Homeland Security Says No Ban on Carried-On Large Electronics from Europe – Yet

Yesterday, May 30, 2017, the Department of Homeland Security issued a statement (http://bit.ly/2sexo9A) after a conference call with European Home Affairs Commissioner Dimitris Avramopoulos and Transport Commissioner Violeta Bulc to discuss aviation security. The statement concluded that the Department of Homeland Security was not going to expand the ban on large electronic devices on flights to the U.S. from Europe. However, Secretary Kelly emphasized that the expansion of the ban is “still on the table” and that the DHS will expand the ban “if the intelligence and threat level warrant it.”

Currently, large electronics are banned on flights to the United States from 10 specific airports located primarily in the Middle East: The affected overseas airports are: Queen Alia International Airport (AMM), Cairo International Airport (CAI), Ataturk International Airport (IST), King Abdul-Aziz International Airport (JED), King Khalid International Airport (RUH), Kuwait International Airport (KWI), Mohammed V Airport (CMN), Hamad International Airport (DOH), Dubai International Airport (DXB), and Abu Dhabi International Airport (AUH). Yesterday’s statement does not affect the ban currently in place.

In addition to the announcement that the ban would not be expanded, DHS also indicated in its statement that the European Ministers they agreed on the need to “raise the bar for aviation security globally,” including “through a range of potential seen and unseen enhancements.”  In addition, there was agreement that the U.S. and Europe would “continue to work together to secure global aviation and to maintain clear lines of communication and cooperation.”

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D.C. Circuit Court of Appeals Says FAA Drone Registration Rules Do Not Apply to “Model Aircraft”

On May 19, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in the case Taylor v. Huerta, Case No. 15-1495. The court concluded that the drone registration rules that the Federal Aviation Administration promulgated in December 2015, “Registration and Marking Requirements for Small Unmanned Aircraft,” 80 Fed. Reg. 78,594 (Dec. 16, 2015), do not apply to “model aircraft.”

The Petition for Review, filed by a model aircraft hobbyist, alleged that the FAA Drone Registration Rule were contrary to Section 336 of the FAA Modernization and Reform Act of 2012, which provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The court stated that the because the FAA Drone Registration Rule is “undoubtedly a rule” and is a “rule regarding model aircraft,” “[s]tatutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.” End of inquiry.

The larger question that is left unanswered is what constitutes “model aircraft.” In the past, drones were treated as “model aircraft” that got a pass from being regulated by the FAA under an advisory circular. Thus, one might argue that after this decision recreational drones do not have to be registered so long as they are considered to be “model aircraft.” Currently on its website, the FAA states that:

Congress defined a “model aircraft” as an Unmanned Aircraft System (UAS) that meets all of the following:

  • Is capable of sustained flight in the atmosphere
  • Is flown within visual line-of-sight of the person operating it
  • Is flown for hobby or recreational purposes

https://www.faa.gov/uas/faqs/ Under the terms of the FAA Modernization and Reform Act of 2012 (P.L. 112-95), a model aircraft is defined as “an unmanned aircraft” that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” P.L. 112-95, section 336(c). Thus, the FAA will be hard pressed to separate a “model aircraft” from a “drone.”

Moreover, it seems that any workaround that the FAA might come up with will be stymied by the fact that it is Congress that has conflated “model aircraft” with “drone.” Any attempt by the FAA to separate its definition of “model aircraft” from its definition of “drone,” most likely will be met with lawsuits pointing to Congress’ interpretation in the FAA Modernization and Reform Act of 2012.

It would seem that, at least for the time being, that recreational use of drones under 55 pounds do not require registration.

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Mercatus Center’s Noise Complaint Report Is Illogical and Unreasonable

The Mercatus Center of George Mason University published a report entitled “Airport Noise NIMBYism: An Empirical Investigation” (http://bit.ly/2eNayTd) that comes to the conclusion that a small but vocal minority is affecting aviation noise policy. They come to this conclusion based a perfunctory analysis of noise complaints filed. The report’s methodology and conclusions are unreasonable, illogical and naïve.

The report diminishes the impact of aviation noise on communities by showing that in several cases a few individuals or households accounted for a high percentage of noise complaints. The implicit conclusion is that if people really were affected by aviation noise there would be more unique complainers. This is an unreasonable conclusion. First, this conclusion assumes that noise complaints are a statistically good example of the communities’ opinion of aviation noise. There is no research to support this conclusion. The article by Fidell, Mestre and Sneddon in the Jan-Feb 2012 edition of Noise Control Engineering Journal (title: “A potential role for noise complaints as a predictor of the prevalence of annoyance with aircraft noise”) reaches valid conclusions about noise complaints. Second, it has been my experience that many residents do not believe that noise complaints are an effective tool for expressing their discontent about aviation noise. Because of their belief they do not file noise complaints even though they are severely affected by aviation noise. The issue with filing noise complaints with the airport and/or FAA is that residents in communities do not see any results from filing noise complaints.

Another concern is the report’s emphasis on economic considerations. The report authors continue “[t]here are worrisome signs that this small, frustrated minority of citizens is affecting aviation policy.” They claim that noise abatement has an effect on fuel efficiency, which increases carbon emissions and raises ticket prices. Therefore, the economic considerations should outweigh the concerns of a few “annoying,” but vocal, citizens. This ignores the very real health effects that aviation noise has on people. Summarily dismissing the residents’ concerns as being the result of a “small, frustrated minority” ignores the breadth of the community’s opposition to an increase in aviation noise. The report ignores the FAA’s duty to protect these communities.  See “[T]he Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 USC § 4901(b); see also 49 U.S.C. § 40103(b)(2) “Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . protecting individuals and property on the ground.” The statutes do not state that the FAA should take airline ticket prices into account when deciding whether noise abatement is appropriate.

While the report does not propose any firm policy options, it is worrisome that the effect of aviation noise on communities is should be downplayed because only a few vocal individuals are filing noise complaints. There is enough evidence that the health, as well as the economic, effects of aviation noise have a wide ranging effect on communities. Finally, the report ignores the FAA’s obligations under the law. When the FAA was reauthorized in 2003 and the FAA began its roll-out of NextGen, the Congress directed the FAA to “take into consideration, to the greatest extent practicable, design of airport approach and departure flight paths to reduce exposure of noise and emissions pollution on affected residents.”  49 U.S.C. § 40101 note, Vision 100 – Century of Aviation Reauthorization Act of 2003, Pub.L. No. 108-176, § 709(c)(7). The report is asking the FAA to ignore its statutory duties.

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New Study Says “Concentrations” of Noise Complaints Skew Aviation Noise Policy

Using what they call “high concentrations” of noise complaints from a few individuals as a jumping off point, Eli Dourado and Raymond Russell of George Mason University’s Mercatus Institute conclude that “[i]t would be a mistake to allow the preferences of a vocal but minuscule minority of citizens, however sympathetic their circumstances, to impede much-needed improvements in aviation.” (Report is available here: http://bit.ly/2eNayTd) The thrust of the report seems to be that the valid concerns of communities around airports about aviation noise can safely be ignored because there are only a few activist individuals.

The report diminishes the impact of aviation noise on communities by showing that in several cases a few individuals or households accounted for a high percentage of noise complaints. The implicit conclusion is that if people really were affected by aviation noise there would be more unique complainers. The report authors continue “[t]here are worrisome signs that this small, frustrated minority of citizens is affecting aviation policy.” They claim that noise abatement has an effect on fuel efficiency, which increases carbon emissions and raises ticket prices. However, what the report does not address is whether the concerns expressed by the citizens are valid and whether the citizens who do file noise complaints are a representative sample of the community instead of the sum total of those citizens who are affected by aviation noise.

While the report does not propose any firm policy options, it is worrisome that the effect of aviation noise on communities is should be downplayed because there are a few vocal individuals. There is enough evidence that the health, as well as the economic, effects of aviation noise have a wide ranging effect on communities.

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Court Overturns Aircraft Noise Small Claims Lawsuit Against San Mateo County

After enduring aircraft flying over his home at all hours, Adam Ullman, a resident of unincorporated Menlo Park, California, filed a Smalls Claims action against the County of San Mateo, the owner of the nearby San Carlos Airport for creating a public nuisance by allowing Surf Air to use the airport. Although initially successful, last Friday, August 26, 2016, the County’s appeal of the smalls claims judgment was thrown out. As Barbara Wood reported in The Almanac, San Mateo County Superior Court Judge John L. Grandsaert, in overturning the Small Claims court decision stated that “it strikes me that what you’re seeking” is “an end to this noise. . . You want that stopped. That’s what’s called injunctive relief. . . I’m with you in terms of your concerns and your presentation. I’m really not with you so far as why this case should be in small claims court.” http://bit.ly/2bVA6dK

The problem with that finding? It would be impossible for Mr. Ullman to get an injunction to stop the noise created by the Surf Air aircraft. There is a long history of airports owners and communities surrounding airports being unable to regulate noisy aircraft. First, airport owners are bound by their grant assurances – that is, the agreement they sign with the FAA in order to get federal money – to keep the airport open for all “aeronautical users.” This includes noisy aircraft.  http://bit.ly/2bJvuq6 Moreover, federal law prevents airport owners and operators from prohibiting certain types of aircraft from a particular airport. Curfews on aircraft traffic at airports are also prohibited by federal law See 49 USC 47524. So even if the County of San Mateo wanted to stop Surf Air from using San Carlos Airport, it could not without inviting the FAA to begin a legal action against it.

Second, the communities surrounding the airport cannot stop noisy aircraft either. Several communities have tried to enact ordinances that would restrict noisy aircraft from flying over their neighborhoods. Federal law, however, says that they cannot do that. Courts have consistently said that aircraft in flight are the sole responsibility of the FAA and if the FAA says they can be there, then there is little that a state or local government can do to stop it.  See, for example, the seminal case in this regard, City of Burbank v. Lockheed Terminal, 411 U.S. 624 (1973). So even if the County of San Mateo (or Atherton or Menlo Park) wanted to enact ordinances limiting the aircraft noise above their residents, that, too, would invite a legal action from the FAA.

In the end, the Judge is right: the issue is that Mr. Ullman – and millions of other Americans – want the noise stopped. But the reality is that filing for an injunction will not work because federal will not permit it

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Aviation Noise Is an Issue that Needs a Reasonable Solution

In the process of searching the internet for information about aviation noise, I often run across web pages like this one:http://www.beechtalk.com/forums/viewtopic.php?f=7&t=127555 where pilots lament how people move next to airports and then complain about the noise. They also frequently state how much they love hearing aircraft noise. To me, there is a disconnect in their thinking. While I am sure there are people who do, in fact, move to the noise, in many instances that is not the case.

For example, the person who buys a home near an airport – a sleepy little General Aviation airport – who does not mind the single-engine Cessnas on the weekends, only to find there is little the homeowner can do to stop the expansion of the airport to accommodate screeching business jets at all hours of the day.

Or the homeowner who buys a house in a rural area known for its peace and quiet, miles away from the nearest airport only to find that the FAA has changed the flight path so that a constant stream of large jets are flying under 5000 feet over the house.

Or the homeowner who has lived in a neighborhood near an airport for years. But then, the airport owner and the FAA decide to reconfigure the runways at the large commercial airport to accommodate more traffic and the homeowner finds herself underneath the approach pattern for the airport.

Or the homeowner who lives in an urban area, but finds that the FAA has changed the flight paths so that airplanes now fly lower and closer than before.

Or the homeowner who recognizes that she lives near a large commercial airport and expects aircraft noise, but when the airport owner and the FAA agree to offer noise mitigation to lessen the impact on the homeowner, it takes over 15 years for the airport to complete the project. And during that time, the aircraft fly above her head.

Make no mistake, aviation noise and air pollution carry health effects – both mental and physical – what is needed less blaming the victim by pilots and the FAA and an increased emphasis on reasonable policy. Freeways are not built without compensating the nearby owners for their troubles. Neither should airports and flight paths – the “highways in the sky.” Reasonable noise standards that should be followed by the airports, aircraft, airlines and the FAA should be instituted. And they must be enforced.

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Santa Monica City Council Votes, Once Again, To Close Santa Monica Municipal Airport (SMO)

On August 23, 2016, the Santa Monica California City Council unanimously approved a resolution to reduce flights and close the Santa Monica Municipal Airport (SMO) by July 1, 2018. This is not the first time the City Council has taken this action, and, like previous efforts, this resolution faces substantial legal headwinds. http://lat.ms/2bCIqN4 and http://bit.ly/2biWBX4

Instead of simply calling for the shut-down of the airport, the resolution contained a package of measures designed to minimize environmental impacts and scale back flight operations, especially those of private and corporate jets, until the airport can be shut down.

These measure are aimed at curtailing aircraft traffic at the airport. They include petitioning the FAA to shorten the airport’s runway from 5,000 feet to 2,000 feet, eliminating the sale of leaded fuel, adding security, creating a permit system instead of leases for aviation tenants and increasing enforcement of local, state and federal laws related to airport operations.

In addition, the City Council approved the creation of a city-run operation to replace two private companies that provide aeronautical services such as fuel, maintenance and aircraft storage. The City believes that by doing so, it will be able to better control operations at the airport and reduce the environmental impact on the surrounding neighborhoods.

Closing the airport is still working its way through the courts and the FAA. The FAA recently ruled that the airport must stay open until 2023 in order to comply with its grant assurances. http://bit.ly/2b1vSjt The City has until October 14, 2016, to file a Petition for Review challenging that decision in the U.S. Court of Appeals.

In addition, airport users have filed another administrative proceeding with the FAA accusing the city of violating its grant assurances by imposing unreasonable landing fees, illegally diverting airport funds to non-aviation uses and setting unfair leasing policies to force out aeronautical tenants. FAA Docket No. 16-16-02.

Finally, the City filed a lawsuit in federal court to settle the issue about what its duties and responsibilities are under the federal agreement. After being dismissed by the U.S. District Court, the lawsuit was re-instated by the Court of Appeals. That lawsuit is set for trial in late 2017 in U.S. District Court in Los Angeles.   U.S. District Court for the Central District of California, Case No. 13-8046. Although the case is set for trial, the parties have agreed to mediation and have hired a private mediator. That proceeding will be completed no later than: March 7, 2017, with a joint report regarding the results due on March 14, 2017.

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