Like everything else in out flying world, nothing is ever clearcut.
Yesterday I was at an operation that was a public demonstration that was located up against a small airport (43). But could Part 107 UAS pilots fly over the airport?
I made the call they could not for the following reasons but I welcome your feedback and discussion if you have a difference of opinion.
The Class G airspace airport was closed by NOTAM to regular traffic but available for emergency traffic and of course any aircraft that was not paying attention to the NOTAMS.
There is no airport manager located at the airport and the telephone number for the airport manager is unanswered.
Class E airspace begins at 700′ AGL and is above the airport.
The airport has a published instrument approach on both ends of the runway.
The area of the airport property that was closest to the operation was occupied by members of the general public for observing the event.
There was no written authority from the unknown airport owner for permission to fly.
Pilots did not have VHF radios to monitor and manned aircraft traffic.
Here is what we do know.
According to FAR 107.41 “No person may operate a small unmanned aircraft in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control (ATC).” That would seem to indicate no permission to operate over the airport below 400′ would be required.
The FAA, however, says UAS operation under a blanket COA must remain “Two NM from an airport without a published instrument flight procedure or an operational tower.” – Source
But a COA pilot is not a Part 107 pilot so that is informative but does not apply or answer the specific question.
In North Carolina, you can’t launch and recover UAS from “State or private property without consent.” Additionally, “local government may adopt an ordinance to regulate the use of the local government’s property for the launch or recovery of unmanned aircraft systems.” – Source
We also have the issue of “Any person who willfully damages, disrupts the operation of, or otherwise interferes with a manned aircraft through use of an unmanned aircraft system, while the manned aircraft is taking off, landing, in flight, or otherwise in motion, is guilty of a Class H felony.” – Source
So considering the possible flights could not take place over people, would then have to deviate around people towards the end of the runway with an instrument approach, it then gets tricky.
And to make it even more interesting we have the issue of where navigable airspace begins and a UAS can interfere. If we look at FAR Part 91.119 we see that a minimum safe altitude is “an altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.” A manned aircraft also the right to operate at any altitude “when necessary for takeoff or landing.” – Source
On top of all of this is the issue of airport ownership and property rights. Since it is presumed “landowners own at least as much of the space above the ground as they can occupy or use in connection with the land” and the property surrounding the airport was maintained and used by the airport it left the issue of how high the property rights went. This theory was first put forward in United States v. Causby.
Absent the ability to locate and gain approval from the airport manager the only remaining airspace authorization entity would have been Air Traffic Control (ATC). And according to the FAA, “ATC authorization or clearance may depend on operational parameters similar to those found in part 91. The FAA has the authority to approve or deny aircraft operations based on traffic density, controller workload, communication issues, or any other type of operations that could potentially impact the safe and expeditious flow of air traffic in that airspace.”
FAR Part 107.43 says, “No person may operate a small unmanned aircraft in a manner that interferes with operations and traffic patterns at any airport, heliport, or seaplane base.”
And here is where it gets very interesting.
In 2017 the FAA issued a legal interpretation letter which you can find here.
At issue was Part 107 flight operations in Class G airspace. As the FAA says, “airport owners or operators have the ability to manage operations on the surface of the airport, airport owners or operators may not regulate the use of airspace above and near the airport.” The opinion letter goes on to say, “Part 107 operating rules apply at all times and not only when an aircraft operates on or in the vicinity of a specific airport. In an effort to safely integrate sUAS and manned aircraft at an airport, airport operators may recommend certain areas where sUAS operate, in order to avoid conflicts with manned aircraft. Remote pilots should adhere to those operational recommendations and discontinue operations if the potential for interference arises. When operational necessity requires the remote pilot to operate at or near an airport in uncontrolled airspace, the remote pilot must operate the sUAS in such a manner that it does not interfere with operations and traffic patterns at any airport, heliport, or seaplane base. Therefore, the remote pilot should operate the sUAS in such a way that the manned aircraft pilot does not need to alter his or her flight path in operations that include flight in the traffic pattern, on visual approach or departure, or on a published instrument approach or on instrument departure, in order to avoid a potential collision.”
So Given All This, Here is My Opinion
With no evidence of any approval of the entity who owns the property that appeared to be managed by the airport, it would not be wise to conduct UAS flight over the property or launch or recover the UAS off that property.
If an aircraft needed to make an emergency landing the prevailing approach in use in the area would have been Runway 21 which was the near end of the airport.
If an emergency aircraft or a manned aircraft made an error and made an approach to Runway 21 then there was concern that any UAS flight over the property appearing to belong to the airport and on the approach end could create a hazard for that aircraft.
There was poor immediate communication with other UAS pilots, no agreed radio communication link with three of the five pilots. UAS pilots could not monitor the airport frequency.
Given all of that, my advice was that no UAS pilot should operate off or over the property which appears to be designated for the airport.
However with written authorization from the airport manager or operator and all UAS pilots monitoring the CTAF of the airport, flight operations could have been conducted safely and in that case, I would have agreed it was okay. Of course, we also would have needed permission of any property owner if any of the land appearing to belong to the airport did not.
I’d Love to Hear Your Opinion and What You Would Have Done
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