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Drone law experts say challenge to FAA registration rule is likely to succeed

Discussion in 'News' started by clackey, Jan 7, 2016.

  1. clackey

    clackey Administrator
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    “Section 336 of the FMRA expressly provides that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft,’” Brant Hadaway, a partner at Diaz, Reus & Targ, LLP, who works on regulatory-compliance cases and writes about drone law, said in an email. “When Congress says that an agency 'may not' do a thing, the agency indeed 'may not' do it.”

    Full story - Drone law experts say challenge to FAA registration rule is likely to succeed
     
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  2. gklugie

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    So, if this is indeed judged to be another federal overreach..... whos fanny goes to jail?
     
  3. JKDSensei

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    Lord...please let this come to pass.

    Everyone who lined up to register the instant the feds opened the corral ?
    I can only hope.

    On the other hand, Congress has been about as powerful as a wet noodle for quite some time now.
     
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  4. Rumbaar

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    Certainly not the higher ups responsible, that's for sure.
     
  5. gklugie

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    Hang in. This will play out. I suspected all along these jerks (FAA) lacked authority. I want somebody's can in jail. I want to see a perp walk. I want to see refunds with interest to all the premature suckers.
     
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  6. JKDSensei

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    Now hold on thar....suckers shall be treated as such. NO REFUNDS
     
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  7. snerd

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    He who laughs last, laughs best! :p

    At any other time in history, I would agree with you. But like you said................... Congress seems to be irrelevant nowadays. There will be another Executive Order, labeling drones as "not" model aircraft. It's a whole 'nother beast. Registration will stand. That's my prediction.

    ETA: and it's only because I have lost complete faith in our system of checks and balances. The Executive Branch is making a play for absolute power.
     
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  8. JKDSensei

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    You missed what I said about Congress in post #3....
    If Congress is irrelevant, where does that put the peasants?

    It saddens me deeply, but I believe you're correct. Gruberment is just too big for it's own britches these days and we're all just pee-ons. Seriously.....tried calling a Congress person lately?
    It's pretty obvious they don't want to be bothered with the peasants. Used to be when called a congress person it was taken seriously.
     
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  9. tcope

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    Even during the press conference the FAA was asked about this. They replied that the registration did not fall under Section 336 (if my memory is correct) instead it fell within their ability to enforce safety. Congress _HAS_ given the FAA the right to maintain safety in public airspace.
     
  10. Apilot101

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    Congress has only given FAA right to maintain safety in public airspace with aircraft. Specifically states Not model aircraft hobbyists. Only way they could enact something of the sort would be under emergency situation which this is not.
     
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  11. tcope

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    Drones _are_ airplanes and all airspace is public airspace. The FAA's ability to provide for safe airspace is separate from Section 336 (which is where you are getting hobbyists from).

    "(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—
    (A)
    navigating, protecting, and identifying aircraft;
    (B)
    protecting individuals and property on the ground;
    (C)
    using the navigable airspace efficiently; and
    (D)
    preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects."

    The FAA is stating that their right to create a drone registration is under their ability to maintain a safe airspace to Section 336 does not affect this.
     
  12. Apilot101

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    FAA to attempt this has tried to redefine what an aircraft is. A drone is not an aircraft. If so then they will become under the same scrutiny a real aircraft has to go through including inspections, required electronics, ability to communicate with control towers, etc.
    If Congress agreed with FAA thought process then why did they specifically address "model aircraft"?
    As per Congress...
    "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."
     
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  13. Sagebrush

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    You may want to read this from the FAA. Like it or not, your Phantom is an aircraft. At least that's what congress says.

    https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

    T
     
  14. Apilot101

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    That link is Not from Congress, it is from FAA. No more than FAAs attempted justification for there actions. Please post a link where Congress states model aircraft are to be treated as regular aircraft.
    Congress did take the time in 2012 to separate aircraft from model aircraft noting that there is a difference or separation between the 2. If Congress wanted same treatment would they have created an exemption?
     
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  15. Sagebrush

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    It's the FAA Modernization and Reform Act of 2012.

    https://www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf

    Search within it for definitions. If I recall, it's about page 80 or so.

    T
     
  16. JKDSensei

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    The FAA could call a banana an aircraft if they wanted too and some even call an AR15 an "assault Rifle"
    Does it make them right?
    I think the point is there HAS GOT TO BE a push back against nonsense.
     
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  17. Apilot101

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    Yes it's page 68. I'll save people the hassle.
    SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
    (a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Fed- eral Aviation Administration plans and policies, including this sub- title, 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—
    (1) the aircraft is flown strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a commu-
    nity-based set of safety guidelines and within the programming of a nationwide community-based organization;
    (3) the aircraft is limited to not more than 55 pounds un- less otherwise certified through a design, construction, inspec- tion, flight test, and operational safety program administered by a community-based organization;
    (4) the aircraft is operated in a manner that does not inter- fere with and gives way to any manned aircraft; and
    (5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating pro- cedure with the airport operator and the airport air traffic con- trol tower (when an air traffic facility is located at the airport)).
    (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who en- danger the safety of the national airspace system.
    (c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
    (1) capable of sustained flight in the atmosphere;
    Where does Congress give FAA ability to "legally" force rc model registration as the op stated?
     
  18. tcope

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    I'd recommend reading the Pirker case:
    http://www.ntsb.gov/legal/alj/Documents/5730.pdf

    The NTSB has established that drones _are_ aircraft. As such, they fall under the jurisdiction of the FAA. The FAA has never attempted to redefine if a drone was an aircraft, the wording was very clear. It's now been put to the test and the FAA has been determined as being correct.

    This in no way means _all_ aircraft need to be treated the same. Helicopters are treated very differently then fix wing aircraft. There is nothing saying that drones cannot fall into their own category of aircraft... and they actually do. Section 336 stipulates some of these exclusions.

    You go right back to Section 336 and I've already mention that this is _NOT_ what the FAA is asserting as their right to enforce registration. That is currently being challenged in court and we will need to wait and see what happens. Again, I'm pointing out the FAA's view on the issue.

    It's odd that you say a done is not an aircraft but then seem to rely on Section 336 limiting the FAA's control over model aircraft.
     
  19. yawnalot29

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    FAA stand on this varies depending on the situation. In case of people shooting at your drone, FAA has indicated that is not a violation of shooting bat an aircraft. And is a personal property issue. You can Google uo FAA statement on this.


    Judge Says Man Had Right to Shoot Down Drone That Was Invading His Privacy
     
    #19 yawnalot29, Jan 8, 2016
    Last edited: Jan 8, 2016
  20. Apilot101

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    1.true they can be considered aircraft.
    2. You wrote..As such, they fall under the jurisdiction of the FAA. False. The 336 I keep going back to (providing you stay within those guidelines) is NOT to be regulated by FAA.
    3. You stated that that was FAA viewpoint. We know that was their viewpoint although it's wrong per Congress.