Yesterday, October 27, 2014, the Federal Aviation Administration issued Notice to Airmen (“NOTAM”) No. FDC 4/3621, replacing NOTAM No. FDC 9/5151 from 2009 concerning the operation of aircraft and parachutes in the vicinity of stadiums during certain sporting events. The FAA’s new NOTAM adds the words “unmanned aircraft and remote controlled aircraft” to the scope of operating restrictions within three nautical miles of stadiums and racetracks on the day of certain sporting events, posing a potential risk of criminal prosecution to model aircraft and unmanned aircraft operators.
Background: Origins in the September 11, 2001 Terrorist Attacks
The notion of restricting airspace surrounding stadiums during a sporting event arose in the wake of the September 11, 2001, terrorist attacks which were, of course, carried out using passenger airliners. On September 20, 2001, the FAA issued NOTAM FDC 1/0257 restricting aircraft flights within three nautical miles below 3000 feet over “any major professional or collegiate sporting event or any other major open air assembly of people.” Various revisions were made to this “sports/stadium” NOTAM in successive years, such as to remove the vague “open air assembly” language and to define the specific types of sporting events to which the NOTAM applied. The apparent regulatory premise for these NOTAMS was 14 C.F.R. § 91.137 (“Temporary flight restrictions in the vicinity of disaster/hazard areas”), a regulation that refers throughout to “aircraft.” In later NOTAMs on the subject, 14 C.F.R. § 99.7 (“Special security instructions”) was cited as regulatory authority, a regulation that requires “each person operating an aircraft” to comply with security-related instructions issued by the FAA “in the interest of national security.”
In February 2003, Congress codified the stadium/sports NOTAM in an appropriations bill, Pub. L. 108-7 § 352 (2003). Notably, the statute provided exceptions for broadcast coverage as well as allowing flights for “operational purposes of an event, stadium, or other venue” including the transportation of team members and officials involved in the event, among others, but only upon the issuance of an FAA waiver or exemption. Id. The statute, which refers to “aircraft” and not to other types of devices, contemplated that modifications to the restrictions could be made “after public notice and an opportunity for comment.” Id. § 352(b). Commentators over the years have noted that the restrictions do little or nothing to prevent terrorist attacks because the three-mile distance (or 3000 foot altitude) can be traversed within minutes, while ensnaring pilots who inadvertently pass too close to a stadium during a game.1
October 2014 Superseding NOTAM
In the February 2009 NOTAM, the FAA reiterated the classification of the area surrounding stadiums during certain events as “national defense airspace” and provided that:
all aircraft and parachute operations are prohibited within a 3 [nautical mile radius] up to and including 3000 [feet above ground level] of any stadium having a seating capacity of 30,000 or more people where either a regular or post season major league baseball, national football league, or NCAA Division One football game is occurring.
FAA NOTAM No. FDC 9/5151 (Feb. 10, 2009).2
These restrictions were indicated to be in place one hour before the sporting event to one hour after the end of the event. Id.
In the new superseding NOTAM issued by the FAA yesterday, the FAA added the words “unmanned aircraft and remote controlled aircraft” to the operative text, so as to provide:
all aircraft operations; including parachute jumping, unmanned aircraft and remote controlled aircraft, are prohibited within a 3 [nautical mile radius] up to and including 3000 [feet above ground level] of any stadium having a seating capacity of 30,000 or more people where either a regular or post season major league baseball, national football league, or NCAA Division One football game is occurring.
FAA NOTAM No. FDC 4/3621 (October 27, 2014) (emphasis added).3 The term “remote controlled aircraft” is not defined nor familiar from recent FAA policy documents; if the term was meant to refer to model aircraft, it is unclear why that language was not used in the NOTAM only a few months after the FAA’s noteworthy “Interpretation of the Special Rule for Model Aircraft,” 79 Fed. Reg. 36,172 (June 25, 2014).4
The impact of the textual change is potentially quite substantial. NOTAM No. FDC 4/3621 places within its scope stadiums with a capacity of 30,000 or more, even if far fewer than 30,000 people are in attendance. Nearly 350 colleges and universities are members of the NCAA Division I.5 There are estimated to be approximately 150 professional and college stadiums in the United States with a capacity of 30,000 or more.6
The FAA’s NOTAM now purports to criminalize the operation of model aircraft near those locations on the day of baseball and football games (among other sporting events such as auto racing), even if the operation is conducted by the institution, team, or facility itself (in the absence of a formal waiver from the FAA).
The FAA’s issuance of the NOTAM follows a series of publicized incidents involving remote controlled model aircraft (“drones”) operated near stadiums and ball parks, and may be perceived as response thereto, notwithstanding the observation that the national security issues addressed by the original September 2001 stadium/sports NOTAM was quite different from potential safety or nuisance issues that could be said to be posed by small model aircraft or drone operations.
The consequence for a violation of national defense airspace is potentially quite serious, including a fine, imprisonment for up to one year, or both. See 49 U.S.C. § 46307. Unfortunately, compliance with stadium/sports flight restrictions is generally known to be challenging because the FAA does not publish individual notices of the many sporting events to which these restrictions are said to apply. (Major League Baseball, for example, involves 162 games per year per team.) Model aircraft and civilian drone operators who believe that the new NOTAM applies to their activities and endeavor to comply with it may wish to consult professional and university team schedules or unofficial aviation information resources such as SkyVector.com for an indication of upcoming sporting events in their operating areas.
In a defense to an enforcement action or criminal proceeding, the FAA and prosecutors would face legal arguments concerning the categorization of remote-controlled model aircraft as “aircraft” for regulatory purposes, particularly because the regulations and statute authorizing the imposition of the stadium- related flight restrictions address “aircraft” operated by “airmen” and not other devices. The treatment of model aircraft as “aircraft” for regulatory purposes was rejected in a March 2014 decision by an NTSB administrative law judge in the civil penalty proceeding Huerta v. Pirker, CP-217 (March 6, 2014), which decision is currently pending on appeal before the NTSB Board. (This firm is counsel of record for Mr. Pirker in that matter.) A challenge as to whether any new regulations may be imposed by the FAA upon the operation of model aircraft, particularly in the absence of proper rulemaking, is also pending in recently-filed litigation in the U.S. Court of Appeals for the District of Columbia Circuit, UAS America Fund LLP v. FAA, Case No. 14-1156 and Academy of Model Aeronautics v. FAA, Case No. 14-1158). (This firm is counsel of record for petitioners in those two proceedings.)