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

Views: 8806

Comment by Andrew Rabbitt on February 5, 2014 at 12:21am

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...

Comment by Euan Ramsay on February 5, 2014 at 12:57am

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.

Comment by Euan Ramsay on February 5, 2014 at 1:04am

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.

Comment by Patrick McKay on February 5, 2014 at 1:38am

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.

Comment by Euan Ramsay on February 5, 2014 at 1:41am
Ahah - my misunderstanding - apologies.
Comment by ArileyS on February 5, 2014 at 9:34am

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!

Comment by Rob_Lefebvre on February 5, 2014 at 9:56am

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

Comment by ArileyS on February 5, 2014 at 10:05am

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.

Comment by Patrick McKay on February 5, 2014 at 10:19am

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.

Comment by Rob_Lefebvre on February 5, 2014 at 10:23am

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.

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