part 139 Cert Alert reminding sponsors of their safety and accessibility obligations related to runways and taxiways.  FAA more recently published a second Part 139 Cert Alert regarding best practices for the issuance of Notice to Airmen (NOTAMs) when closing runways and/or taxiways to temporarily park aircraft.

On April 4, FAA published an updated version of its more comprehensive guidance for airport sponsors that touched on a wide variety of compliance issues.  It refined several of the earlier documents discussed above, and also addressed several new and critical points.  While largely avoiding black-and-white statements or bright-line rules, FAA generally stated that airport sponsors may consider waiving (not just deferring) fees and rents owed by airport tenants, so long as its determination carefully considered contractual terms, debt service requirements, and other sponsor financial obligations, as well as any decline in fair market value, loss of services, and/or changes to volume of traffic and economy of collection as a result of COVID-19.  On the issue of closing airports, the guidance clarified FAA’s earlier positions and distinguished between closing aeronautical facilities (allowed only after advance consultation with the FAA) and closing non-aeronautical facilities (not likely to be a grant assurance violation).  The guidance instructed that prohibiting flights from particular locations (e.g., virus hot spots) is a violation of federal law, unless approved in advance by the FAA.  However, the FAA also acknowledged there may be instances in which it would be appropriate to require flights to land at certain airports for health screening, provided that the FAA approved such a measure. 

With respect to public health measures, the guidance stated that the FAA will not generally allow an airport sponsor to commit airport employees or resources to conducting public health screenings, although the sponsor may accommodate local public health officials to conduct screenings at the airport.  Significantly, the FAA did not object to temporary limits on recreational aeronautical activities (e.g., flight training, sky diving), provided that they are implemented pursuant to the order of public health officials whose geographic jurisdiction includes the airport. 

The FAA stresses that these guidance documents are not binding and sponsor compliance is voluntary, but they are nevertheless an important indication of the FAA’s views on sponsors’ grant assurance obligations in the context of the current crisis.  The guidance emphasizes that the FAA will be flexible in accepting certain temporary or emergency accommodations that might otherwise be impermissible, and that it will evaluate all restrictions or accommodations in the unique context of the particular airport.

CARES Act Implications for Airports

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law as Public Law No. 116-136.  The CARES Act is a sprawling piece of legislation that provides financial relief to many sectors of the American economy, including airports and some of their business partners (primarily airlines and airline service providers). 

Of most interest to airport sponsors, the CARES Act allocates $10 billion in funds to be made available to airports, which are not subject to many of the usual restrictions associated with federal grant money.  The CARES Act prescribes a methodology for allocating amounts to individual airports that is multi-faceted and generally tied to an airport’s level of debt and activity level.  The FAA’s calculation of the amounts available to each airport has been heavily scrutinized, as some small airports with no debt are presumptively entitled to millions of dollars in funding.  This apparent discrepancy has led the FAA to cap the CARES Act funds available to an airport at four times that airport’s annual operating budget.

To obtain CARES Act funds, sponsors must complete a short application (if funds will be used for new capital projects, additional coordination with the ADO is required).  Once funds are received, they may be used for any purpose for which airport revenue may lawfully be used: operating or maintenance expenses, capital costs, or debt service.  As a condition of receiving the funds, sponsors of hub or primary airports must continue to employ, through December 31, 2020, at least 90% of the number of full-time equivalent employees employed (after making adjustments for retirements or voluntary employee separations) as of March 27, 2020.  FAA has indicated that, consistent with the CARES Act, it will not require compliance with all Airport Improvement Program grant assurances, but that a certain subset may be included in the grant agreement.  FAA has published an extensive FAQ document on CARES Act issues, but again cautions that it is not binding and subject to future revisions.

Airlines are also eligible for certain financial relief in the form of grants and loans through the CARES Act.  As a condition of receiving that aid, airlines must commit to a host of conditions, including providing minimum air service nationwide.  On April 7, the United States Department of Transportation issued its final order specifying the carriers and points that would be covered by the minimum air service obligations.  Many airlines have subsequently applied for exemptions from parts of these obligations, though the Department has denied many of those requests.

Looking Ahead: Public Health Requirements and Other Considerations

As the expiration of the state stay-at-home orders leads to the slow recovery of air travel, there is little doubt that the industry will look significantly different from just two months ago.  There have not yet been any federally mandated health screenings or personal protective equipment measures directed at airports in particular.  More broadly, the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that employers may require employees to wear masks to prevent the spread of COVID-19.  Many state and local governments have mandated that individuals wear masks in public places (including airports in some cases) or that employers provide masks for their employees.  In addition, many airlines have announced that they will require passengers to wear masks on flights.  At least one airport terminal operator is independently taking steps to implement health screenings. 

For now, all of these requirements, guidelines, and practices are an evolving patchwork, but airport sponsors should be prepared to act as new federal or state mandates are announced (or public pressure demands additional health precautions).  Momentum is already building on this front; on May 5, Senators Edward Markey and Richard Blumenthal introduced a bill that would require several federal agencies to assemble a joint task force (with airport operator participation) to provide emergency plans, guidelines, and recommendations on the safe and healthy resumption of air travel.  Both during and after any federal process for imposing new mandates or recommendations, it will be critical for airport sponsors to coordinate with the FAA, airline stakeholders, and other tenants to ensure that responsibility for compliance and enforcement is appropriately allocated.  Airport sponsors need to consider carefully both their state and local authority to implement health screening, the liability implications of screenings, any applicable state privacy laws regarding the collection and storage of medical information, as well as equal protection issues related to disability rights or accommodations.  The practicality of handling persons who test positive under the screening protocol will also raise legal issues.

Sponsors will likely face a slew of issues that are not a result of a change in the law but rather brought on by the harsh reality of the economic fallout of the crisis.  Sponsors should expect and plan for stakeholder bankruptcies, including airlines, FBOs, concessionaires, rental car companies, and others.  Airport lawyers will need to advise airport management in careful planning for bankruptcy and structuring any accommodations to minimize bankruptcy exposure.  Given the likelihood of significant bankruptcy filings, Kaplan Kirsch & Rockwell’s bankruptcy lawyers are providing advance planning advice to many airport sponsors.

Claims for damages related to potential infections at airports (both from passengers and employees) are possible, and sponsors should check whether such claims might be mitigated or eliminated through state sovereign immunity statutes or physical protective measures at the airport itself.  Sponsors should also consider whether it is necessary to update its insurance coverages, governing or form documents (e.g., minimum standards, rules and regulations, standard leases), and planning and forecast documents to account for new compliance measures, increased liability risks, or reductions in revenue.

This Airport Law Alert provides a high-level overview of airport law issues related to the COVID-19 pandemic.  It is not intended to be a comprehensive analysis of all applicable law, nor should it be interpreted as applying to any particular factual situation.  For more information or to discuss a specific set of circumstances, please contact the Kaplan Kirsch & Rockwell attorney(s) that normally represent you or any member of our Airports practice.  For questions about bankruptcy planning, contact Eric Smith, Dave Bannard, or Eric Pilsk. 
 

On April 27, 2020, the Denver City Council approved an ordinance delaying the effective date of the City’s 2019 Building and Fire Code, adopted in December 2019.  This action will allow developers and contractors additional time to submit projects designed under the 2016 Denver Building and Fire Code for building permit review.  The ordinance also allows developers and contractors issued a building permit under the 2016 Code additional time to commence construction. 

The ordinance responds to expected delays in project construction as a result of the COVID-19 pandemic.  This action will allow projects designed under the 2016 Code to proceed in the future without having to undergo costly redesigns to meet 2019 Code requirements.   

Key provisions of the ordinance include: 

• The effective date of the 2019 Code is delayed from late April 2020 to July 31, 2020.  This allows developers and contractors who have not yet submitted permit applications to do so using the standards of either the 2016 Code or the 2019 Code until July 31, 2020.    
• No changes will be required to construction documents, construction or the designated occupancy of a structure that received a building permit under the 2016 Code as long as construction is pursued in good faith prior to December 31, 2020.  
• Until December 31, 2020, “major projects” that are in design but do not submit permit applications until after July 31, 2020 may request to be reviewed and permitted under the 2016 Code.  This request must be made to the Denver Building Official and include certain specified information, including a commitment to commence construction by July 31, 2021 and complete construction by July 31, 2023.

The text of the 2019 Code amendment and additional information regarding the City Council ordinance are available here. The amendment will apply differently depending on a project’s status, and developers and contractors should seek legal counsel to understand how the amendment affects their projects. 

Please contact Sarah Rockwell or Hanna Gustafsson if you have any questions about this Law Alert. Thank you also to Steve Ferris from The Real Estate Garage who contributed to this Alert. 

Click here to view the publication.

This Digest is a summary of the important developments in airport law in 2019, including: a list of principal cases decided over the last year; new DOT and FAA rules, policies, and guidance; and reports, studies, and articles of particular interest to airport legal professionals.  We have attempted to provide links to publicly available documents, and most other documents are available via subscription services such as Westlaw or LexisNexis.

2019 was a busy year for FAA and airports.  On the issue of likely the most significance, airport sponsors continue to grapple with the effects of FAA-mandated use of firefighting foam that contains per- and polyfluoroalkyl substances (PFAS), a potential groundwater and soil contaminant.  Although Congress did recently address the issue in the National Defense Authorization Act, legislation at the state level has moved more swiftly.  For a summary of recent PFAS news, see Kaplan Kirsch & Rockwell’s PFAS News Alert issued December 19.  In other news, on August 12, 2019, the agency finally received a new permanent Administrator with the swearing-in of Stephen M. Dickson.  Finally, on nearly the last day of the year, FAA published its long-awaited notice of proposed rulemaking for remote identification of unmanned aircraft, a rulemaking that is expected to bring greater clarity to airport sponsors’ rights and responsibilities.  More detail on this rulemaking can be found on page 2 here.

Looking ahead to 2020, the upcoming election is likely to color many Congressional and executive branch actions and could slow Washington to a crawl.  Nonetheless, there are indications that Congress may consider additional PFAS-related legislation in the coming months.  Additional FAA guidance on provisions from the 2018 FAA Reauthorization Act is also possible at some point in the next year.

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editor Nicholas M. Clabbers or any other Kaplan Kirsch & Rockwell attorney who normally represents you.

LITIGATION (In Reverse Chronological Order)

FEDERAL AND SELECT STATE COURT DECISIONS

Subject Matter Jurisdiction. Kushino v. FAA, Civ. Action No. 4:19-CV-00076-JHM, 2019 U.S. Dist. LEXIS 210086 (W.D. Ken. Dec. 4, 2019) (dismissing NEPA action against FAA because federal statute provides Court of Appeals exclusive jurisdiction for review of final FAA actions).

Environmental Impact. City of Burien v. Elwell, Case No. 18-71705, 2019 U.S. App. LEXIS 35619 (9th Cir. Nov. 27, 2019) (remanding to FAA with instructions to consider the potential cumulative impact of all relevant reasonable foreseeable future actions because of FAA’s failure to comply with NEPA when it approved a procedure having the effect of low-flying planes over a city after takeoff from a nearby airport).

Skydiving.  Skydive Myrtle Beach Inc., vs. Horry County, Opinion No. 27930, 2019 S.C. LEXIS 113, (S.C. Sup. Ct. Nov. 20, 2019) (finding that removal of skydiving tenant from a hangar where space-use permit had expired was lawful).

Land Use. The Umstead Coalition v. Raleigh Durham Airport Auth., No. 19 CVS 3859 (Sup. Ct. Wake Cty., N.C. Nov. 8, 2019) (granting airport authority’s motion for summary judgment against claim that quarry lease between private party and the authority violated federal law because it was executed without FAA approval, and finding that claim had no merit because FAA already determined approval was not necessary under Section 163 of the FAA Reauthorization Act of 2018).

Drones and Agency Actions. Taylor v. FAA, No. 18-cv-00035, 2019 U.S. Dist. LEXIS 134309 (D.D.C. Aug. 9, 2019) (dismissing for failure to state a claim or lack of standing various causes of action seeking remuneration for FAA’s assessment of registration fees on drone operators).

Skydiving and Preemption.  Citizens for a Safe Chatham Airport, Inc. vs. Town of Chatham, Docket No. 1572CV00612 (Barnstable Cty., Mass. Aug. 2, 2019), appeal pending (where complaint alleged that skydiving operation at airport constituted a public nuisance, granting defendant airport sponsor’s motion for summary judgment on preemption grounds).

Skydiving and Part 16. Davis v. Horry Cty. Council, No. 4:17-cv-391-DDC, 2019 U.S. Dist. LEXIS 124747 (D. S.C. July 25, 2019) (dismissing plaintiffs’ § 1983 claim related to sponsor shutdown of skydiving business as an impermissible attack on earlier FAA Part 16 determination finding that those operations were unsafe).

Government Contracting. Pipeline Contrs., Inc. v. Keystone Airpark Auth., 276 So. 3d 436 (Fla. App. July 10, 2019), pet. for reh’g denied (private contractor was estopped from alleging that airport authority was improperly formed under state law and therefore lacked legal capacity to enter into contract because contractor had accepted benefit of the contract).

Preemption. Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65 (2d Cir. July 9, 2019) (holding that state statute limiting length of runway was preempted by federal safety standards).

Judicial Review. Kisor v. Wilkie, 139 S. Ct. 2400 (June 26, 2019) (non-airport case declining to overrule precedent related to judicial deference to agency interpretations of its own rules (Auer deference)).

Inverse Condemnation and Takings. Knick v. Twp. of Scott, 139 S. Ct. 2162 (June 21, 2019) (non-airport case overruling 1985 precedent and holding that a plaintiff alleging a taking by a local government under the United States Constitution and § 1983 no longer needs to exhaust available remedies in state court before filing suit in federal court).

Skydiving/Jurisdiction. Mile-Hi Skydiving Center, Inc. v. City of Longmont, Case No. 2019CV30144 (Boulder Cty., Co. May 28, 2019) (dismissing suit to enjoin enforcement of new permit fee structure of parachute landing area based on alleged violations of FAA grant assurances because FAA has exclusive jurisdiction over grant assurance claims)

SIDA Regulations. Ho v. Lopano, Case No. 8:18-cv-2802-T-36SPF, 2019 U.S. Dist. LEXIS 87801 (M.D. Fla. May 24, 2019) (granting airport’s motion to dismiss where plaintiff alleged airport sponsor, by asking for additional paperwork on a prior criminal proceeding, had improperly withheld his SIDA badge in violation of federal regulations).

Revenue Diversion. Air Transp. Ass’n. of Am., Inc. v. FAA, 921 F.3d 275 (D.C. Cir. Apr. 23, 2019), pet. for reh’g denied (denying petition for review of Part 16 decision finding no violation of Grant Assurance 25 where airlines alleged that airport sponsor had impermissibly charged them certain utility fees it then paid to the City of Portland).

Preemption and Land Use. Helicopters for Agric. v. Cty. of Napa, 384 F. Supp. 3d 1035 (N.D. Cal. Apr. 18, 2019) (finding that local ordinance regulating the takeoff and landing of helicopters from private property outside of airports was not preempted by federal law).

Antitrust. Dakota Terr. Tours ACC v. Sedona-Oak Creek Airport Auth. Inc., 2019 U.S. Dist. LEXIS 61678 (D. Az. Apr. 10, 2019) (dismissing federal anti-trust claims by unsuccessful lease applicant against municipal airport sponsor because sponsor was immune under the “state action” doctrine).

Grant Assurances. Boggs v. FAA, 76 Fed. App’x 80 (6th Cir. Mar. 7, 2019) (on appeal of an FAA decision under 14 C.F.R. Part 16, affirming findings that airport sponsor was in compliance with Grant Assurance 4 and had no affirmative obligation to purchase plaintiffs’ property near the airport).

Federal Takings. Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081 (9th Cir. Mar. 1, 2019) (in case involving condemnation of property for the construction of an airport, affirming district court decision, and holding that a landowner’s ancestral property right was not a constitutionally protected interest under the Due Process Clause).

Through-the-Fence Agreements. Silverwing at Sandpoint, LLC v. Bonner Cty., 435 P.3d 1106 (Id. Feb. 26, 2019) (reversing district court decision and holding that owner of airport-adjacent property could not maintain a promissory estoppel claim because it could not show “substantial economic detriment” based upon the modification of an impermissible through-the-fence agreement and planned construction on the Airport Layout Plan that was substantially delayed).

Open Meetings and Records. Elec. Privacy Info. Ctr. v. Drone Advisory Comm., Civ. Action No. 18-833 (RC), 2019 U.S. Dist. LEXIS 28990 (D.D.C. Feb. 25, 2019) (dismissing most open meetings claims under various federal statutes for lack of subject matter jurisdiction but denying motion to dismiss as to plaintiff’s public records claims under the Administrative Procedures Act).

Reversionary Clauses. Fish v. Magnum Aviation, No. 18-cv-06671-VKD, 2019 U.S. Dist. LEXIS 26271 (N.D. Cal. Feb. 19, 2019) (dismissing various challenges to a reversionary clause in a tenant’s hangar lease and holding that because the sponsor was acting in its proprietary—not governmental—capacity, there could be no Fifth Amendment taking).

Public Records. Wyoming Jet Center, LLC v. Jackson Hole Airport Bd., 2019 WY 6 (Jan. 15, 2019) (reversing lower court decision and holding that an airport was a political subdivision subject to the Wyoming Public Records Act and that it must make certain documents publicly available).

Car Sharing Program and Fees.  Turo, Inc. v. City of Los Angeles, Case No. 2:18-cv-06055-CAS (GJSx), 2019 U.S. Dist. LEXIS 6532 (C.D. Cal. Jan. 14, 2019) (denying motion to dismiss claim for declaratory relief seeking ruling that airport sponsor has no authority to impose permitting scheme and associated charges on car sharing service).

PENDING CASES

Metroplex/Next Gen.  City of Los Angeles v. FAA, No. 19-73164 (9th Cir. petition filed Dec. 12, 2019) (petition for review of FAA decision to allow flight tracks for departing aircraft at Hollywood Burbank Airport to shift following Metroplex implementation).

Slots. Spirit Airlines, Inc. v. U.S. Dep’t of Transp., Case. No 19-1248 (D.C. Cir. petition for review filed Nov. 25, 2019) (petition for review challenging FAA decision not to immediately allow new flights at Newark Liberty International Airport (EWR) following Southwest Airlines’ cessation of flights from EWR).

Essential Air Service. Bd. of Cty. Comm’rs of Wash. Cty. v. United States Dept. of Trans., No. 19-1210 (D.C. Cir. oral argument scheduled Feb. 20, 2020) (challenging FAA decision to remove Hagerstown Regional Airport from Essential Air Service program).

Metroplex/NextGen. City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. motion to stay briefing filed Dec. 16, 2019) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport).

Metroplex/NextGen. Howard Cty. v. FAA, No. 18-2360 (4th Cir. supp. app’x filed Aug. 1, 2019) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).

Car Sharing Programs. Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. complaint filed June 3, 2019) (action alleging car sharing service is illegally operating at airport without a car rental permit from sponsor and trespassing at airport, among other claims).

Metroplex/NextGen. Maryland v. FAA, No. 18-1173 (D.C. Cir. argued Nov. 14, 2019) (petition for review of FAA implementation of new approaches at Washington National Airport).

Metroplex/NextGen. Maryland v. FAA, No. 18-1302 (D.C. Cir. case in abeyance pending FAA reconsideration) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).

ADMINISTRATIVE DECISIONS

Revenue Generation and Airport Finances. Smith, et al. v. City of Santa Monica, FAA Docket 16-16-02, Director’s Determination (Nov. 8, 2019) (finding the City in non-compliance with Grant Assurance 25, concerning certain advances and loans/grants made to the airport fund because they were not clearly documented as loans or interest-bearing loans when they were made, as required by the Revenue Use Policy).

Emotional Support Animals. Complainant v. Greenville-Spartanburg Airport Dist., DOT Complaint No. 2017-0353 (Oct. 24, 2019) (withdrawing earlier decision that found sponsor violated its obligations under the Air Carrier Access Act by requiring emotional support animals to be inside a carrier while passing through the terminal).

Airport Privatization.  In Re Privatization of Airglades Airport, Hendry County, Florida, Record of Decision (Sept. 30, 2019) (approving sale of airport to Airglades LLC, the first approved airport sale under the new Airport Investment Partnership Program).

Proprietary Exclusive Rights. Wyoming Jet Ctr., LLC v. Jackson Hole Airport Bd., Part 13 Proceeding (July 31, 2019) (finding no grant assurance violations where airport sponsor announced plans and took steps to acquire the sole existing FBO and operate it on a proprietary exclusive basis but did not in the interim permit a second FBO to operate on the airport).

ACDBE Relations and Enforcement. Cordial Endeavor Concessions of Atlanta, LLC v. City of Atlanta, FAA Docket 16-17-01, Director’s Determination (July 29, 2019) (finding the City of Atlanta in violation of Grant Assurance 37, Disadvantaged Business Enterprises, because it failed to implement and administer a program to monitor an ACDBE joint venture operating agreement).

Leasing and Development. Robinson Air Crane, LLC v. St. Lucie Cty., FAA Docket No. 16-18-02, Director’s Determination (July 19, 2019) (finding no grant assurance violations where airport sponsor did not approve an applicant’s lease proposals that lacked documentation of adequate stormwater drainage and participation in planning process).

Minimum Standards. Walker AG Supply, LLC v. Wahoo Airport Auth., FAA Docket No. 16-14-08, Final Agency Decision and Order (Mar. 9, 2019) (affirming Director’s Determination, which found no violations of the grant assurances where sponsor did not permit an agricultural service provider to operate at the airport because it did not meet the airport’s minimum standards).

Use Restrictions. Forman v. Palm Beach Cty., FAA Docket No. 16-17-13, Director’s Determination (Feb. 22, 2019) (finding sponsor not in compliance with Grant Assurance 22 where it prohibited all jet aircraft operations), appeal pending.

Unjust Discrimination and Lease Terms. Minch v. City of Cottonwood, FAA Docket No. 16-17-05, Director’s Determination (Jan. 18, 2019) (finding no unjust discrimination or violation of other grant assurances where leases were negotiated at different points in time and the wording and structure were slightly different, but the terms were functionally identical).

Rates and Charges. Sound Aircraft Servs. v. Town of E. Hampton, FAA Docket No. 16-14-07, Director’s Determination (Jan. 2, 2019) (finding no grant assurance violations where complainant alleged that the Town impermissibly raised its rates and charges and violated FAA’s prohibition against revenue diversion when it raised both landing fees and fuel flowage fees).

FEDERAL RULES, ORDERS, AND GUIDANCE (In Reverse Chronological Order)

THE WHITE HOUSE

Executive Order No. 13858, Strengthening Buy-American Preferences for Infrastructure Projects, 84 Fed. Reg. 2039 (Jan. 31, 2019).

DEPARTMENT OF TRANSPORTATION AND FAA ORDERS, POLICIES, AND ADVISORY CIRCULARS

Notice of Proposed Rulemaking, Remote Identification of Unmanned Aircraft Systems, 84 Fe. Reg. 72,438 (Dec. 31, 2019) (comments due Mar. 2,2020).

Final Rule, Administrative Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019) (eff. Jan. 27, 2020).

Advisory Circular No. 150/5100-13C, Development of State Aviation Standards for Airport Pavement Construction (Dec. 6, 2019).  

Part 139 CertAlert No. 19-04, Non-Compliant Fire Service Plus Product FireAde Aqueous Film Forming Foam (AFFF) (Dec. 4, 2019).

Part 139 CertAlert No. 19-02, Aqueous Film Forming Foam (AFFF) Testing at Certificated Part 139 Airports (Oct. 29, 2019).

Advisory Circular No. 150/5050-4A, Community Involvement in Airport Planning (Oct. 28, 2019).

Reauthorization Program Guidance Letter (R-PGL) 19-07, DBE & Related Programs (Oct. 25, 2019).

Draft Advisory Circular No. 150/5220-9B, Aircraft Arresting Systems on Civil Airports (issued Oct. 2019).

Draft Advisory Circular No. 150/5000-9B, Guidelines for Sound Insulation of Structures Exposed to Aircraft Noise (draft issued Oct. 2019, comment period closed).

Draft Advisory Circular No. 150/5200-18D, Airport Safety Self-Inspection (issued Sept. 2019).

Order 5090.5, Formulation of the NPIAS and ACIP (Sept. 3, 2019).

Draft Advisory Circular No. 150/XXXX-XX, Filing Notice of Construction or Alteration Located on a Public Use Airport (issued Aug. 2019).

Final Statement Of Enforcement Priorities Regarding Service Animals, Guidance on Nondiscrimination on the Basis of Disability in Air Travel, 84 Fed. Reg. 43,480 (Aug. 21, 2019).

Memorandum For Secretarial Officers And Heads Of Operating Administrations, Interim Policy on One Federal Decision Implementation (Aug. 19, 2019).

Memorandum For Secretarial Officers And Heads Of Operating Administrations, Interim Policy on Page Limits for NEPA Documents and Focused Analyses (Aug. 19, 2019).

Program Guidance Letter 19-03, Grants for Predevelopment Costs for Airport Investment Partnership Program (July 29, 2019).

Reauthorization Program Guidance Letter (R-PGL) 19-02, Planning and Project Eligibility (July 24, 2019).

Advisory Circular No. 150/5300-16B, General Guidance and Specifications for Aeronautical Surveys: Establishment of Geodetic Control on or Near an Airport (July 8, 2019).

Draft Advisory Circular No. 150/5210-14C, Aircraft Rescue Fire Fighting Equipment, Tools and Personal Protective Equipment (issued June 13, 2019).

Draft Advisory Circular No. 150/5210-7E, Aircraft Rescue and Fire Fighting Communications (issued June 13, 2019).

Program Guidance Letter 19-01, Aqueous Film Forming Foam (AFFF) Input-Based Testing Equipment (June 10, 2019).

Reauthorization Program Guidance Letter (R-PGL) 19-01, Extended and Expanded Programs (June 3, 2019).

Notice, Implementing the Exception for Limited Recreational Operations of Unmanned Aircraft, 84 Fed. Reg. 22,552 (May 17, 2019).

Advisory Circular No. 150/5340-1M, Standards for Airport Marking (May 10, 2019).

Advisory Circular No. 150/5340-18G, Standards for Airport Sign Systems (May 10, 2019).

PFC Update, PFC 72-19, Changes to the Passenger Facility Charge (PFC) Levels Above $3 (May 9, 2019).

Letter to Airport Sponsors re:  UAS Detection Systems and Attachment A, Attachment B, and Attachment C (May 7, 2019).

PFC Update, PFC 71-19, Oversight of Public Agency Passenger Facility Charge (PFC) Program (Apr. 1, 2019).

Advisory Circular No. 150/5345-43J, Specification for Obstruction Lighting Equipment (Mar. 11, 2019).

Order JO 7400.2M, Procedures for Handling Airspace Matters (Feb. 28, 2019).

Order 5100.38D, Change 1, Airport Improvement Program Handbook (Feb. 26, 2019).

Interim Final Rule, External Marking Requirement for Small Unmanned Aircraft, 84 Fed. Reg. 3669 (Feb. 13, 2019).

Advance Notice of Proposed Rulemaking, Safe and Secure Operations of Small Unmanned Aircraft Systems, 84 Fed. Reg. 3732 (Feb. 13, 2019).

Notice of Proposed Rulemaking, Operation of Small Unmanned Aircraft Systems Over People, 84 Fed. Reg. 3856 (Feb. 13, 2019).

Notice of Proposed Rulemaking, Update to Investigative and Enforcement Procedures (14 C.F.R. Part 13), 84 Fed. Reg. 3614 (Feb. 12, 2019).

Advisory Circular No. 150/5200-36B, Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on Airports (Jan. 24, 2019).

Draft Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Jan. 18, 2019) (comment period closed).

Part 139 Cert Alert No. 19-01, Aqueous Film Forming Foam (AFFF) Testing at Certificated Part 139 Airports (Jan. 17, 2019) (cancelled by CertAlert No. 19-02).

ENVIRONMENTAL PROTECTION AGENCY

Document No. EPA 823R18004, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Feb. 2019).

DEPARTMENT OF HOMELAND SECURITY

Fact Sheet, Counter Unmanned Aircraft Systems Legal Authorities (May 2019).

INTERNAL REVENUE SERVICE

Private Letter Ruling No. 201918008, Statutory Safe Harbor Relating to the Allowable Term for Leases of Port and Airport Facilities Financed with Tax-Exempt Private Activity Bonds (released May 3, 2019).

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REPORTS, STUDIES, ARTICLES, AND OTHER PUBLICATIONS (In Reverse Chronological Order)

U.S. DEPARTMENT OF TRANSPORTATION

Office of Inspector General, Report No. AV2019062, FAA Has Made Progress in Implementing Its Metroplex Program, but Benefits for Airspace Users Have Fallen Short of Expectations (Aug. 27, 2019).

Office of Inspector General, Report No. AV2019050, FAA Has Taken Steps to Advance SENSR Program, but Opportunities and Risks Remain (Apr. 23, 2019).

Office of Inspector General, Report No. AV2019015, Most Public Agencies Comply With Passenger Facility Charge Program Requirements, But FAA Can Improve the Use of Its Oversight Tools (Dec. 18, 2018).

U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Report No. GAO-20-136, Unmanned Aircraft Systems: FAA Should Improve Drone-Related Cost Information and Consider Information and Consider Options and Recover Costs (Dec. 17, 2019).

Report No. GAO-20-16, Information on Prices for Aviation Services and FAA’s Oversight of Grant Requirements (Nov. 26, 2019).  

Report No. GAO-19-172, Small Community Air Service Development: Process for Awarding Grants Could Be Improved (Mar. 2019).

Report No. GAO-19-238R, Airport Funding: Alternative Methods for Collecting Airports’ Passenger Facility Charges and Implementation Factors to Consider (Dec. 20, 2018).

CONGRESSIONAL RESEARCH SERVICE

Report No. LSB10363, Is a TSA Screener a “Law Enforcement Officer”? Court Allows Lawsuit Against United States to Proceed (Nov. 19, 2019).  

Report No. R42781, Federal Civil Aviation Programs: In Brief (Oct. 17, 2019).

Report No. R43327, Financing Airport Improvements (Mar. 15, 2019).

Report No. R44176, Essential Air Service (EAS) (Dec. 19, 2018).

TRANSPORTATION RESEARCH BOARD, AIRPORT COOPERATIVE RESEARCH PROGRAM

Research Reports

Research Report 204: Air Demand in a Dynamic Competitive Context with the Automobile (Nov. 21, 2019)

Research Report 209: Integrating Sustainability Planning and the Environmental Review Process (Nov. 18, 2019)

Research Report 206: Guidebook on Effective Land Use Compatibility Planning Strategies for General Aviation Airports (Nov. 13, 2019)

Research Report 207: Optimizing the Use of Electric Preconditioned Air (PCA) and Ground Power Systems for Airports (Nov. 4, 2019)

Research Report No. 208: Benefit Cost Analyses Guidebook for Airport Stormwater (Oct. 28, 2019)

Research Report 212: Airports and Unmanned Aircraft Systems, Volume 3: Potential Use of UAS by Airport Operators (pre-publication draft Oct. 18, 2019)

Research Report 212: Airports and Unmanned Aircraft Systems, Volume 2: Incorporating UAS into Airport Infrastructure—Planning Guidebook (pre-publication draft Oct. 17, 2019)

Research Report 212: Airports and Unmanned Aircraft Systems, Volume 1: Managing and Engaging Stakeholders on UAS in the Vicinity of Airports (pre-publication draft Oct. 9, 2019)

Research Report 205: Revolving Funds for Sustainability Projects at Airports (Sep. 13, 2019)

Research Report 202: Developing Innovative Strategies for Aviation Education and Participation (July 30, 2019)

Research Report 201: Airport Emergency Communications for People with Disabilities and Others with Access and Functional Needs (July 16, 2019)

Research Report 198:  Wetland Mitigation, Volume 2, A Guidebook for Airports (June 11, 2019) (associated Appendices available at same link).

Research Report 200:  Using GIS for Collaborative Land Use Compatibility Planning Near Airports (May 7, 2019).

Research Report 197:  Guidebook for Developing a Comprehensive Renewable Resources Strategy (May 3, 2019).

Research Report 16:  Guidebook for Managing Small Airports – Second Edition (Apr. 30, 2019), see also associated WebResource 6 below.

Research Report 194:  Using Disaggregated Socioeconomic Data in Air Passenger Demand Studies (Mar. 24, 2019).

Research Report 195:  Best Practices for Airport Obstruction Management Guidebook (Mar. 15, 2019), see also associated WebResource 7 below.

Research Report 192:  Airport Management Guide for Providing Aircraft Fueling Services (Mar. 7, 2019).

Research Report 196:  Guidebook for Integrating Collaborative Partnering into Traditional Airport Practices (Feb. 20, 2019).

Synthesis Reports

Synthesis 104: Current Landscape of Unmanned Aircraft Systems at Airports (Dec. 13, 2019).

Synthesis 103: Promoting Aviation Career Education in High Schools and Community Colleges (Nov. 26, 2019).

Synthesis 102: Value, Benefits, and Limitations of Qualifications-Based Selection for Airport Project Delivery (Nov. 22, 2019).

Synthesis 101: Communication Strategies for Airport Passenger Access and Mobility (Nov. 21, 2019).

Synthesis 100: Airport Greenhouse Gas Reduction Efforts (Oct. 21, 2019).

Synthesis 98: Simulation Options for Airport Planning (Sept. 19, 2019).

Synthesis 99: Emergency Working Groups at Airports (Sept. 18, 2019).

Synthesis 94: Attracting Investment at General Aviation Airports Through Public–Private Partnerships (Sept. 4, 2019).

Synthesis 97: How Airports Plan for Changing Aircraft Capacity: The Effects of Upgauging (Aug. 29, 2019).

Synthesis 96: Practices to Mitigate Alkali-Silica Reaction (ASR) Affected Pavements at Airports (Aug. 22, 2019).

Synthesis 95: Airport Incident Reporting Practices (May 17, 2019).

Legal Research Digests

Legal Research Digest 37:  Legal Issues Relating to Airports Promoting Competition (Nov. 19, 2019).

Web-Only Documents

WebResource 6:  Resources for Managing Small Airports (Mar. 20, 2019).

WebResource 7:  Best Practices for Airport Obstruction Management Library (Mar. 5, 2019).

OTHER INSTITUTIONAL AUTHORS

Blue Ribbon Task Force on UAS Mitigation at Airports, Final Report (Oct. 2019).

Blue Ribbon Task Force on UAS Mitigation at Airports, Interim Report (July 2019).

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Click to download a PDF of this Semi-Annual Airport Law Digest.

As the number and uses of unmanned aircraft continue to grow, one of the most vexing problems faced by airport sponsors and state and local law enforcement agencies has been how to identify an unmanned aircraft in the air and, if necessary, track down its operator.  On December 31, 2019, the FAA issued a Notice of Proposed Rulemaking (NPRM) that puts forward a comprehensive framework for the remote identification of unmanned aircraft systems (UAS) but leaves many questions regarding the interface between the FAA and local law enforcement unanswered.

The proposed rule is primarily addressed at three segments of the industry: the manufacturers of UAS designed for operation in the United States; the operators of UAS; and third-parties who will be authorized by the FAA as “Remote ID UAS Service Suppliers” (USS), which will collect and store identifying and positional data from an unmanned aircraft and its ground control station.

Manufacturers would be required to certify compliance with one of two sets of performance-based specifications.  “Standard” remote identification UAS would publicly broadcast certain identifying and positional data directly from the unmanned aircraft, as well as transmit such data over the internet to a Remote ID USS.  A “limited” remote identification UAS would transmit its location and that of the ground control station to a Remote ID USS before it could be operated but would not broadcast this data during flight.  A “limited” remote identification UAS would not be capable of operation more than 400 feet from its ground control station.

Operators would be required to register each UAS using a unique serial number, in theory allowing the FAA and local law enforcement agencies to cross-reference data obtained from a UAS broadcast or a Remote ID USS to identify the operator.  But the NPRM does not explain exactly how this cross-referencing will work.  The FAA proposes to require a standard remote identification UAS to broadcast using a “non-proprietary specification” that is “interoperable with personal wireless devices,” without mandating a specific or single technology.  And while the “FAA envisions it would facilitate near real-time access to the remote identification message elements (paired with certain registration data, when necessary) for accredited and verified law enforcement and Federal security partners,” it does not propose to develop an official mechanism for that interface.  Indeed, in a footnote the FAA notes its “anticipat[ion] that in the future, third parties may develop mobile phone applications for law enforcement use.”

Amateur-built and certain other UAS that do not satisfy remote identification standards would be confined to specific “Identification Areas” established by community-based organizations, such as the Academy of Model Aeronautics, with approval and oversight of the FAA. 

Under this framework, a UAS operating outside of an established Identification Area will be required to be identifiable via its broadcast or, in the case of a limited remote identification UAS, by querying the FAA or a Remote ID USS through an as-yet unknown interface.  However, it is important to recognize that the proposed rule does not provide a mechanism to identify UAS that are being purposefully operated in violation of these rules.  The FAA notes, “Although remote identification of UAS may not deter nefarious actors, it would allow the swift interdiction of the clueless and careless persons manipulating the flight controls of UAS and shift law enforcement and security partners’ UAS protection efforts to the truly nefarious actors.”

As we have advised in previous alerts, the authority to intercept and disable nefarious UAS is, for the time being, still vested exclusively in federal law enforcement authorities, which generally lack the resources to respond promptly to a UAS-related security event.  It is critically important, therefore, that airport sponsors and state and local law enforcement agencies continue to work with their federal counterparts in developing timely response strategies to unidentified UAS operators.

Under the proposed rule, manufacturers would be given two years to develop compliant UAS, but the operation of UAS without remote identification would not take effect until a year later – three years after the proposed rule’s effective date. 

Comments on the proposed rule are due by March 2, 2020.  Airport sponsors and other state and local agencies should consider submitting comments on the proposed rule because of the unique role that they play in the national aviation system.  Airport sponsors are obligated to protect airspace in the vicinity of their airport and need to ensure prompt and reliable access to UAS remote identification information resources if they are to protect their facilities.  Airports may also want to address the complex division of responsibility regarding UAS enforcement and the challenges that unidentifiable UAS pose in the airport environment.

Airport sponsors who would like assistance in submitting comments or have questions regarding the proposed rule, may want to contact Eric Smith or Steven Osit.

Click here to view the publication.