Local Management of Small UAS Traffic: A Path to Efficient Drone Operations – By Ernest C. Brown

The Federal Aviation Administration (FAA) recently issued regulations authorizing small-unmanned aircraft systems (UAS), or drone,1 operations for limited commercial purposes.2 The purpose of these regulations is to advance a legal framework for safe and practical use of drones. The regulations permit drone operations up to 400 feet above ground level (AGL), including flights over houses, buildings, and cars. They do not allow urban delivery of packages or drone services that are beyond the drone pilot’s line of sight.

In issuing these regulations, the FAA asserts “well-established legal principles as to the Federal responsibility for regulating the operation or flight of aircraft,” including drones.3 The FAA views drone usage as a major aviation safety issue. It suggests that state and local authorities consult with the FAA before adopting legal restrictions on the operation of drones.4

The FAA is currently registering over 2,000 drones per day.5 There are now over 10,000 pending requests for commercial UAS pilot certifications. Over two million registered and unregistered drones, ranging up to 55 pounds (the legal limit) in takeoff weight, have been sold in the United States.

This surge in usage is having an impact on local communities. The FAA, however, has discouraged state and local regulation of drones, such as hours of operation, aerial speed limits, or the establishment of “prohibited zones” around sports stadiums or cultural attractions. The FAA, many national Internet retailers, and delivery companies have stated that local regulation would create a “patchwork quilt” of local rules throughout the United States.6 Local communities respond that the FAA’s speed limit of 100 mph is too fast for urban flights.

The FAA has statutory authority to regulate use of the national airspace system (NAS).7 It has a congressional mandate to create a safe flight environment for commercial drones. State and local leaders recognize that aerial deliveries can provide great benefits, especially in large cities with serious gridlock. However, they are deeply concerned over such local issues as noise, safety, privacy, and land use. They are also the principal users of this 400-foot AGL airspace, primarily for helicopters used by law enforcement, fire suppression, and emergency response, as well as flights by local news and traffic reporters.

A federal-state partnership, modeled after the operation of local airports, would resolve these jurisdictional problems. The FAA should consider creating a new “Class H” category of airspace within cities. This regulated airspace would be bounded by a 400-foot AGL ceiling within city limits. This class of airspace would allow the FAA to maintain its aviation jurisdiction, while delegating responsibility for managing day-to-day UAS activities to major cities.

Setting the boundaries of Class H airspace is relatively easy in cities distant from any major airport. Where the city limits include an airport, or are quite near one, the envelope of Class H airspace would be reduced to avoid impinging on airport airspace (Classes B, C, or D). One way to set these boundaries would be to limit Class H airspace from extending into the lower limits of those airspace classes (generally surface to 1,200 feet). However, that would be fairly restrictive in the prime urban delivery areas (three to five miles radially from commercial airports).8

The creation of Class H airspace would allow the FAA to leverage its expertise by maintaining jurisdiction over UAS aircraft and flight rules while recognizing the role of local aviation, land use, public works, police, and fire agencies. These jurisdictions already operate the nation’s airports, marine ports, and harbors and respond to local aviation, legal, and medical emergencies.

This article examines the FAA’s current approach to UAS policy and rulemaking by identifying four problems with continued FAA administration of small UAS flights below 400 feet AGL in urban airspace: (1) the FAA’s future challenge of safely integrating larger, beyond visual line of sight (BVLOS) UAS with a growing commercial air traffic population in the NAS;(2) the explosive growth of small UAS sales and their increasing use in local airspace; (3) the sensitivity of GPS reception and impracticality of radar for small UAS navigation in urban environments; and (4) the FAA’s rigid and time-consuming rulemaking process, which has excessively delayed the implementation of commercial drone usage, especially time-critical package delivery, in the United States.

Next, this article addresses these serious problems by advocating for a partnership between local communities and the FAA to develop regulatory and technological schemes to create urban UAS corridors. The FAA should delegate UAS management to local airport commissions, which will be responsible for the administration of Class H airspace. Local UAS airspace management is best suited to support the rapid adoption of UAS technology and enforce the FAA’s stringent safety mandates, while also respecting the rights, privacy, and concerns of urban communities.

The FAA’s First Problem: Managing Air Traffic

The FAA has not been adequately funded to keep pace with the yearly growth of conventional air traffic.9 The NAS uses a radar-dependent system developed in the 1960s.10 On an average day, air traffic controllers handle over 87,000 conventional flights, which include commercial flights, general aviation flights, air taxi flights, military flights, and air cargo flights.11 At any given time, approximately 5,000 aircraft are in the skies above the United States.12 While the FAA has an array of sophisticated avionics technology and more than 46,000 employees (as of 2013), those resources are focused on the safety and efficiency of the country’s major commercial air traffic, including wide-body jets carrying passengers and cargo.13

The FAA lacks the staff,14 technology, and budget to track the projected volume of tens of millions of daily, small UAS flights. It lacks the resources necessary to keep drone traffic safe in the streets of America’s cities, and the ability to provide any meaningful response to rogue drones. It is not prepared to manage ground-level traffic in the 19,500 incorporated cities in the United States. Those communities are presently defenseless against rogue drones. Urban and rural communities currently have no ability to detect, identify, or monitor UAS flying below the FAA’s radar.

The FAA is not prepared to manage the anticipated explosion of local UAS traffic. The massive surge in civilian UAS purchases and usage was neither anticipated nor adequately provided for in the FAA’s current budget. Furthermore, the number of fully certified FAA air traffic controllers is at a 27-year low.15

The FAA’s Second Problem: The Growth of UAS Sales and Activity

The FAA focuses its financial resources on regulating the safety of passenger airlines, freight aircraft, and general aviation. These core operations include: safe takeoff, approach, and landing of such aircraft at international, regional, municipal, and private air- ports. Until recently, UAS development had not been a significant item in the FAA’s long-term planning or development cycle. This is especially troubling given that more than twice as many UAS are now registered with the FAA than traditional airplanes.16 Given that U.S. drone sales were expected to be over 2.4 million aircraft in 2016,17 the FAA has neither the staff nor the resources to detect, monitor, control, and manage the pace of the change in this technology.

It is difficult to envision the FAA being able to introduce an entirely new navigation system for national control of small UAS operations within the next decade. Additionally, the FAA has no regulatory program to address the myriad local issues that arise from the use and abuse of drones. In fact, the FAA does not plan to introduce a new navigation system for large UAS, which makes the delegation of small UAS to local control, with FAA oversight, prudent. Local and federal authorities urgently need a practical solution to this technological and regulatory gap. There are thousands of UAS flights taking place in urban centers on a daily basis, and the number of flights will grow exponentially in the years ahead.

The FAA’s Third Problem: Inadequacy of Radar and GPS-Guided Urban UAS Navigation

The delivery and traffic management needs of UAS in urban environments are not well met by GPS and traditional radar because there is no current technology that allows the FAA to effectively monitor low-level flights in these communities.18 Air traffic control (ATC) has traditionally used radar for monitoring air traffic. However, ATC does not provide radar coverage for UAS operating within 400 feet AGL in urban areas. In essence, the rapidly expanding private fleet of UAS is quite literally “flying under the radar.”

In response, the FAA has committed to modernize its radar-based navigation systems for aircraft navigation; however, the transition to a GPS-guided system has been extremely slow. Further, GPS and other satellite systems do not work well in urban settings.19 Although UAS often have onboard navigation systems, these systems are not accurate beyond five to 15 meters. Due to these constraints, radar, GPS, and onboard navigation systems are ineffective in urban settings. It is increasingly clear that urban UAS traffic management will rely upon ground-based systems.

The FAA’s Fourth Problem: An Inflexible and Slow Rulemaking Process

The FAA has not yet introduced a regulatory scheme or effective technology for (1) UAS detection, (2) UAS air traffic management, and (3) citation of unsafe drone operations in urban and rural areas. The FAA’s initial response to UAS use was to prohibit all commercial use of drones, except in specifically approve circumstances.20 Since then, the FAA, facing a congressional mandate to expedite the integration of drones into the NAS,21 has softened its stance on commercial drone use by implementing regulations governing the commercial use of small UAS.22 However, substantial concerns remain. During the 2015 holiday season alone, over one million UAS were sold, largely to untrained individuals.23 These sales are increasing daily.

A major concern of UAS manufacturers, operators, and regulators is a lack of certainty as to the future of regulations and rules for flight operations. The FAA’s small UAS regulations have provided guidance to UAS operators, while also lifting the previous ban on commercial UAS activity. The FAA has implemented additional regulatory plans, and is expected to publish new proposed rules regarding UAS flight over people in early 2017.24 The FAA is also reviewing recommendations for rules pertaining to micro UAS.25

Finally, the FAA has issued guidance to state and local government authorities regarding UAS use. However, this guidance is focused on law enforcement agencies and privacy issues,26 powers generally already reserved to the states.27 Despite these efforts, the FAA’s rules do not take into account the particular concerns of varying municipalities.

The current FAA regulatory framework envisions a static, one-size-fits-all solution for the entire country. This structure cannot keep pace with the rapid innovation of flight, navigation, and communications systems because the FAA is hampered by cumbersome federal rulemaking processes that may take one to five years, even for relatively modest adjustments or improvements.

More importantly, the current regulatory environment does not take into account the specific concerns, civic priorities, varying geographical circumstances, or special situations of local citizens. It does not allow for adjustment due to local concerns or community values with regard to noise, privacy, safety, and delivery efficiency. Local communities have widely varying values and civic issues. As such, they will vary widely in their willingness to be early adopters and in their overall approach to these opportunities.

Local Governments Should Manage Urban UAS Traffic

While preserving its federal mandate to ensure civil aviation is safe for people on the ground and in flight, the FAA should delegate to cities and local communities the management of near-ground, small UAS operations. The proposed delegated airspace would provide municipal control of drone flight operations within a city’s jurisdictional boundaries. Specifically, local airport commissions would administer these operations and their Class H airspace. The delegation of UAS management to communities would offer a more efficient way to integrate UAS into the NAS.

In order for the FAA and local cities and counties to assess the risks and benefits of localizing UAS operations: (1) municipalities should partner with the FAA to obtain approval for management of Class H airspace, and (2) cities should incorporate the technology needed to create navigable corridors for UAS traffic.28 The best way to achieve these goals is to implement a locally operated, ground-based traffic management system.29

Municipalities are best equipped to address local zoning, noise, privacy, and congestion concerns and can manage UAS airspace much like they already manage their local airports and street-level traffic systems. Local communities already manage enormous amounts of ground, air, and water traffic within their legal boundaries. A growing number of municipalities have their own UAS operations.30 These activities occur on the ground or at relatively low altitudes. In fact, under existing FAA rules, all drone pilots must direct flights from the ground.

The impacts of drones are almost entirely local in nature. Their use and misuse will intersect and affect vehicle traffic. Their low-level takeoff and landings from residences, “drone hubs,” or commercial enterprises pose urban land use and traffic congestion challenges.

Local airport commissions already conform their airport operations to established national standards and regulations. This allows them to manage complex airport operations in accordance with established FAA safety and performance standards. The local management of small UAS traffic would all be done with FAA aviation oversight. This is similar to the FAA’s active supervision of local airports, general aviation, air freight, and fixed-base operators. Again, local agencies carry out these day-to-day operations, including law enforcement, airport security, airside and off-site firefighting, medical emergencies, congestion management, parking enforcement, and disaster response.

Local UAS management would include oversight of a limited number of UAS users engaged in commercial and recreational activities. Commercial drone users might include surveyors, film companies, and video/photographers. As these drone activities become more prevalent, the FAA will have time to implement Class H airspace and delegate to cities and counties the regulatory authority to manage UAS operations within their borders using performance-based oversight of a local authority’s safety management system and regulatory regime.

Class H airspace would allow the FAA to delegate management of UAS traffic to major cities. The FAA would exercise oversight over these programs and enforce conformance with carefully established, nation- ally consistent performance standards. A local agency would apply to the FAA for management of its local UAS community, setting forth in great detail the Class H airspace it proposes for UAS navigation. The application would present the municipality’s plan to achieve the FAA’s standards and provide information on its technical capability to manage near-ground airspace use. After successful application to the FAA, municipalities would receive Class H certification and utilize that delegated authority under the FAA’s oversight.

FAA regulations address exactly how heliports and airports may operate, and with what equipment. There is no flexibility as to how these airports and heliports meet required safety standards. Under our proposed approach, the FAA would establish the overarching safety standards—equipment and operating criteria—to which the municipality’s plan must conform. This is how cities currently regulate and operate airports and heliports under the FAA’s jurisdiction and flight rules.

The creation of Class H airspace would be a refinement of the FAA’s existing regulatory authority under 49 U.S.C. section 40103: “The United States Government has exclusive sovereignty of airspace of the United States…The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace…”

The FAA promulgated modern airspace classifications in 199331 and has since modified those classifications when necessary.32 To create Class H airspace, the FAA could promulgate a new rule designating and defining this urban, heavily regulated airspace. Once this rulemaking process is complete, municipalities could then submit comprehensive applications to the FAA for approval to administer their Class H airspace.

However, this flight environment could almost immediately be implemented without the rulemaking process. This is because the federal government, including the FAA, has the right to contract for services.33 The FAA currently contracts with private companies and other entities for a variety of services.34 Thus, the FAA may authorize local management of urban flight operations by contracting these services out to local government agencies.

For example, the Federal Contract Tower Program ensures the safety of low-activity airports, while providing services at a lower cost than the FAA could otherwise provide.35 In these instances, the contracted entities conform to strict FAA regulations that do not differ and are not permitted to stray from uniform standards and regulations. They are not given the authority to develop their own rules and regulations.

This article proposes a more flexible approach to small UAS management, allowing greater flexibility for cities to manage their own, near-ground airspace. These authors envision a regime in which the FAA delegates a municipality to manage its own Class H airspace and restrict UAS flights to pathways and times that make sense to their communities. In sum, Austin or Dallas may approach the problem differently than New York City or Chicago or Los Angeles.

Just as the FAA contracts out for tower services, the FAA may contract out urban airspace management for UAS use. Contracts between the FAA and other entities could be further expanded to allow for remote tower operations, creating what these authors call a Virtual TowerTM.36 The FAA has already contracted the management of airspace in other settings.37 This contractual arrangement would allow the FAA to concentrate on fostering its NextGen agenda to transform and modernize the larger components of the nation’s airspace.38

Once a municipality receives its FAA-approved Class H certification, it would adopt a federally approved local ordinance regulating UAS traffic management. This would eliminate the concern of a patchwork of local regulations, while meeting community concerns. Such a process of closely interfacing with the FAA on issues of flight safety would reflect the FAA’s predominant role in ensuring the safe use of airspace. For example, the FAA could prohibit flights near or over airports or restricted areas. The city would be responsible for managing UAS traffic in its designated airspace. The FAA would have oversight over the implementation and periodic renewal of the city’s Class H airspace authority.

The cost of implementing and operating these grids would vary depending on the size of the city. At the city’s direction, expert consultants could be hired to assist in UAS airspace management. To regulate their Class H airspace, local public entities would likely establish a contracting arrangement with a service provider or, alternatively, create a public utility, public-private partnership, or nonprofit concession. Municipalities could competitively select a private partner to work with the local government and local airport commission to implement practical navigation systems tailored to their communities. A local commission comprised of local airport and law enforcement agencies would supervise the operations of UAS within the municipality’s jurisdiction.

This proposed system would enable safe UAS flight by allowing cities and local UAS operators to track their UAS, avoid prohibited zones and temporarily restricted zones, and locate lost UAS on a real-time basis. This system would allow cities to immediately create specific “no fly zones” under exigent circumstances in response to fires, police activity, medical emergencies, visiting dignitaries, or major local disasters.

Ground-Based Navigation Grid for Urban Use of Drones

In order to implement the technology needed to create navigable urban corridors for UAS flight, cities could adopt a local UAS grid of electronic sensors and beacons on streetlights and other elevated structures. This would create a navigation grid throughout urban streets, avenues, and highways using a ground-based platform.

Ground-based navigation technologies are critical to an operational UAS urban grid. Ample technology exists to enable such a navigation system. This would require the installation of specialized wireless technology on city streetlights, traffic lights, and similar elevated structures throughout the navigable space. Local agencies already manage and maintain these elevated systems because they typically own the street-level infrastructure crucial to UAS operations. Therefore, local agencies are the logical stake- holders to enable early adoption of these systems.

After installation of such a ground-based navigation grid, the resulting network would create UAS corridors that would assist UAS in navigating to takeoff and landing sites while avoiding structures within their flight path. These wireless beacons could also keep UAS flights geofenced away from prohibited areas. Furthermore, these beacons could provide a cloud-based integrated solution for UAS detection, navigation, communication, and security. The integration of wireless beacons with LED street and traffic lights provides three further benefits: (1) supplying a convenient power source for the beacon router, (2) allowing a city to instantly adjust every street light, and (3) achieving up to an additional 40 percent in energy efficiency and cost savings.

Cities could then activate the grid of wireless beacons and interactive communication tools to support the next generation of UAS navigation software. This would remain optional as UAS manufacturers evolve their navigational systems and national standards. The navigable grid would enable precise guidance from takeoff to destination, while minimizing the risk of collisions, theft, or fly-away incidents. It would also allow instantaneous communication of the location of downed UAS flights, allowing operators and local authorities to manage the situation.

The creation of a secure environment for operation and management of drones would provide consider- able flexibility. Users could be granted different flight and landing zones or categories of drone commands. The city could change geofencing of sensitive areas immediately as situations change. Overall, this would proceed with high levels of security enabled at the device and operational level.

This local communication data would then be distributed to municipal aviation authorities and local law enforcement agencies in cities, towns, and counties. The FAA could access this data any time it sees a need to engage in oversight of local UAS operations or respond to an aviation incident. Urban aerial corridors provide an innovative, cost-effective, and practical solution to UAS traffic management.

Ground-based technology that assists UAS in the urban grid would have other additional benefits. For example, this technology would promote other sophisticated “Smart City”39 objectives, such as efficient street lighting, management of urban sensors on the streetlights, and achieving efficiencies in related aspects of urban infrastructure.

Conclusion

Local agencies work closely with a variety of federal agencies to implement their regulations and procedures to comply with congressional mandates. The application of federal UAS policies and regulations in local communities would be consistent with current federal-community relationships. Although a variety of agency and industry voices have expressed concern about local governments creating a “patchwork” of local regulations and ordinances, this would not be the case if each municipality is required to adhere to safety and performance criteria set forth by the FAA. These concerns can be further alleviated through federal, state, and local governments; the UAS industry; and users engaging in a dialogue that results in a consensus approach to a uniform state statute and local ordinances.40

Historically, local agencies have managed all ground-level traffic associated with flight operations. They detect, identify, and manage several hundred million ground-level and elevated roadway trips every day in the United States. Expanding this authority from ground level to 400 feet AGL in urban centers is a far more logical approach than having that near- ground-level activity monitored by ATC, which lacks the technology and manpower to monitor such traffic. Although the FAA has principal jurisdiction over commercial air traffic, it is far more practical for urban UAS traffic to be managed by local government agencies. This solution is feasible, preferable, and would alleviate the public’s concerns about this promising technology.

Update: June 6, 2017

Our original article, published in the winter of 2016, advocated for municipal control of certain drone activities. Six months later, the federal government is following our recommendations (in part) for local control of drone use. Senator Dianne Feinstein of California and three other senators have come together in recommending localized control of UAS use.

Introduced May 25, 2017 and known as the “Drone Federalism Act of 2017,”41 this bill proposes sweeping changes to previously held assumptions about federal preemption over aviation activity.

The goal of the bill for UAS use is to “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including—
(A) protecting public safety;
(B) protecting personal privacy;
(C) protecting property rights;
(D) managing land use; and
(E) restricting nuisances and noise pollution.”

The bill also places restrictions on UAS flying 200 feet above ground level or within 200 feet of a structure. Additional proposed restrictions include limitations on speed, within vicinity of certain types of structures, prohibition on operators using alcohol or drugs, and other restrictions.

Private property rights are also mentioned, prohibiting government entities from “authoriz[ing] the operation of a civil unmanned aircraft in the immediate reaches of the airspace above property without permission of the property owner.”

The bill also establishes a pilot program, which includes systems for traffic management.

This bill comes at a crucial time. On May 19, 2017, a federal appeals court ruled in Taylor v. Huerta & FAA.42 The Court found the FAA does not have jurisdiction to mandate a registration requirement for hobby and recreational drones. That decision may backfire on UAS users. The Taylor decision states: “In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating ‘any rule or regulation regarding a model aircraft.’ The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.”

Now that the FAA is prohibited from asserting jurisdiction over recreational and hobby drones, there is apparently no basis for federal jurisdiction or federal preemption of state and local laws. Courts look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law is preempted by Federal Law. In this case, the FAA was denied any jurisdiction over these local, low flying aircraft. As such, it would appear the states and localities are free to regulate or limit the use of UAS hobby and recreational drones.

The Court’s ruling has received a lukewarm reception. Even DJI, a market leader in the manufacture of drones, disagrees with the ruling,43 stating the registration requirement was “very reasonable” and “provides for accountability and education to drone pilots.” It remains to be seen if the FAA will appeal this decision to the Supreme Court.

Importantly, Feinstein’s bill, discussed above, affects both hobbyists and businesses. The FAA was established to provide a safe and efficient aerospace system in the U.S. Before this bill and the Taylor decision, it was presumed that federal oversight of all aerospace activity would apply to UAS use. Given these recent changes, it remains to be seen if the FAA will continue to maintain oversight of the thousands of UAS daily flights.

As these authors predicted and suggested, advocates in Washington now recommend local control of UAS activity.

Endnotes

1. Aviation literature uses the terms “drone,” “unmanned aircraft systems,” and “unmanned aerial vehicle” interchangeably.
2. Operation and Certification of Small Unmanned Air- craft Systems; Final Rule, 81 Fed. Reg. 42,064 (June 28, 2016) [hereinafter Small UAS Final Rule]; Press Release, FAA, DOT and FAA Finalize Rules for Small Unmanned Aircraft Systems (June 21, 2016), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=20515.
3. Small UAS Final Rule, supra note 2, at 42,194; see also State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, FAA (Dec. 17, 2015), http://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf [hereinafter UAS Fact Sheet].
4. Small UAS Final Rule, supra note 2, at 42,194.
5. Joan Lowy, Official Envisions a Day When Mil- lions of Drones Fill Skies, Associated Press: The Big story (Sept. 17, 2016), http://bigstory.ap.org/article/c27b7c401f2240489794c38fa1ae97ae/official-envisions-day-when-millions-drones-fill-skies.
6. UAS Fact Sheet, supra note 3, at 2.
7. 49 U.S.C. § 40103.
8. One way to keep Class H airspace from conflicting with Classes B, C, and D would be to ensure it stays below the imaginary surfaces defined in 14 C.F.R. part 77.
9. Press Release No. BTS 18-16, Bureau of Transp. Statistics, 2015 U.S.-Based Airline Traffic Data (Mar. 24, 2016), http://www.rita.dot.gov/bts/press_releases/bts018_16; Press Release No. 4, Int’l Air Transp. Ass’n (IATA), Demand for Air Travel in 2015 Surges to Strongest Result in Five Years (Feb. 4, 2016), http://www.iata.org/pressroom/pr/Pages/2016-02-04-01.aspx.
10. The FAA is scheduled to switch to automatic dependent surveillance-broadcast (ADS-B) surveillance by 2020.
11. Air Traffic, Nat’l Oceanic & Atmospheric Admin., http://sos.noaa.gov/Datasets/dataset.php?id=44.
12. Id.
13. FAA, Fiscal Year 2013 Performance And Accountability Report (2013), available at http://www.faa.gov/about/plans_reports/media/2013_FAA_PAR.pdf.
14. Air Traffic Controller Staffing: 2011–2016, Nat’l Air Traffic Controllers Ass’n (2016), http://www.natca.org/images/NATCA_PDFs/Current_Legislative_Issues/StaffingFactSheet2016.pdf.
15. Id.
16. Lowy, supra note 5.
17. Id.
18. NASA is also working on a low-altitude UAS air traffic control system. Sharon Lozano, First Steps Toward Drone Traffic Management, NASA (Nov. 15, 2015), http://www.nasa.gov/feature/ames/first-steps-toward-drone-traffic-management.
19. Adam Gorski, Understanding GPS Performance in Urban Environments, AGI ( Jan. 4, 2011), http://blogs.agi.com/agi/2011/01/04/understanding-gps-performance-in-urban-environments.
20. Unmanned Aircraft Operations in the National Air- space System, 72 Fed. Reg. 6689 (Feb. 13, 2007).
21. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 Stat. 11, 73–75 (2012).
22. See Small UAS Final Rule, supra note 2, at 42,064.
23. Michal Addady, The Number of Drones Expected to Sell during the Holidays Is Scaring the Government, Fortune (Sept. 29, 2015), http://fortune.com/2015/09/29/drones-holiday-sales.
24. Fact Sheet: New Commitments to Accelerate the Safe Integration of Unmanned Aircraft Systems, White house (Aug. 2, 2016), https://www.whitehouse.gov/the-press-office/2016/08/02/fact-sheet-new-commitments- accelerate-safe-integration-unmanned-aircraft.
25. FAA Reviewing Micro UAS Report, FAA, https://www.faa.gov/news/updates/?newsId=85327 (last modified July 11, 2016).
26. The FAA has recognized that local agencies are in the best position to “deter, detect, immediately investigate, and, as appropriate, pursue enforcement actions to stop unauthorized or unsafe UAS operations.” Law Enforcement Guidance for Suspected Unauthorized UAS Operations, FAA (Aug. 11, 2016), http://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf (footnotes omitted).
27. UAS Fact Sheet, supra note 3.
28. One approach is Class H airspace consisting of urban corridors and delivery branches called Approved Appurtenant AirspaceTM, a Navio patented technology that registers UAS in airspace and approves specific locations where an unmanned aircraft can land in either an urban or rural setting.
29. What is needed is something almost all civil aviation authorities (CAAs) (including the FAA) are migrating toward: performance-based oversight (PBO) of performance-based regulations (PBRs). See Mario Pierobon, Performance-
Based Oversight, AeroSafety World (Nov. 2015), http://flightsafety.org/aerosafety-world-magazine/november-2014/ performance-based-oversight.

30. E.g., Lisa Fernandez, Use of Drones Growing in Firefighting Efforts, Use Still Controversial, NBC Bay Area (May 25, 2016), http://www.nbcbayarea.com/news/local/Use-of-Drones-Growing-in-Firefighting-Efforts-Use-Controversial380842741.html.
31. 14 C.F.R. pt. 71 (1993).
32. E.g., Amendment of Class D and Class E Airspace; Salem, OR, 81 Fed. Reg. 12,002 (Mar. 8, 2016).
33. United States v. Tingey, 30 U.S. (5 Pet.) 115 (1831).
34. Active Contracts, FAA, https://faaco.faa.gov/index.cfm/ announcement/activeContracts (last visited Jan. 24, 2017).
35. Memorandum from Jeffrey B. Guzzetti, Assistant Inspector Gen. for Aviation & Special Program Audits, to Acting Fed. Aviation Adm’r (Nov. 5, 2012), available at https://www.oig.dot.gov/sites/default/files/FAA%20Federal%20Contract%20Tower%20Program%20Report^11-5-12.pdf; see also FAA Contract Tower Operation and Administration, FAA Order No. JO 7210.54C (May 16, 2016), available at http://www.faa.gov/documentLibrary/media/Order/JO_7210_54C.pdf; Robinson Aviation, Inc., http://www.rvainc.net (last visited Jan. 24, 2017); FAA. Contract Tower Ass’n, http://www.aaae.org/aaae/USCTA/Default.aspx (last visited Jan. 24, 2017).
36. These initiatives are already being developed for conventional air traffic. E.g., Remote Air Traffic Control Tower, Leesburg, http://www.leesburgva.gov/government/departments/airport/remote-air-traffic-control-tower (last visited Jan. 24, 2017); Pat Ferrier, “Virtual Tower” Could Bring More Flights to Airport, Coloradorian (Oct. 2, 2015), http://www.coloradoan.com/story/news/2015/10/01/ virtual-tower-northern-colorado-airport/73173244/.
37. E.g., Gwendolyn Mazzotta & Daniel P. Murray, Improving the Integration of Launch and Reentry Operations into the National Airspace System, FAA, https://www.faa.gov/about/office_org/headquarters_offices/ast/reports_studies/library/media/NAS_Integration_Mazzotta.pdf (last visited Jan. 24, 2017) (discussing an airspace entry and reentry pro- gram designed by two Florida corporations under contract with the FAA).
38. Partnering for NextGen, FAA, http://www.faa.gov/nextgen/partnering/ (last modified Oct. 18, 2016).
39. The Smart Cities Council advocates three core values: livability, workability, and sustainability. Jon DeKeles, Our Vision, Smart cities Council (Apr. 10, 2012), http://smartcitiescouncil.com/article/our-vision.
40. One example is DJI’s software that prohibits its Phantom 4 drones from crossing into airport Class B, C, or D airspace. DJI Introduces New Geofencing System for Its Drones, DJI (Nov. 18, 2015), https://www.dji.com/ newsroom/news/dji-fly-safe-system.]
41. S. Res. 1272, 151st Cong. (2017), available at https://www.feinstein.senate.gov/public/_cache/files/d/b/dbf0d059-09d2-43ae-9e17-3ca960592798/88CC2E3D7D090130DE655B22BEA674C7.ros17470.pdf
42. Huerta v. Taylor, No. 15-1495 (D.C. Cir. 2017), available at  https://www.cadc.uscourts.gov/internet/opinions.nsf/FA6F27FFAA83E20585258125004FBC13/%24file/15-1495-1675918.pdf
43. Brian Heater, A federal appeals court shoots down the FAA’s drone registry requirement, TechCrunch (May 19, 2017), https://techcrunch.com/2017/05/19/a-federal-appeals-court-shoots-down-the-faas-drone-registry-requirement

*This article was originally published in The Air & Space Lawyer, Volume 29, Number 4, 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Minor aspects of the original article have been edited to reflect authorship and structural updates.

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