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FAA Delays Drone Rules Again

Discussion in 'Phantom 2 Vision Discussion' started by Butcher99, Jan 15, 2014.

  1. Butcher99

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  2. petersachs

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    You can legally use them right now for pleasure or profit.
    There are no FAA regulations that prohibit you from doing so.
    See: dronelawjournal.com.
     
  3. wincrasher

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    Why must there be regulations for everything?

    I'd rather have no law at all than the mess of BS that they are going to come up with.
     
  4. petersachs

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    Well in this instance there are none. And the FAA is prohibited under the FMRA (2012) from creating regulations concerning remote-controlled model aircraft.
     
  5. Sidewinder

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    There is nothing which government cannot screw up. This will be no different.
     
  6. Butcher99

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    Peter, I would love nothing more for that to be true but the FAA disagrees when it comes to profit. (Language below) Now, we can certainly be of another opinion but the truth is the FAA's authority to make those specifc regs has not been challenged in court yet. The closest test we have is the Trappy's case which has yet to be adjudicated. And in that case they're not going after Black Sheep on commercial grounds but on basically a wreckless flying charge. The FAA has sent numerous cease operations letters to aerial photographers looking to sell their services as well as University drone journalism programs which they say fall under the category of a commercial operation.

    I'm not saying they're right or that their declarations will hold up, but until a federal court (or Congress) says otherwise, those are the rules now.

    Model Aircraft
    Recreational use of airspace by model aircraft is covered by FAA Advisory Circular 91-57, which generally limits operations to below 400 feet above ground level and away from airports and air traffic. In 2007, the FAA clarified that AC 91-57 only applies to modelers, and specifically excludes individuals or companies flying model aircraft for business purposes.
     
  7. rmklaw

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    I agree. Unfortunately, what most people don't realize is that the current FAA regulations (FAR) prohibit any kind of flying of Aircrafts without complying with the FARs, and Aircraft definition includes UAVs. AC 91-57 is not a regulation or an intent to regulate the hobby. On the contrary, AC 91-57 is a SAFE HARBOR provision to exempt the non-commercial hobbyist from the FARs provided that the hobbyists comply with the guidelines in AC 91-57.

    In other words, if we fly below 400 feet, stay out of controlled airspace, out of the 3 mile radius of airports, safe flying, etc., etc., we are OK. However, commercial use or any kind of remuneration still prohibited and is not exempt under AC 91-57.

    I personally believe that eventually the FAA will enact regulations using as a guideline the CASA Australian regulations covering UAVs. I the past we have seen this type of coordination between the FAA, CASA, CAA, etc., for uniformity of airspace control.

    This is a great subject for discussion since it affects us all. I have done lots of FAA compliance and certification legal work on behalf of aviation clients, hence, I will be happy to try to answer any general questions (no legal advice provided). However, keep in mind that given my experience in this area, my views are CONSERVATIVE and reflect what I would do. :mrgreen:
     
  8. BigPig

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    Ain't that the truth!
     
  9. Pull_Up

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    Wow, does it seem that with our BNUC-S certification (or accepted equivalent) scheme and, on successful completion and annual validation, CAA Permission for Aerial Work we are somewhat ahead of our colleagues across the Atlantic for a change?! :eek:
     
  10. petersachs

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    I know the FAA disagrees, but that doesn't matter. I don't know what regulations you are referring to because there are none. I'm not saying anything about the FAA's authority to make regulations being challenged. I am simply stating that there are no regulations right now that gives it the authority to enforce anything with regard to commercial operation of remote-controlled model aircraft. I'm not saying that there is no possibility of future regs. I'm saying right now there are none. As for the language below, I've addressed it below.

    That's correct, Administrator v. Raphael Pirker, NTSB Docket CP-217 has yet to be decided, but should be shortly. You're also correct in that they went after Pirker ("Trappy") for reckless operation, not commercial use. If there existed a regulation that prohibited commercial use they would have likely gone after him for that. Yet they did not.

    Yes, they have sent those "cease and desist" letters, all of which could have been ignored entirely since no regulation exists to back up an FAA "order" to "cease and desist."

    That not how the law works. Unless there is a statute, regulation, ordinance or case law that prohibits something, it's legal. Again, there are no "rules," ("regulations" in this instance), to even be challenged in a court of law. They simply don't exist.

    This is not a regulation. It's from the FAA 2007 "Clarification" of AC 91-57. It merely states the FAA’s own current ​policy​​ concerning operations of unmanned aircraft in the National Airspace System. ​Although it does in fact say that remote-controlled model aircraft may not be used commercially, it’s only a policy statement, has no force in law and can be ignored entirely. A policy statement is not ​a regulation, and is not legally enforceable.
     
  11. rmklaw

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    I don't think you want to be at the short end of a FAA enforcement action on this one. Most of us do not have the resources to defend an FAA administrative proceeding. Let the sleeping dog lay.
     
  12. petersachs

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    I understand your views are conservative, (as you state), but I respectfully disagree. My views are liberal. :)

    UAVs were not contemplated under the Federal Aviation Act of 1958. They didn't even exist. The Act was intended to address the only type of flight that did exist— manned flight.

    I agree that AC 91-57 is not a regulation, but nor is it a "provision." It's nothing more than a list of "suggestions." Since there exists no other regulation forbidding commercial use of remote-controlled model aircraft, no "provision to exempt" is needed.

    I have no objections to the common sense "suggestions" found in AC 91-57, but again there exists no such FAR that prohibits commercial operation of a remote-controlled model aircraft.

    I agree that it's a great subject for discussion. :)
     
  13. petersachs

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    Actually I would love to be the respondent. :) I have no legal fees. Pestering the government to test the law is my hobby. :)
     
  14. lgeist

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    Hi Peter,

    I understand that you're not hear to give legal advice, but perhaps you could shed some light on this question:

    I'm employed as a commercial ATP pilot. If I do something with my "UAV" that the FAA determines is illegal, can they go after my ATP certificate since I'm not exactly exercising my pilot certificate at the time?

    Thanks for any insight.

    LG
     
  15. rmklaw

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    Hi Lgeist. You have a great question that I have also been wrestling with. Besides my legal profession, I also have a commercial pilot license. I don't know the "legal answer" to this. personally, I think that the FAA would go after the license and the issue is whether or not they would prevail. If you research FAA enforcement actions over the years, they have used a wide range of theories, including fitness, negligence, recklessness, in addition to clear black and white FAR violations. Hence, it is hard to predict. Having said that, If I was the one prosecuting, I would elect the route that inflicts the most leverage to get a settlement without an administrative proceeding. Sorry, no clear answer.
     
  16. petersachs

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    Not legal advice, but the FAA can't determine something to be "illegal" without having a regulation to back it up. There are no such regulations at this writing— period. I have a commercial pilot rotorcraft that I am also not exercising at this time. I have no plans to "obey" any regulations that do not exist.

    As far as the FAA going after you, well, as is the case with Administrator v. Raphael Pirker, NTSB Docket CP-217, the FAA can go after anyone no matter how baseless the accusation. (They went after him for recklessness because they couldn't go after him for operating commercially.) So, they might go after your ATP. But I see no basis for them to prevail. (No reg = it's legal)

    That said, it'll still cost you to fight the battle.

    EDIT: I wish these forums showed replies in-line. I agree with Richard's response above. There's no clear answer.
     
  17. Knotguilty

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    I have enjoyed the professional debate or discussion between "rmklaw" and "petersachs" regarding this issue. But there is one other point that I think needs to made or at least considered and that is, if the FAA does not have valid enforceable regulations then do state laws now apply in those states where laws have been enacted to restrict UAV operations? In many of the states that have enacted laws regarding UAV operation ( i think TX, OR and maybe Colorado) are much more restrictive than the FAA's non-enforceable guidance or enforceable regulations depending on how you come down on this situation.

    If you got charged or fined in one of those jurisdictions by state authorities, surely you would argue federal preemption by the FAA (i.e. this is an matter that is soly in the federal governments domain and they are regulating it). To me, I would rather have the FAA's current policy as the law of the land as opposed to 50 different laws to know and worry about. In otherwords, be carefull what you wish for (i.e. no FAA enforceable regs) because you just might get 50 new state laws that could be and are worse.

    Just food for thought from someone has been practicing over 25+ years. Thanks again "rmklaw" and Petersachs" for your excellent discussion.
     
  18. lgeist

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    Hi Peter,

    I understand that you're not hear to give legal advice, but perhaps you could shed some light on this question:

    I'm employed as a commercial ATP pilot. If I do something with my "UAV" that the FAA determines is illegal, can they go after my ATP certificate since I'm not exactly exercising my pilot certificate at the time?

    Thanks for any insight.

    LG[/quote]

    Hi Lgeist. You have a great question that I have also been wrestling with. Besides my legal profession, I also have a commercial pilot license. I don't know the "legal answer" to this. personally, I think that the FAA would go after the license and the issue is whether or not they would prevail. If you research FAA enforcement actions over the years, they have used a wide range of theories, including fitness, negligence, recklessness, in addition to clear black and white FAR violations. Hence, it is hard to predict. Having said that, If I was the one prosecuting, I would elect the route that inflicts the most leverage to get a settlement without an administrative proceeding. Sorry, no clear answer.[/quote]

    Thanks, Richard.

    Perhaps if I'm ever confronted I won't announce that I'm a pilot. Who knows, they may never make the connection!

    LG
     
  19. petersachs

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    In my opinion, states statutes and local ordinance would be subject to a preemption challenge. Even though it is my position that there are no regulations regarding remote-controlled model aircraft at this time, that's not to say there won't be in the future. And it's clear (in my opinion) that the federal government intended to occupy the entire regulatory field and has exclusive sovereignty over US airspace.
     
  20. Butcher99

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    Peter, while I appreciate both your passion and line of reasoning, the scope of the FAA's regulatory and enforcement authority has not been authoritatively determined on this issue. And as both you and Richard point out, its likely that only by going through (multiple) cycles of enforcement action would the question be clarified. As you suggested, I hope you do bait them into enforcement action so that we could have this clarity as soon as possible. The sooner this is cleared up, the sooner my company will be able to begin operating small UAVs on a regular basis. But given the pace of the Trappy's case, I doubt other enforcement actions will be disposed of in a timely manner so its likely to be a long wait.
    Regarding the scope of the FAA's 'rules' governing RC aircraft/UAVs, I have to imagine FAA lawyers have considered the arguments you've laid and don't think they pass muster. I have to think if they had even a little doubt they'd be cautious and just issue a TFR covering the entire country. They certainly did that in the DC area (where I live) following the story of a guy plotting to load an rc plane with C4 and fly it into the White House. That effectively shutdown a number of RC sites in the area and I'm not aware of anyone asserting they exceeded their authority.