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

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.

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.

FAA Rejects Santa Monica’s Appeal of Grant Violations

Closing the administrative process, the Federal Aviation Administration on Monday denied the City of Santa Monica’s appeal of the FAA’s December 2015 inital decision. Monday’s decision has the effect of requiring the city’s airport to remain open at least until 2023. http://bit.ly/2b1vSjt  This result should have come as no surprise, the FAA rarely overturns its initial ruling in administrative actions.

The City argued that a federal airport improvement grant of $240,600 accepted by Santa Monica in August 2003 was not a new grant, but an amendment to a previous. Therefore, the grant agreement between the FAA and the City had already expired. In December, 2015, the FAA ruled in its “Director’s Determination” that the 2003 grant was a new grant. As such, the airport to stay open until at least August, 2023, when the terms of the grant agreement would expire. The City tried to convince the FAA that it should not be able to write the grant agreements and then be given deference when it comes time to interpret the agreements. This is particularly true in this case, the City stated, where the City’s interpretation of the grant agreement was reasonable one and the FAA was aware of its interpretation. The FAA found that it could, indeed, interpret the grant agreements anyway it chose, since it was issuing the grants. The FAA concluded that normal rules of contract interpretation do not apply in this instance.

The City will now have 60 days to decide whether to take this issue to the U.S. Court of Appeals. The City’s Petition for Review could be filed either in the U.S. Court of Appeals for the Ninth Circuit, located in San Francisco, or the U.S. Court of Appeals for the D.C. Circuit in Washington, D.C.

Congress Rolls Out FAA Short Term Extension Bill

On Wednesday, July 6, 2016, Sen. John #Thune (R-SD) announced that the House and Senate negotiators had finally reached a deal for a short-term extension of the Federal Aviation Administration’s (#FAA) reauthorization. Although the bill itself has not yet been released to the public, the Senate Commerce Committee did post a summary of its provisions. You will recall that the House passed a bill that included an overhaul of the Air Traffic System. That proposal did not go over well in the Senate, who passed their own bill without the revamping of Air Traffic. With the July 15, 2016, deadline looming the two chambers finally came together on a much smaller package of legislation along with a very short-reauthorization period – only until September, 2017.

Here are the highlights:

Drones:

Although the FAA has issued its long-awaited commercial drone regulations, Congress wants to make sure that drones are operated safely and do not interfere with other aviation activities.

• Streamlines processes for approval and interagency cooperation to deploy unmanned aircraft during emergencies, such as disaster responses and wildfires.
• Prohibits unmanned aircraft users from interfering with emergency response activities, including wildfire suppression, and raises civil penalties to not more than $20,000 for those found in violation.
• Creates new processes to detect, identify, and mitigate unauthorized operation of unmanned aircraft around airports and critical infrastructure

In summary, the bill will focus primarily on wildfires – how to use drones and how to keep them out; and on keeping rogue drones away from airports.

Aviation Security:

Because of the recent terrorist activities, aviation security was a driving force in getting this bill done. The bill seems to track the Senate bill.

• Strengthens security for foreign airports by requiring comprehensive security assessments for all overseas airports serving the United States and considers the level of information sharing and security capabilities of foreign airports.
• Authorizes capacity development, training, screening equipment donation, and cargo program certification for overseas airports to bolster the security standards for flights headed to the United States from high risk airports.
• Expands the TSA PreCheck program by directing TSA to partner with the private sector to develop enhanced enrollment and vetting methods. By developing and marketing this program, TSA can strengthen security by identifying trusted travelers, while also increasing operational efficiency of checkpoints by providing expedited screening to more passengers.
• Optimizes checkpoints by redeploying certain TSA personnel and assessing TSA’s staffing allocation model, in order to reduce passenger wait times while enhancing security effectiveness.
• Tightens the access controls and employee vetting standards for aviation workers with access to secure and sterile areas of airports, in order to mitigate the insider threat to aviation security.
• Authorizes “Checkpoint of the Future” innovation efforts underway at TSA, authorizes additional TSA Visible Intermodal Prevention and Response teams, and ensures these teams are trained to assist transportation hubs in preparing for and responding to active shooter scenarios.

Consumer Protection:

• Requires air carriers to provide a refund of paid baggage fees when items are lost or unreasonably delayed.
• Requires airlines to generally ensure that children 13 years of age or under are seated adjacent to an adult or older child traveling with them.
• Takes steps to improve air travel for persons with disabilities by requiring a review of training and best practices by airports and airlines, and by requiring DOT to issue a rule to address several issues of concern to the disabled community.
• Extends authority for the DOT’s Advisory Committee for Aviation Consumer Protection.

Pilot/Aviation Safety/Air Traffic Control:

• Strengthens mental health screening for pilots, addressing a factor in the 2015 Germanwings Flight 9525 crash.
• Expedites the completion of the pilot records database required in the Airline Safety and FAA Extension Act of 2010 in response to the 2009 Colgan Air Flight 3407 accident
• Ensures that pilots are sufficiently trained on manual flying skills and how to monitor cockpit automation systems, addressing a factor in the 2013 Asiana Flight 214 accident in San Francisco.
• Reforms and streamlines the third-class medical certification process
• Requires training for flight attendants in recognizing and responding to potential victims of human trafficking.
• Requires the FAA to provide quarterly updates to Congress regarding the number of incidents involving laser pointers being aimed at aircraft, and the number of civil or criminal enforcement actions taken by federal authorities with regard to these incidents.
• Streamlines and improves the air traffic controller hiring process and ensures the FAA can better address chronic controller shortages with experienced candidates.
• Directs the FAA to establish a comprehensive and strategic framework to identify and address cybersecurity risks to the aviation system

As soon as the entire bill is released to the public this blog post will be updated.

#FAA Finalizes Small #Drone Rules

On Tuesday, June 21, 2016, the Federal Aviation Administration announced that it had finalized the first operational rules for routine commercial use of small unmanned aircraft systems (#UAS, #drones, #UAV). The new rules will take effect in late August. These rules have been a long time coming and, according to the FAA, they have been designed to “minimize risks to other aircraft and people and property on the ground.”  These regulations apply to commercial use of drones less than 55 pounds, under 400 feet above ground level. The regulations require drone pilots to keep their drone in their line of sight at all times. It also requires that the drone operator have a newly created “remote pilot certificate” with a “small UAS rating.” The remote pilot certificate requires individuals to pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center or have an existing non-student Part 61 pilot certificate. As part of the remote pilot certificate application process, the #TSA will conduct a security background check of all remote pilot applications. Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application.

For more information about the new drone rules, visit the FAA’s website or send an email to Taber Law Group, P.C.

• Part 107 Rule
• Summary of Part 107 Rule
• FAA Fact Sheet

 

DOT Inspector General Takes Some Shots at FAA

The Department of Transportation’s Office of the Inspector General was busy this week, particularly with respect to issues relating to the #FAA.

On Wednesday, Matthew E. Hampton Assistant Inspector General for Aviation Audits, gave testimony regarding #FAA’s air traffic controller hiring, staffing, and training plans. He concentrated on three areas involving FAA’s controller workforce: (1) FAA’s progress and challenges addressing its controller staffing levels at the Agency’s most critical facilities; (2) FAA’s implementation of its new hiring process; and (3) significant workforce issues that require top FAA management attention and action.

The Assistant Inspector General testified that FAA faces challenges ensuring it has enough fully certified controllers to effectively balance controller training requirements with pending retirements, especially at its most critical facilities. This is in part because FAA does not consider facility-specific information when anticipating future retirements, and lacks sufficient data to determine how many controllers it needs. In addition, the Assistant Inspector General stated that FAA recently introduced a new process for hiring controllers but lacked an effective implementation strategy for the new policies. While it is too soon to assess the overall impact of the new hiring policies, the Agency continues to fall short of its hiring goals due to the lengthy process it takes to hire and train a controller. Finally, the Assistant Inspector General noted that there are several issues that will materially affect the controller workforce going forward that require senior FAA management attention. These include effectively implementing a new scheduling tool, integrating Unmanned Aircraft Systems into our airspace, and transitioning to new Next Generation Air Transportation System technologies.

Also on Wednesday, the Inspector General announced that it was initiating an audit of “grandfathered” airports’ use of revenue for non-airport related purposes. Under preexisting financial arrangements, these grandfathered airports may expend limited amounts of revenue for non-airport purposes, though FAA grant assurances state that revenue generated by airports must be used solely for airports. The audit objective is to assess FAA’s oversight of grandfathered airports’ compliance with Federal law related to airport revenue payments.

And finally, last Friday, June 10, 2016, the #OIG announced that on June 1, 2016, Paul Douglas Tharp was sentenced in U.S. District Court, Greensboro, NC, for serving as an airman without an airman’s certificate and filing a false tax return. He was sentenced to 21 months incarceration, 3 years supervised release, and ordered to pay $285,028 in restitution to the IRS. He pled guilty to the charges in January 2016.

Tharp admitted that he flew his aircraft four times while his pilot certificate was suspended. He also falsely represented himself as a mechanic who held a FAA Powerplant rating. He performed repairs on aircraft engine parts and falsified the maintenance record logs.

Tharp was previously convicted and sentenced in May 2015 in U.S. District Court, Charlotte, NC, for serving as an airman without a certificate and providing false statements to an FAA investigator. In that case, he was sentenced to 60 days incarceration, 3 years of probation, and ordered to pay a $5,000 fine. He was also ordered to sell his airplane and not enter an airport for 3 years, unless to fly commercially as a passenger.

D.C. Circuit Dismisses ‪Drone‬ ‪Privacy‬ Rules Challenge

The D.C. Circuit on Tuesday said it would not review Electronic Privacy Information Center’s, a privacy watchdog, petition to the ‪#‎FAA‬ asking the agency to address privacy concerns raised by drone use. The court found that both of EPIC’s requests were untimely.

‪#‎EPIC‬ objected to FAA’s dismissal of its petition for the addition of drone privacy rules in a planned rule-making regarding ‪#‎drones‬ and the fact that the FAA left out privacy rules in a preliminary notice of proposed rulemaking. The D.C. Circuit found that review of EPIC’s rulemaking petition was time-barred and review of the lack of drone privacy regulations in the proposed rules is premature.

The D.C. Circuit was unpersuaded that the FAA’s letter denying the privacy watchdog’s rulemaking petition was ambiguous enough to constitute “reasonable grounds” for not filing a Petition for Review within 60 days pursuant to 49 USC 46110(a). Likewise, the court found that it simply does “not have the authority to review proposed agency rules.” EPIC would have to wait until the drone rules are finalized in order to have the court review them for not addressing privacy issues.

http://1.usa.gov/1OhTtgv

FAA Approves First Section 333 Exemption for Nighttime Drone Operation

In a major policy shift, the Federal Aviation Administration issued the first Section 333 exemption permitting the commercial operation of UAS during night.  On April 18, 2016, the FAA issued exemption No. 16341, (http://1.usa.gov/1rHRMie) permits Industrial Skyworks, Inc. to perform commercial UAS operations during the night for building and roof inspection.

FAA had long maintained that night-time commercial operations of UAS presented safety concerns.  Although Exemption 16341 does allow for night-time operations, the FAA expressed its concern that “operations at night to pose a higher safety risk because the reduced visibility makes it more difficult for the remote pilot to visually locate the UA and, therefore, determine the relative separation with other aircraft in the NAS in order to avoid a collision.”  The FAA concluded, however, that if the drone carries equipment onboard that “identif[ies]y the precise location, attitude, speed, and heading of the small unmanned aircraft” and uses the UAS at night for close inspection of roofs and walls, the safety concerns are mitigated. Moreover, the FAA pointed out that the airspace and ground below tends to be less populated at night, may have precipitated this policy shift.

This exemption is not a blanket rule that now allows commercial use of UAS at night, but is a carefully crafted exemption based on the operational requirements and restrictions proposed by the operator and approved by the FAA. Companies seeking permission for similar nighttime commercial operations should review their operational requirements and careful consider what restrictions they would accept in order to operate a commercial drone at night. Legal advice from an lawyer experienced with dealing with the FAA would be advisable.

Industrial Skyworks, Inc. Petition: http://bit.ly/1NrG5pS

Petition Amendment: http://bit.ly/23KqnYO

FAA Request for Additional Information: http://bit.ly/1s127FM