Drone Flights Illegal.

Excerpt from above article:

Some very bad news for drone pilots this morning: An appeals board has ruled that the Federal Aviation Administration has wide latitude to make all drone flights illegal in the United States.

​The decision, by the National Transportation Safety Board, determined that the FAA's existing "aircraft" regulations can apply to model aircraft, drones, and remote controlled aircraft, which is perhaps the most restrictive possible outcome for drone pilots in a legal saga that has dragged on for more than a year.

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  • Bill, we are in agreement.  The FAA has created a situation that is wide open to abuse by those so inclined.  Worse, they have created a situation where hundreds, maybe thousands, of would-be entrepreneurs are totally frustrated by their inability to get approval even to conduct test flights, let alone do anything "useful" with UASs.  

    I just returned from Paris where I participated in last week's` AAE symposium on the "Present and Future of Civilian RPAS" (http://www.academie-air-espace.com/RPAS/prog.php  -- there is an English version available upper right) and I can tell you I came away very frustrated with the situation here in the U.S.  In 2012 the DGAC published a very well-structured set of regulations covering these vehicles and systems (see http://www.drone-rc.com/en/regulation ). The net result:  one slide presented during the conference told the story--at the end of April, 2014, there were over 1000 approved operators utilizing over 1600 "drones."  The conference was a complete sellout, and was well-attended by manufacturers, regulators, users, and interested parties.  Programs using multirotor and fixed-wing drones were presented by France TV, EDF, Bouygues, Agricultural interests, SNCF, and the petroleum industry...they are actively and legally  using these devices for the kind of network surveillance (pipelines, EDF, SNCF), crop mapping and other precision agricultural applications, etc. that we talk about in our NRC report.    In contrast to what we have here in the US., representatives from industry were publicly giving credit to the DGAC for implementing these regulations in 2012...it is clear that this action has enabled a burgeoning industry just as we discussed in our NRC report...but in this case, it isn't potential, it's real.  It was very exciting, but, as a citizen of the U.S., also very frustrating. 

    The FAA was subject to significant criticism, and not, this time, by me.  When the FAA representative present asked me at lunch the first day what I thought of that criticism, I was pretty blunt in my comments to the effect that they were "right on target."  We talked about how this situation came to be, and later in her remarks to the conference, she essentially acknowledged that the FAA was behind the power curve, but suggested strongly that the forthcoming "light UAS" rule-making ("before the end of the year" ) would change the situation markedly.  But the truth is that what is about to be released is a NPRM, and it will easily be two years before rules are actually in place.  Meanwhile, if you want to develop your UAS/Drone business, it would seem to be easier in France than here in the U.S.  

    Jake Stew has posed an interesting question above regarding "navigable airspace."  If you Google "case law: 91.119" you'll find lots of case law exists.  Jake and I agree, it won't do to claim that the FAA doesn't have the right to regulate our low-flying activities.  My concern is that any serious incident involving one of our UASs and a bystander or a civil aircraft could cause a serious over-reaction from the FAA, or worse, from Congress.   So once again, it is in our long-term interests for all of us to conduct our operations safely within the bounds of applicable regulations, and using common sense, and  as Bill says, let's "educate those who choose to be teachable."

  • Moderator

    I think everyone here agrees that we must operate responsibly and safely and use common sense.  Of course we don't fly near an airport where there are larger manned aircraft.  I think part of the problem is a lack of education and part of the problem is that idiots can buy these things too.  

    You can't fix stupid, but you can educate those who choose to be teachable.  I think promoting a simple, common sense set of guidelines might be a worthwhile compromise until the FAA comes up with a set of usable rules.

    I think that things like blanket bans and prohibitions by the FAA are something that makes the drone flying public see the FAA as an adversary instead of a helpful partner, and that can lead to a backlash.  

  • Cuius est solum, eius est usque ad caelum et ad inferos = "For whoever owns the soil, it is theirs up to Heaven and down to Hell."

    Specifically, the Federal Aviation Act provides that: "The United States Government has exclusive sovereignty of airspace of the United States."[2] The act defines navigable airspace as "airspace above the minimum altitudes of flight…

    "the pilot must remain at least 500 feet (150 m) from any person, vehicle, vessel, or structure." - 14 C.F.R. 91.119

    Seems to me that if I own a field then I own 500 feet of airspace above my property.  If I build a 30 foot tall building then I own 530 feet of airspace.

    If I'm using a drone in connection with my use of the land (say mapping or recreation), and flying at 200 feet, then aircraft are required to stay 200 + 500 feet out of my airspace, making 700 feet the lower limit of "navigable airspace".  Obviously I could extend that infinitely, which would be impractical for the rule of law and air travel.

     In early common law, when there was little practical use of the upper air over a person's land, the law considered that a landowner owned all of the airspace above their land. That doctrine quickly became obsolete when the airplane came on the scene, along with the realization that each property owner whose land was overflown could demand that aircraft keep out of the landowner's airspace, or exact a price for the use of the airspace. The law, drawing heavily on the law of the sea, then declared that the upper reaches of the airspace were free for the navigation of aircraft. In the case of United States v. Causby,[4] the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain. At the same time, the law, and the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above their property. The law, in balancing the public interest in using the airspace for air navigation against the landowner's rights, declared that a landowner owns only so much of the airspace above their property as they may reasonably use in connection with their enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the airspace above the property. A landowner can't arbitrarily try to prevent aircraft from overflying their land by erecting "spite poles," for example. But, a landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land."

    To me it seems that case law supports reasonably ownership of the airspace above your property, even to the extent that the burden is on aircraft to deal with the problems when a landowner is reasonably using their land.

    That said, I know the FAA does require lights on structures over a certain height, so it seems that reasonable compromise is the legal standard.

    So I don't understand what people are so up in arms about?  If you want to fly on public land you ARE going to be regulated at some point, and those regulations ARE going to be burdensome.  Even if there was no danger involved the gov. can simply say they don't like, or are annoyed by, your flying drones in public space and simply ban them.  You have no recourse then.

    First thing we need to do is quit flying on public property!  Fly on your own property or get permission to fly on someone else's private property.  Then we need to stay under 500 feet!  Then we need to stick to our guns that we're flying in wholly owned private property space BELOW the national airspace, and that the government has NO right to regulate our activities there.

    There can be no justification for the gov. to regulate anything that is wholly contained in private space where no other entity whatsoever has any right to enter or use.  There can be no public interest or legal justification for this.

    If anyone is aware of ANY case law that supports the gov. right to burden private citizens operating on private property please let us know!  I'm not talking building codes or zoning laws here either, just private property outside city limits where the gov. interfered, the land owner sued, and a court upheld the gov. right to straight screw over private citizens on private property with no compelling interest.


  • Bill Piedra: The FAA's attitude always seems to be that they own the sky and are letting us use it.  It's the other way around, WE own the sky, and we've hired the FAA to help us manage it.


    It's amazing how most of us seem to forget that   Meanwhile the FAA has been missing one deadline after another ... Too busy suing instead of drafting regulations as mandated by congress, I suppose.

    Nice to see at least one related mainstream magazine article questioning the status quo: 


  • Bill, you are correct, WE (THE PEOPLE) have hired the FAA to help us manage the airspace, and the way that works is that Congress, elected by US, have granted the FAA certain specific authorities to regulate access to that airspace. In fact the FAA does offer significant, positive public srevices through regulations that specify requirements for pilots and vehicles and systems to operate in our skies...that's one of the major reasons our civil air transportation system is operating at unprecedently high levels of safety. And WE (THE PEOPLE) are very intolerant of anything that threatens, or seems like it might threaten, those high levels of safety. So one more time, we in the DIYDrone community have an obligation to operate responsibly and within the applicable regulatory framework. Those in our community who deliberately and willfully operate outside those guidelines put at risk our continued access to the airspace owned by WE THE PEOPLE.
  • Moderator

    My previous post was meant to be a joke, but the FAA is now reclassifying drones as aircraft.   They are demanding to regulate them, but not offering any kind of service to the public, which is the only reason we have an FAA.  

    The FAA's attitude always seems to be that they own the sky and are letting us use it.  It's the other way around, WE own the sky, and we've hired the FAA to help us manage it.  

  • Bill, (1) 49 USC Sect 40102 says "civil aircraft of the United States" means an aircraft registered under Chapter 441 of this title. (2) 49 USC Chapter 11 Section 1132 says the NTSB shall investigate each accident involving civil aircraft. Our quads, hexas, etc are not registered aircraft, thus are not civil aircraft, and therefore, the NTSB has is not required to investigate accidents involving only them and not involving serious injury or death to any person. NTSBs own published rules say: 49 CFR 830.2 (NTSB)
    Unmanned aircraft accident means an occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which:
    (1) Any person suffers death or serious injury; or
    (2) The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage.
    Preamble to current version of 830.2, Federal Register 2010-20864:
    "Further, the NTSB intends its inclusion of the phrase ‘‘public or civil’’ in the amended rule to exclude military UASs, model aircraft, and commercial spacecraft operating under FAA waivers."

    In short, the NTSB is not interested in bent props on your Phantom, unless those props were bent in a collision with a civil aircraft, or inflicted serious injury on a person, in which case they will be very interested. Again, to avoid legal and/or regulatory reppercussions that could adversely affect our present access to airspace, we as a community need to be promoting constructive attitudes in our membership. Careless acts by only a couple of us could hurt us all.
  • Moderator

    @John No, I'm not talking about a collision with another aircraft.   Since they are aircraft now, and the NTSB's mission is to investigate all aircraft accidents, including near misses.  Since drones are aircraft now, we should call them next time someone bends a prop on his phantom.   

    A prop strike to the ground in full size aircraft is supposed to require an NTSB incident report.  

  • Trust me...if there is a collision with a registered aircraft, the NTSB will investigate...it is in our best interests to do what we can to make sure that such a collision (or even a "near miss") doesn't happen. That means flying our UASs responsibly and in accordance with existing regulations, such as they are.
  • Moderator

    Well, the next time your aircraft crashes, call the FAA and order a full investigation from the NTSB.  I think 10 or 12 NTSB / Agents visiting each crash site should be sufficient. 

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