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FAA Sued over drone registration

Discussion in 'Rules and Regulations' started by Drestin Black, Oct 3, 2016.

  1. Drestin Black

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    Here it is as filed: http://www.wolfenstock.com/TaylorvFAA/TaylorFAABrief.pdf

    Basically, you can't treat us as both hobbyist "toys" and the same as a 747 jet airline and pilot in terms of rules and punishment, etc. I've been saying as much and agree with the sentiment. Rules for drones? Sure. Clumping us in with full scale planes and full pilots? Nonsense. Time to stop this before someone gets prosecuted and seriously affected.

    Fund raising page if you agree and would like to help:
    Drone Legal Fund - About
     
    MarteSystems and Sky Architect like this.
  2. Drestin Black

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    (copy/paste from above PDF, sorry for lack of proper formatting):

    PETITIONER’S SUMMARY OF ARGUMENT
    For over a century, the FAA and its predecessors recognized recreational model aircraft as something entirely separate and apart from civil aircraft. The FAA realized it had no authority over these toys and encouraged only “voluntary compliance” with safety guidelines that largely sought to keep recreational model aircraft out of the navigable airspace properly controlled by the FAA.
    The FAA’s distinction between civil aircraft and recreational model aircraft was adopted and codified by Congress in 2012. Pub. L. 112-95 mandated FAA control over some small unmanned devices that were being operated commercially (which the FAA had categorized as “civil aircraft” since 2007) in §§ 332-33, while prohibiting FAA regulation of model aircraft that were operated recreationally and met certain safety-related criteria in § 336(a).
    Despite this clear statutory prohibition, on December 16, 2015 the FAA issued the Interim Final Rule, requiring the registration of all but a few types of recreational model aircraft.
    In addition to being a violation of the statute, the creation of the registry otherwise lacked statutory authority. The FAA acted under the specious theory that recreational model aircraft had suddenly become “aircraft” and must be registered under a previously unused statutory mandate dating back to 1926. The FAA’s USCA Case #15-1495 Document #1619133 Filed: 06/14/2016 Page 23 of 88
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    broad new interpretation of the definition of “aircraft” would similarly make Frisbees, paper airplanes, and other small flying toys subject to the myriad statutes and regulations applicable to “aircraft.” Further, the FAA created an unauthorized registry, not truly of devices, but of people, and mandated, without authority, that owners commit to specific intended flying practices as a condition of registration.
    In a reactionary rush to do something, however ineffectual, in response to unreasonable fears of “drones,” the FAA not only violated statutory prohibitions and bypassed the Administrative Procedure Act, but shoe-horned all flying toys into the body of aviation regulation in a manner that renders the regulation, and the process it creates, arbitrary and capricious. The FAA applies a body of law, designed for real aircraft, to toys, in a way that results in an absurd regulatory scheme that defies compliance.
    In adopting the Interim Final Rule, the FAA failed to follow the notice and comment requirements of the Administrative Procedure Act. The FAA claimed it had “good cause” to ignore these requirements, under the theory that it would be impracticable and contrary to public interest to do so. However, there was no impracticality, nor imminent threat to life or property, to justify bypassing that statutory requirement, and any timing concerns were of the FAA’s making. USCA Case #15-1495 Document #1619133 Filed: 06/14/2016 Page 24 of 88
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    Within days of Petitioner’s filing of Case No. 15-1495, the FAA declared the entire Washington, D.C. metropolitan area, and beyond, to be a “no drone zone” - suddenly applying a 2008 regulation intended to ensure communication with aircraft and facilitate protection against an aircraft attack on the nation’s capital.
    In doing so the FAA again: 1) violated § 336(a); 2) prohibited activity outside of its statutory authority; 3) acted arbitrarily and capriciously; and 4) violated the notice and comment requirements of the Administrative Procedure Act.
     
  3. kenundrum

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    I just finished reading the brief. It is a very well reasoned and documented argument. It would be hard to argue with the points stated except by eroding the credibility of the supporting documents- many of which are FAA statements and publications themselves. The argument does appear to come dangerously close to two conclusions that may be more detrimental to the greater good if the case is won.
    First it appears to want to make a distinction between recreational "toys" (as defined by the brief- not me) and commercial UAS "aircraft" purely by the intent of the operator. This makes for a gray area for outside parties. I know that this is pretty much how things are set up now, but it's trying to take it further. The argument is that recreational UAS should be subject to no regulation/registration, etc, but that commercial UAS are OK to be regulated. This would mean that two otherwise identical UAS operating in the same area would be subject to completely different rules and penalties simply based on intent. That's not a good place to be. It's almost like saying that simply because my car is used recreationally, i don't have to get it registered or safety inspected or insured, but your identical car used to courier documents around town does. I know that currently such distinctions do exist for cars that operate exclusively on private property or "off road", but such a distinction is not suggested by the claimant.
    Second- they refer to airspace below 500 feet as "private" airspace not subject to regulation by the FAA as an argument against the DC SFRA. Yes technically the SFRA and FRZ don't make mention of altitudes and as pointed out by the brief, they do technically make flying of any kind in someone's backyard illegal. The argument that the airspace belongs to the landowner is a slippery slope for obvious reasons. Hilariously (or not) someone could see a UAS go into their "private" airspace, take it down (with a firearm or other means) and then find out that it wasn't one of those recreational ones, but a commercial one that was a "real aircraft" and now he's subject to various federal charges.
    I'm one who doesn't believe the devices we operate are "toys", but it is getting annoying that they are being handled as real aircraft when it's something the operator needs to do, but as toys when it's something the authorities need to do (like investigate/prosecute people who shoot at them)
     
  4. kennedye

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    The DC FRZ will never be repealed by legislation. The executive branch would just issue an executive order declaring it off-limits for the sake of national security and no sane member of Congress would challenge it. Besides, it's also in the hands of the manufacturers who choose to add it as a built-in DMZ.

    Personally I would love to fly my Phantom up and down the Mall, to the point where I'd be willing to have a Secret Service member standing next to me ready to grab the controller if I do anything squirrely. Kind of guessing I won't be able to get a waiver for that though. :(
     
  5. Drestin Black

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    I don't mind the registration - but the rules ... need to be made more realistic. 400 ft ceiling I get. But, no fly at night? Why? If I can see well enough to fly that's good enough. Worried about something hitting it at night more so than day? It's too small to be seen at day anyway so no difference here. Just an unnecessary restriction.
    VLOS only? Why? If I can control it, why does it matter if I can see it or not, even when it's in VLOS I'm never ever looking at it, I'm looking at my screen.
    Flying over people? Massive huge airplanes and helicopters and hot air balloons do every day and they cause a lot more damage when they crash.
    Maybe mandate you Must have liability insurance to fly over people, that'd be more acceptable.

    90% of all drone videos I've seen violate some drone law or they aren't exciting. Pretty much all litchi missions i've seen go out of VLOS, and, worse, out of controller range! It it's such a popular way to fly the arm chair lawyers never seem to pounce on that.


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