FOIA Response Reveals FAA Routinely Misrepresents the Law Regarding Unmanned Aircraft

 

The FAA has finally provided the first set of documents in response to a FOIA request I filed back in April 2013, requesting copies "of all records related to investigations and enforcement actions related to alleged violations of regulations, rules, policies, or advisory circulars by operators of unmanned aerial systems." After months of delays, excuses, and requesting extensions, they have provided copies of 17 cease and desist letters sent by various FAA regional offices to UAS operators in 2012 and 2013.

I filed my FOIA request after this article was published by TheIndyChannel in Indianapolis last April, which described documents they received in response to a FOIA request, stating that:

  • 23 investigations were launched by FAA over the past two- years in response to complaints or inspectors finding drone flights depicted online
  • 10 drone operators received warning letters or advisories that their flights were illegal
  • 5 unauthorized drones were spotted by pilots and reported to FAA
  • Several drone operators garnered new complaints after having been previously warned by the FAA that their flights were illegal

Since the Indianapolis news outlet did not make the documents they received public, I filed a FOIA request of my own in an effort to obtain the same documents. Nine months after my request was filed, the FAA has only been able to provide me with copies of the cease and desist letters they have sent out (now numbering 17). They are still searching for other records relating to investigations and enforcement proceedings initiated by their regional offices, which their latest communication estimates will be available in mid-March.

Here is the response letter I received from the FAA, followed by the responsive documents themselves (unfortunately Scribd documents do not seem to embed properly on this site). The documents are also available for download as attachments to this post.

View on Scribd: FAA FOIA Response Letter 2-4-14

View on Scribed: FAA FOIA Response 2-4-14

Impressions

While I have not yet have time to go over the provided documents in detail, here are my initial impressions:

  1. Though the cease and desist letters were sent out by different regional offices of the FAA, they all follow the same basic structure and they are all clearly working off the same form letter.
  2. The FAA seems to be exclusively targeting UAS operators who are using drones for commercial aerial photography (or in the cases of the University of Missouri and the University of Nebraska, universities that wish to teach people to use drones for aerial photography). Other commercial uses of unmanned aircraft, including agriculture, commercial YouTube channels, sponsored competitions, etc. do not appear to be targeted.
  3. Most of the letters were sent to individuals/companies that had either been the subject of recent media coverage highlighting their use of RC aircraft for commercial aerial photography, or who were advertising such services on the web.
  4. The FAA routinely misrepresents the law regarding unmanned aircraft in its cease and desist letters.

Legal Misrepresentations

In all of the provided letters, the FAA actively misrepresents that status of the law regarding both commercial and hobbyist model aircraft, as well as the legal effect of key documents and legislation.

1. The FAA misrepresents the legal status of commercial UAS

The most significant misrepresentation is the repeated assertion that flying unmanned aircraft for commercial purposes is prohibited. The FAA repeatedly states that commercial operators are using UAS "without proper authorization" and are therefore "in violation of FAA guidance for UAS," or "in violation of FAA mandates for UAS," warns UAS operators that "operations of this kind may be in violation of the Federal Aviation Regulations and result in legal enforcement action," speaks of "devastating liability" in the event of an accident, and concludes with a command either requiring or "advising" the subject to cease UAS operations.

Each of these letters is premised on the notion that the FAA's 2007 Policy Notice creates a mandatory prohibition that is binding on the general public. However, by law a mere "policy notice" by a federal agency cannot create legally binding and enforceable obligations on the general public. Only "regulations," passed through the proper notice and comment procedures dictated by the Administrative Procedures Act, can be considered mandatory. This is one of the central issues in the ongoing case regarding Raphael Pirker ("Trappy"). In fact, in a legal filing in that case, the FAA even admitted:

"To the extent that the Respondent is arguing that the information contained in the AC 91­57 and
the 2007 Notice supersede the operational requirements contained in 14 CFR part  91 regulations, it
2 is clear that compliance with the regulations is mandatory, while the policies addressed in AC 91-57 
and  the  2007  Notice  are  not  mandatory."

Despite this admission, the FAA continues to label failure to abide by the 2007 Policy Statement's prohibition on commercial use of unmanned aircraft as a "violation" which could subject operators to legal enforcement action. This begs the question, how can someone be penalized for failure to obey a non-mandatory policy? What regulation are they violating, and on what basis could the FAA initiate an enforcement action if compliance is not mandatory? The FAA has no answers to these questions, which is likely why they have never initiated an enforcement action against someone solely for operating a commercial UAS. Yet they continue to misrepresent the law and tell people such operation is illegal, despite having no legal basis for this claim.

2. The FAA Misrepresents the legal status of hobbyist RC aircraft

The boilerplate statement regarding hobbyists in the most recent versions of the FAA's letter says:

Advisory Circular 91-57 for recreational hobbyists. Those who use UAS only for recreational enjoyment and not for compensation or hire, operate in accordance with Advisory Circular 91-57. This generally applies to operations in remotely populated areas away from airports, persons and buildings, below 400 feet AGL and within visual line of sight. The FAA Reauthorization Act of 2012, now Public Law 112-95, Section 336, also defines Model Aircraft and their allowed uses, restricting their operation to visual line of sight operations and to hobby or recreational purposes.

This statement misrepresents both AC 91-57 and Public Law 112-95. Both by its nature as an advisory circular and by the express terms of its text, compliance with AC 91-57 is entirely voluntary. Contrary to the FAA's clear implication here, there is no implied condition that hobbyists must comply with every provision in AC 91-57 in order to qualify as hobbyists. Given that there are AMA model aircraft fields located in the middle of major cities like New York and on active airport grounds, model aircraft are obviously not restricted to rural locations away from airports. AC 91-57 also contains no mention of the term "visual line of sight." Considering it was written in the 1980s, long before long-range FPV capability existed, this is not surprising.

The first mention of the term "visual line of sight" in reference to hobbyists occurred in the FAA's 2007 Policy Statement, and not even in the actual "policy statement" portion of the document, but in the descriptive section above it. The actual wording was, "The FAA expects that hobbyists will operate these recreational model aircraft within visual line-of-sight." Not even the 2007 Policy Statement says hobbyists are required to remain within visual line of sight. Rather, the non-operative preamble of the document states that the FAA "expects" that hobbyists will remain within visual line of sight. (This expectation, incidentally, is clearly contrary to reality, given that thousands of FPV hobbyists regularly fly beyond visual line of sight all the time.) To the extent the FAA implies that AC 91-57 or the 2007 Policy Statement impose a visual line of sight condition in order to qualify as a hobbyist, they are misrepresenting their own documents.

The same goes for the idea introduced in the 2007 Policy Statement that AC 91-57 somehow provides "authorization" for hobbyists to operate RC aircraft, when the very document says nothing of the kind. Nowhere in AC 91-57 is there any kind of statement of authorization or any other indication that this document is intended to confer some kind of legal authority to operate model aircraft. By its own terms, "This advisory circular outlines, and encourages voluntary compliance with, safety standards for model aircraft operators." Nothing more. To interpret this document as providing the sole legal basis for model aircraft operation is a legal ret-con unworthy of serious consideration.

Second, the FAA misrepresents the legal effect of the FAA Reauthorization Act. The letters state that the model aircraft exception in Sec. 336 restricts model aircraft to non-commercial use within visual line of sight. That is simply false. Section 336 begins:

Notwithstanding any other provision of law
relating to the incorporation of unmanned aircraft systems into
Federal Aviation Administration plans and policies, including this
subtitle, the Administrator of the Federal Aviation Administration
may not promulgate any rule or regulation regarding a model
aircraft, or an aircraft being developed as a model aircraft, if—

By its own terms, the only entity subject to the provisions of Sec. 336 is the FAA itself. The Model Aircraft Exception serves only to restrict the FAA's authority to regulate model aircraft, and the definition of model aircraft it provides only defines what is considered a model aircraft for the purposes of that exemption. The Act in no way purports to establish a general definition of what is and is not considered a model aircraft. Neither does it have any legal effect on the general public or restrict how citizens are allowed to operate remote control aircraft in any way. When you consider that the hobby exception occurs in the context of a congressional directive to the FAA, ordering the agency to create regulations for  unmanned aircraft, it is obvious that the only thing the Act restricts is the FAA's authority to regulate. To suggest that this act imposes restrictions on modelers at large is disingenuous at best.

Conclusion

From the above, it is clear that the FAA is actively misrepresenting the legal status of unmanned aircraft in order to cow business offering unmanned aerial photography services into compliance with an improperly adopted prohibition that is in all likelihood unenforceable. It's time for drone enthusiasts to realize that the 2007 Policy Statement is most likely toothless, and to begin calling the FAA on their illegal attempts to enforce a non-law.

Attachments: FAA Response LetterResponsive Records.pdf

Load Previous Comments

  • Moderator

    Gary Mortimer

    But will you be allowed to do that with hobby price equipment?

  • Quadzimodo

    Fascinating!
  • Patrick McKay

    Gary - I guess that's the question isn't it? But I'm honestly not so worried about platform requirements. For one thing, there aren't really any military quadcopters - the type of aircraft that the vast majority of small-time commercial operators will fly, as well as hobbyists. There are certainly some that are fancier models in nice looking cases, but they use the exact same components as hobbyist craft. So if the ASTM's idea is to impose milspec standards on everything, that quickly breaks down when you consider small drones that have no current military use and don't even have an established milspec. They're not going to require local realtors or event photographers to use Predators for what they do. We're talking totally different aircraft for totally different missions.

    Beyond that, hobbyist parts and equipment are ubiquitous and getting cheaper and more abundantly available all the time. Even a lot of $20,000 commercial drones are using a lot of re-purposed hobby-grade equipment, wrapped up in a fancy package and sold to gullible deep-pocketed corporations who are willing to pay tens of thousands of dollars for the same capability hobbyists can achieve with a few hundred. So especially when applied to small UAS, I don't see government standards requiring everyone to use military grade hardware as a much of a risk, mainly because it's hard to see what they would even mean.

    I grant that military contractors will have an advantage where large unmanned aircraft are concerned, but I don't think that holds true for small aircraft like quadcopters.


  • Moderator

    Gary Mortimer

    Well AV has the Qube and of course the Raven and Puma in the fixed wing world.

    http://www.avinc.com/glossary/qube_uav

    Indago from Lockheed Martin

    http://www.lockheedmartin.com/us/products/procerus/quad-vtol.html

    There are others, you are right several UA in the military use Hitec servos!

    We live in interesting times. Lets hope they opt for nothing for under 2kg/ Other than signing that you will behave and a rough idea of where you are operating. Plainly big fine if you foul up. France has the current winning fine 75k Euros or one year in jail.

    I think 99.9% of the work will be done by platforms weighing less than 55lbs in the future.

  • Andrew Rabbitt

    Congratulations Patrick for a fascinating insight into the workings of the FAA.  From my perspective, the whole thing smacks of vested interests driving the whole show in order to create quasi-monopoly situation via red-tape.  The same thing, by the way, that some allege cause the outsized costs of medical treatment in the US.  The term is regulatory capture, I believe, and is a great way to disguise monopolies and oligopolies as free-market operations.  I mean, think of the children please...

  • Euan Ramsay

    I love it. Nice one Patrick - I look forward to seeing how the FAA wriggle out of this one. I have long wondered how an agency can enfore *law* through *guidelines* (ie the AMA guidelines). Across the pond, no lawyer would even attempt to prosecute this case, because it's common sense that advisory rules are not law.

  • Euan Ramsay

    In addition, I believe that a judge will make an assessment - or advise a jury to make an assessment - base on the fact the prosecutor was unable to provide documents to the defendant. Withholding or destruction of documents pertinent to the defence's case is seriously frowned apon.

    While it is not enough to have the case dismissed - as the evidence is for profile building, not direct to the case in question - it will count heavily against the FAA in this case.

  • Patrick McKay

    Umm, I'm not sure where you're getting the witholding documents from. My efforts to obtain these records via a Freedom of Information Act (FOIA) request had nothing to do with the Pirker case. I am not his attorney, though I have done a bit of research for Brendan to help with the case. The FOIA request was my own project and had nothing to do with that. As far as I know from what Brendan has stated publicly, the FAA has met all of their discovery obligations to provide documents in respect to the Pirker case. Their delay in responding to my FOIA request has no bearing on that case.

  • Euan Ramsay

    Ahah - my misunderstanding - apologies.
  • ArileyS

    The most interesting thing to me is that the more recent cease and desist letters from Mr. Alvin A. Brunner (the third) include the following:

    "Private land owners do not have any jurisdiction over the airspace above their property and cannot prohibit or allow aviation operations over their land."

    What a claim!

  • Rob_Lefebvre

    Ariley, what are you getting at?  That is a valid statement.

  • ArileyS

    No it's not, it's a statement that isn't valid at all and that isn't at all settled in the law.  It runs afoul of the only applicable Supreme Court ruling:

    "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run" -- United States v. Causby, 1946

    See Who Owns the Sky? by Stuart Banner for an eye-opener.

  • Patrick McKay

    One of the issues in the Pirker case is how low "navigable airspace," over which the FAA is granted exclusive jurisdiction, extends. Really that is not settled law yet. At most only half of the FAA's statement is in any way settled law. There are court rulings that suggest private landowners have no right to prohibit aircraft operations above their land, but the issue of whether they have authority to authorize low altitude flights in the airspace immediately above their land has never been decided before. That's one thing the Pirker case should hopefully shed light on.

  • Rob_Lefebvre

    Ariley, "immediate reaches".  If you want to build something, you can (subject to building codes).  But that doesn't mean you can stop people flying over your properly.

  • Patrick McKay

    Correct, but as I said, just because you can't stop people from flying over your property does not necessarily mean you cannot conduct your own flight operations at low altitudes solely within the boundaries of your own property, irrespective of the FAA. The FAA's exclusive jurisdiction to prohibit flight operations is settled law, but not necessarily their exclusive jurisdiction to authorize it.

  • Brendan Schulman

    We addressed the lower airspace/FAA jurisdiction point in our reply brief, including Causby and other cases. See the last section of this: http://www.suasnews.com/wp-content/uploads/2013/12/PirkerReply.pdf
  • ArileyS

    The Causby family was awarded damages for aircraft that passed between 83 and 365 feet above ground, implying that the land owner does in fact "own" the airspace to at least 365 feet.

    What constitutes "the immediate reaches" over which a landowner "must have exclusive control" has never been clarified, thus it's not settled law, but I wonder if this is why the FAA issued a voluntary "edict" for model aircraft in the first place (you tell me if it's a coincidence that the 365ft Causby ruling falls just below the AC 91-57 altitude of 400ft) ... regardless, I think it's clear that drones are going to force clarification in the courts over the next several years.


    (As an aside, I would argue the use of the words "exclusive control" in that decision implies both the power to prohibit or authorize whatever the landowner likes.) 

  • Rob_Lefebvre

    Patrick, I was not saying that I thought people did not have the right to fly over their own property, just that they don't have the right to stop other people flying over their property.

  • hal

    A land owner "owning" the airspace above their land is outdated and not true anymore.  This was changed many many years ago when aviation started to become a viable mode of transportation.  I do not remeber when exactly, but it has, and there is record of the change in view on this matter.  An aircraft flying as low as the Causby case was in violation of many FAA rules and because it was, that could have been the reason for the damages, not that it was flying above his land.  Lastly the FAA doesn't know what to do with UAS.  How they will truley integrate into the current system is beyond comples and messy proposition.  This isnt being held up by corporate money.  It is just that complex of a problem, and when trying to write a rule that encompasses the unknown future things get worse.  In regards to the FAA enforcing "advisory" items, it happens all the time in aviation.  If the FAA advises it, it is basically regulatory in nature.  They work within their own justice system as I have tried to explain before.  The best part about the UAS debacle is that now more people will understand what pilots and aviation companies have been complaining about since deregulation and the inception of the FAA.

  • ArileyS

    You may be of the opinion that a landowner controlling his/her immediate airspace is an impractical idea, but it is certainly still true in the case law, and I would think it would take nothing less than another Supreme Court decision to overturn the understanding established by Causby.

    Of course, the opposite idea that the FAA has exclusive control of all airspace down to your lawn is equally impractical and is how we end up in a situation where an entire industry is held in stasis for nearly a decade.

  • Patrick McKay

    Sounds like the real problem is much broader than  UAS then. Namely that for decades the FAA has functioned as essentially a lawless agency making up arbitrary rules and enforcing them all without following proper rule-making procedures. Any political science course will teach you that three crucial aspects of the rule of law are having laws that are promulgated, non-arbitrary, and non-retroactive. If the FAA can make up arbitrary rules on the spot that are not properly promulgated and then enforce them retroactively by punishing people for violating a rule that did not exist prior to initiation of enforcement action, then they are violating the basic rule of law.

  • hal

    The FAA has lost many an enforcement action because they have not promulgated or followed the rule making process.  It is nothing new if you read up on the history of the FAA.  And yes the FAA has complete control of the airspace.  It was given this control by Congress.  The old theory was the property owner had rights to the airspace obove their property.  When airplanes started flying around this was challenged.  It would have been impractical for aviation to have to get permission to cross every individuals airspace.  So this view was changed to the person does not own the airspace above their property.  To my knowlege there has never been a definitive answer as to where the line is drawn between what is "your" airspace and what is controlled by the FAA.  In the FAA rule definitions of airspace it is all AGL, or above ground level.  So my guess is that when you try to argue against the FAA on the airspace issue this will be the interpretation they adhere to.  Back to the Causby case, flying over someone lower than 500 feet is illegal.  The aircraft operator could have caused "damages" at that altitude but still have been within FAA controlled airspace.  I do not know the exact specifics to that case, but it is not my opinion in regards to who owns the airspace, that is the way it is currently interpretted.

  • ArileyS

    jg, you're missing the point ... no one is arguing that cujus est solum be revived (the property owner owns everything above his property to infinity and beyond).  I agree that the advent of the airplane thoroughly destroyed that common law understanding of property rights.  But in the same legal wrangling brought about by manned aviation, there was eventually an understanding that the property owner does still own some airspace.  How much?  Never clarified, but clearly the FAA does not have authority below some altitude.  Maybe it's the Causby 365ft number, maybe it's 500ft (above which is the "navigable airspace"), maybe the FAA will get the right judge and it'll be 50ft.  But the answer matters A LOT when it comes to civilian drones, and I'm certain the FAA would prefer it not be argued in court.

  • hal

    I completely agree with you on that.  And its probably one of the reasons they have not pushed the issue to court.  The other part of the equation is the new legal rules in place in the last year or two regarding FAA enforcement actions.  I don't think there has been enough cases through the system to see what the likely outcomes will be.  I can say though that they state certain airspace is "from the surface" and others are agl.  The more restrictive the airspace (SFC E, D, C, B) the more they claim control.  With G airspace they could care less the majority of the time.  I have flown at airports located on Cliffs and aircraft navigate "under" the airspace because the definition used to say above the surface of the airport.  Nobody could give me a answer to if those aircraft were legal or not in what they were doing.  Not the FAA, not controllers, and clearly not the written rules they have in place.  If I had to guess even UAS will have to adhere to the same airspace rules as manned aircraft.  It is really the only way to integrate them successfully into the system.  That means primarily flying in G airspace which coincidentally is either away from populated areas or low to the ground. 

  • Brendan Schulman

    But it has been argued in court.  See Section III.

    http://www.suasnews.com/wp-content/uploads/2013/12/PirkerReply.pdf

     

  • DOZDOG

    Seems like the AMA stance at this point is moot!    Sorry, Charlie:  Only congress gets to make laws!

  • hal

    i dont think it "has" been argued, it is currently being argued in court.  I dont't think an opinion has been reported yet on this case.  I thought they went after Pirker for careless and reckless operation of an aircraft?  I think the FAA will eventually lose the Pirker case.  The Causby case the plantiff had damages and was awarded compensation for them.  I would doubt if it was just the low flying aircraft any compensation would have been granted.  In the Pirker case nothing was damaged, and nobody is claiming damage.  But it has worked for the FAA.  How many people are now more controlled in what they do with FPV?  How many commercial operations or companies ceased operation or curtailed operations to make sure this doesnt happen to them?  In the end I think that is what the FAA is after.  Putting the brakes on things until they can figure out how to regulate it succesfully. 

  • Brendan Schulman

    There is no decision yet.  I was referring to the two prior comments suggesting the FAA "would not want it argued" in court.

  • ArileyS

    Brendan, didn't mean to disregard your case and I'm a huge fan of what you're doing, but I'm also one that hopes that you succeed in having the case dismissed.  If so, the question goes unargued and I'm still left wondering where the line in the sky actually is.

  • Andrew Rabbitt

    If the FAA fail in their case against Mr Pirker, then isn't a blurry line in the sky a good thing...?

  • Brendan Schulman

    Ariley, if there is a dismissal at this early stage the significance may turn on what the basis for the dismissal is.  We argued multiple independent bases for dismissal and not all of them will necessarily be addressed if one of them is ruled to be a sufficient basis for dismissal.

  • Andrew Rabbitt

    Would it be fair to say that if there are several bases, then the their Honour will choose only the one that least upsets the FAA apple cart, leaving space for them to continue terrorizing the unwashed who wish to dabble in commerce of the air...

  • ArileyS

    Andrew, I dunno ... I'd like to see it clarified in favor of small drones (i.e. Causby altitude or higher) just to shut up those who seem to love their Benevolent Regulator and assume that He always has our best interests at heart.  They have overrun this "community" for the last decade with a few exceptions, one of whom is facing a big bogus fine at the moment and is giving the FAA a fight they didn't count on.  

    Of course, there's the risk that it gets clarified much lower than is useful to us, which is probably likely given that the Regulator worshipers seem to be common everywhere these days, and the judges play for the same team.  Double edged sword I guess.

  • Stephen R Mann

    The biggest threat to small commercial UAV operators will be the AMA.  The FAA has unfortunately included them in the NPRM discussions as the small UAV experts.

    AMA and FAA are making our rules.

  • Brendan Schulman

    A reporter at Motherboard has attempted to follow up with all the recipients. 

    http://motherboard.vice.com/blog/these-are-the-companies-the-faa-ha...

  • Patrick McKay

    Nice. That Jason guy at Vice is really on top of this stuff.

  • John Dennings

    Thank you for this. Great work.

    On "the other front", is there an estimate as to when the Pirker case will be decided?

  • Brad Hedges

    NOT trying to start an argument here, but did you even read section 336 of 112-95? You included the prelude in your very informative article, but you seem to be doing a bit of mis-information yourself.

    When you read on past the prelude, you see that the law clearly *does* give the FAA authority to regulate uses "Other Than Recreational". This would obviously include commercial use, such as aerial mapping, etc.

    Don't get me wrong - I don't agree with it any more than anyone else here - but I don't think that misrepresenting what it (Public Law 112-95, Sec 336) says, you are doing a disservice to those of us you are working to inform.

    Here is a link to the FAA's website posting of the law in question. Section 336 is on page 67:

    http://www.faa.gov/regulations_policies/reauthorization/media/PLAW-...[1].pdf

    Brad
  • Stephen R Mann

  • Macboffin

    Quads etc HOW big? Big as this "Black Knight" perhaps? (Thinks," Chop the wings off a Jumbo, bulk order a few hundred Quadra engines, props etc, a few miles of fuel tubing......."

  • Patrick McKay

    Brad, I never denied that the Reauthorization Act gives the FAA authority to regulate UAS that fall outside of the hobby exception in Sec. 336. It most certainly does. However, the FAA has not yet properly exercised that authority (by adopting a regulation pursuant to the notice and comment procedure specified in the Administrative Procedures Act). Until it does so, all rules it currently purports to have are void and unenforceable. Hence there is no valid regulation currently prohibiting commercial UAS use.

    But if the FAA actually published the forever rumored NPRM, held the comment period, then formally adopted the regulation, any rules regarding SUAS use that fall outside of the hobby exception would be enforceable regulations, while any provisions of those regulations that purported to regulate hobbyist model aircraft flown within the parameters of the hobby exception would be void, since they would exceed the authority given to the FAA by Congress.

    Make sense?

  • Brad Hedges

    Gotcha. Thanks, I misunderstood what you were saying. And, as with the other commenters, full support for what you're doing!
  • John DiMiceli

    The FAA regulates ALL airspace through Title 14. If you dig you can find provisions for both civil and criminal penalties. Until recently nearly all UA activity has been limited to modelers so the voluntary AC 91-57 was sufficient for its time but now, due to the exploding capabilities and commercial interests, ALL unmanned aircraft are coming under the scrutiny of the agency on a level with manned aircraft. Make no mistake, the FAA fundamentally now sees the "model" you built or bought no differently than the big stuff. Also, the FAA regulates private and commercial flight differently and we are seeing the same distinction applied to UAs. The wording is clear... you may not as a civilian currently fly an unmanned aircraft anywhere in the United States for hire, period. You can play legal tag with the feds, but why on earth would you want to start a legitimate business on that basis? God forbid you damage property or hurt someone while flying illegally, do you think an insurance firm will pay under those circumstances? Depending on how the new rules emerge, the ability of R/C modelers to make money off their skills may be severly curtailed or eliminated altogether.
  • Patrick McKay

    John, not true. Court precedents under the Administrative Procedures Act show that a federal agency cannot suddenly completely reverse course on its entire regulatory approach in a particular area without engaging in formal rule making. For decades the FAA treated unmanned aircraft as not subject to any of the regulations for full scale aircraft. They cannot now reverse that approach and treat them the exact same as all other aircraft without a new regulation passed through the rule making process. What you say may be true in the future after the new UAS regulations are adopted, but the fact is that legally the FAA's current "policy" is unenforceable and has no legal grounding. This is the conclusion of every non-FAA lawyer (myself included) that has studied the issue in detail. I'd recommend reading the articles on Peter Sachs' website: http://dronelawjournal.com/ for more info.

  • hal

    It is true.  Just because they chose not to enforce the rule does not mean it never existed.  And they are not reversing regulatory course.  An advisory circular is not regulation.  It is an advisory only and they can choose to change it whenever they please.  Advisories are not regulations.  I would suggest reading the definitions in 14CFR about aviation regulations.  Unless you are using the same definitions for words as the advisory agency, you are misinterpreting their meaning in regards to the regulation.  It comes down to are you flying an aircraft or not?  We all know the answer to that question.  Are you flying that aircraft for compensation or not?  The FAA has strict guidelines on this and it does not pertain to aircraft type.  It is also very clear as to what is and what is not a commercial operation.  This isn't a legal game you can win.  You are fighting agains 70 plus years of case law and agency expertise that is not in your favor.  Your talking about the FAA and no matter what your argument is they will always trump you and win with safety, your flying an aircraft which they regulate, and in airspace which they have been given the power to regulate by Congress.  They are some things to be argued over and defined such as where does navigable airspace really begin?  But arguing over whether or not they can decide to regulate "drones" or model aircraft isn't one of them.  Yeah it sucks, yeah it will probably stifle a good bit of innovation, yes people will lose the companies they formed, and yes in the end people will spend big $$$$ to try and stay unregulated only to lose.  Peter Sach isn't the FAA.  That is his opinions he writes about.  Try telling the IRS that income tax is illegal, try telling a cop that he can't give you a speeding ticket because speeding is your peaceful protest against speed laws, try telling the ATF or FBI its your second amendment right to carry a fully auto machine gun into a school.  Telling the FAA they cannot regulate your aircraft is the same type of argument.  Your not going to come out on the winning side.

  • John DiMiceli

    While the rule-making process goes forward, it couldn't be more inappropriate to issue legal challenges against the FAA. The new rules currently in review are being evaluated for being too stringent or too light. A legal battle in the midst of this is likely to move the agency toward a path of greater scrutiny AND enforcement that will make it harder in the future for both large corporations and small operators alike. I spoke with an FAA inspector last week and you know how the agency views all these Facebook posts and websites with photos and videos from UA operations that appear to be commercial ventures-- as "legal evidence". That's a direct quote. The ONLY thing stopping enforcement is time and money. Patrick: Not sure what kind of legal advice you are getting but I don't see your interpretation of this situation expressed on any of the professional UA association websites, or Wikipedia, or the FAA's own documents. The agency has, by policy, tolerated hobbyists operating small R/C aircraft, at low attitude, line-of-sight, over uncongested private property, away from all manned aircraft, for non-commercial purposes. That's it. The FAA regulates, now and in the past, ALL aircraft, manned or not, big or small, in ALL airspace (that's the ground up to the moon) over the United States. I think you are confusing R/C hobby policy grandfathered long ago with the overall reach and scope of federal regulatory law.
  • Brendan Schulman

    Disagree.  Legal challenges lead to important policy discussions that might otherwise not take place as regulations are made behind closed doors.  Also disagree that the FAA was given statutory jurisdiction over every airborne object from the ground to the moon.  This is not legal advice.

  • Stephen R Mann

    Enforcement and Policy are completely separate responsibilities.  How many times have we read that the [pick your authority] don't make policy, they just enforce it.  Same thing in the FAA.  And policy decisions *are* influenced by legal decisions.  The FAA can *claim* enforcement authority from the surface to the moon, but until a law or legal decision codifies it, it's still just their opinion.

  • Patrick McKay

    John - It is very important to be challenging the FAA's authority at this stage. Every indication is that the UAS rule, when it is published, will be incredibly restrictive and will basically make commercial use of small UAS' impossibly expensive for anyone except large corporations. There needs to be pushback from the community now to show that is not acceptable. The best chance of that is to have a thriving and rapidly growing small UAS industry now, that is too big for the FAA to squash when they publish the final rule.

    That is why the FAA is so desperate to prohibit commercial UAS now. Because they know their final rule will make what people want to do impossible, and they want to avoid the outcry that will come from forcing thousands of small business to shut down when the final rule is passed. It's easier to prevent an industry from being born than to destroy an existing industry. If those business already exist and if they make their voice heard and protest loudly to Congress about how the FAA is killing jobs and persecuting small businesses, the FAA may have no choice but to actually make reasonable rules. 

    As for legal interpretation, I'm a lawyer, Brendan is a lawyer, and Peter Sachs is a lawyer. While none of us intend anything we've said to be taken as legal advice, each of us have come to the conclusion that there are no enforceable regulations which make commercial SUAS illegal. The FAA is simply misrepresenting their own authority in a massive power grab, and attempting to suppress the commercial SUAS industry before it's born, because they have absolutely no intention of ever allowing it to exist. Somehow the FAA has interpreted integrating SUAS into the NAS to mean "ban commercial SUAS for anyone except large corporations with onerous regulations that inflate the cost of a UAS to be the same as operating a full scale manned aircraft." And we need to fight them every mile on that. 

  • John DiMiceli

    I think the best way to deal with the FAA is to become part of the process, not issue nuisance lawsuits. The prospect of drones mixing with manned aircraft, operating at night or in bad weather, over populations is something the FAA takes very seriously. What I would prefer is a dialog with you on what it's going to take to get commercial UA off the ground, not argue whether the FAA has the legal right to do what its mandate says it should do. What's clear to me is that commercial UA operations are going to look a lot like manned flight... training, maintenance manuals, checkrides, procedures, certifications, medical certificates etc. which will all be required in the name of SAFETY. If that makes commercialization too cumbersome for many, possibly even me, then I would accept that. I'm a former Navy pilot and hold several certificates up to and including Airline Transport Pilot. I frankly LIKE the idea some adult is minding the store when flying through crappy weather and not having to face some yahoo with a drone who takes a dim view of laws and procedures and the like. We had a saying in the Navy, "Safety rules are written in blood." If the new rules foster a safe environment at the expense of losing a few small operators, then so be it. There are signs, though,  the FAA is making provision for the smaller operators that might have fewer burdens as those wanting all-weather operations mixed in with manned aircraft. But saying they don't currently have the legal right to control small UAs is just crazy.