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


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.


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: 8811

Comment by Patrick McKay on February 5, 2014 at 10:26am

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.

Comment by Brendan Schulman on February 5, 2014 at 10:29am
We addressed the lower airspace/FAA jurisdiction point in our reply brief, including Causby and other cases. See the last section of this:
Comment by ArileyS on February 5, 2014 at 10:38am

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.) 

Comment by Rob_Lefebvre on February 5, 2014 at 11:28am

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.

Comment by hal on February 5, 2014 at 11:47am

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.

Comment by ArileyS on February 5, 2014 at 12:04pm

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.

Comment by Patrick McKay on February 5, 2014 at 12:10pm

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.

Comment by hal on February 5, 2014 at 12:41pm

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.

Comment by ArileyS on February 5, 2014 at 12:50pm

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.

Comment by hal on February 5, 2014 at 1:01pm

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. 


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