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: 8804

Comment by hal on March 2, 2014 at 4:19pm

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.

Comment by John DiMiceli on March 3, 2014 at 11:56am
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.
Comment by Brendan Schulman on March 3, 2014 at 1:15pm

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.

Comment by Stephen R Mann on March 3, 2014 at 1:31pm

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.

Comment by Patrick McKay on March 3, 2014 at 5:13pm

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. 

Comment by John DiMiceli on March 5, 2014 at 4:55pm

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.

Comment by Stephen R Mann on March 5, 2014 at 5:18pm

John, flying a camera drone 200 ft over a home for real estate photos is hardly a risk for the manned aircraft that better not be that low in the first place.

All of the objections to the FAA position is from the small video or photo operators.  Less than 50 pounds, lower than 500 ft, and almost always within sight of the operator.  Why do those aircraft need the same certification and pilot requirements of the heavy drones that *can* fly among other aircraft in the NAS?  It's perfectly legal for me to take photos of my home from a small drone, share them with friends and family on Facebook, but using them to sell my house is suddenly illegal?  What changed?  

Comment by Patrick McKay on March 5, 2014 at 5:54pm

John,

Lawsuits are pretty much the only opportunity us regular folks will have to influence UAS integration until the NPRM comment period. You want to "become part of the process"? Then become a billionaire CEO of a Fortune 500 defense contractor, and spend millions of dollars lobbying the FAA brass to listen to your opinion. That's about the only way you will have a voice in this.

And as Stephen said, it makes ZERO sense to treat light unmanned aircraft flown at low altitudes the same as full scale aircraft flying high in the NAS, subjecting them to similar licensure, certification, operational regulations. You may be content with absurd restrictions that make it impossibly expensive to take simple real estate photos at low altitudes with a 5lb quadcopter, but I guarantee you most people will not. In that case, people will simply ignore the rules, the FAA will be in the position of playing whackamole trying to enforce rules on a type of aircraft that can be launched anywhere and flown without them ever knowing about it. They will no more be able to enforce harsh UAS rules than the DEA can stop people from smoking marijuana or the RIAA can stop people from downloading their music. You'll just have another pointless prohibition.

Comment by hal on March 5, 2014 at 8:38pm

Nothing changed on the photo issue.  The interpretation and the enforcement is the same as has always been the case with the FAA.  When one decides to gain compensation for their aircraft operation, you also decide to come under a more stringent set of regulations.  People are missing some of the points that have to do with safety.  It isn't just about not mixing with manned aircraft in the NAS.  What happens if your platform malfunctions?  And it crashes, damages property, or hits a non participating person?  That is also part of the mission of the FAA.  To protect those assets and people from errant aircraft.  That is one of the reasons ALL aircraft currently have a level of certification, design requirements, operational requirements, and a level of education/certification requirements.  UAV for commercial use should be the same.  It has already been shown that people given the chance will not make the best safety decisions for themselves.  This can be argued to no end in both directions, however if safety was inherent to the human decision making process we wouldn't even need to talk about it.  EVER!  Even people when they become aircraft (skydivers) get education and have rules to follow.  The last thing anyone wants is another startup aviation industry with the safety record that goes with it.  As has been previously stated aviation is a tombstone industry.  If there is a rule or requirement it is because someone or many people died because that was not in place.  Why are new rest rules and training requirements been implemented in the last year regarding pilots?  Mainly because about 40 people died in a crash in Upstate New York flying a plane within all the regulations that were current at the time.  The regulations and experience requirements were found to be the major reason for the crash.  So they have now been increased to prevent another fatal crash occurring for the same reasons.  Being a pilot is now one of the safer professions around.  It used to be one of the most dangerous.  Regulation and rules made the difference.  It used to be the most dangerous mode of transportation.  Now it is not only the fastest, but also the safest mode of transportation because of the regulation and rules.  You have a better chance of being killed as a pedestrian walking on the street that dying in an airplane crash.  Fatal airplane crashes used to be measured in 100's of flight hours.  They have now changed the scale to per millions of flight hours for large commercial operators.  That is a direct effect of the regulations and certification process.

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