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It's Time to Halt The FAA's Arbitrary and Expanding Threats

Discussion in 'News' started by LuvMyTJ, Apr 13, 2014.

  1. LuvMyTJ

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    News we can all use...

    This week we learned of two new FAA actions against domestic operators of what are popularly called “drones” and what the FAA calls “unmanned aircraft systems” (UAS). In one case, the FAA has claimed that it is illegal for volunteers to use radio controlled model aircraft to search for missing persons. In the other, an agency spokeswoman advised a news outlet against publishing donated video taken by a model aircraft, implying that the agency could take legal action against the news outlet if it published the video.

    With these actions, the FAA has gone too far in attempting to enforce a purported ban on domestic drones. The agency’s overly broad definitions of the devices and uses to be regulated have invited arbitrary enforcement that is not only unwise but, in some cases, infringes core constitutional liberties. The FAA should cease enforcement of its purported ban until it can implement congressionally mandated regulations developed using the required notice and comment rulemaking process.

    Recent FAA actions against search, rescue, and recovery, as well as photography and news gathering, have been enabled by the agency’s overly broad definitions of the devices and uses it has sought to ban. In the case of devices, though most people likely picture something similar to the U.S. military’s Predator when they hear the word “drone,” the FAA definition is so broad as to include what amount to children’s toys. In the most egregious case of attempted enforcement to date, the agency sought to fine Raphael Pirker $10,000 for unsafe operation of an aircraft, in this case a four and a half pound styrofoam model airplane. In dismissing the case, the administrative law judge ruled that the agency’s definition of “aircraft”–which is broadly defined as a “device that is used or intended to be used for flight in the air”–to include model aircraft was “risible” as it implied that the agency could regulate paper airplanes or toy gliders, something that not only defies FAA’s legal authority, but also common sense (PDF of Pirker decision, pp. 2–3 ).

    The FAA appealed the decision and continues to take enforcement action against operators of model aircraft for what it claims are illegal purposes. In one recent example, the FAA is attempting once again to impose up to a $10,000 fine, this time for the use of a model aircraft by the Washington Nationals baseball team to take aerial video of their spring training. A team official echoed the Pirker judge’s sentiments by noting that the team does not seek FAA permission for its pop flies, which fly higher than the model aircraft used for videography, and which would also be considered unmanned “aircraft” under the agency’s laughable definitions.

    Similarly, in the case of uses and users, the agency’s definitions are overly broad and not clearly defined. The agency identifies three categories of use/user: public, civil, and hobby/recreational. Anything that is not public, i.e. government use, is civil, with a special area carved out for hobby and recreational use. Any use that is deemed “commercial” or for “business purposes” is automatically civil and considered illegal unless the operator first obtains specific permission from the FAA. Hobbyists and recreational users operate under a set of voluntary guidelines for model aircraft issued in 1981 (PDF of the 2007 FAA policy statement).

    Though these categories may seem clear on the surface, they are not. First, as the judge in the Pirker case noted (p. 5), “business” purpose is not clearly defined in the FAA’s 2007 policy document purporting to ban such uses. Similarly, neither the voluntary 1981 guidelines for model aircraft, nor the 2007 policy statement, defines what counts as a hobby, recreational, or sport use of model aircraft. The 1981 guidelines for model aircraft also do not prohibit their use for commercial purposes as the FAA claimed in its 2007 policy statement (PDF of the 1981 model aircraft guidelines).

    The impact of these ambiguities is that the meaning of these terms has become arbitrary, and with predictable negative results. They have been applied inconsistently and have resulted in an ever expanding list of supposedly illegal uses of model aircraft. Though its definitions are unclear, some cases seem to fall squarely within the scope of “commercial” or “business purposes.” For example, this was the case when the FAA informed a beer company that using a radio controlled octocopter to deliver beer to ice fisherman violates FAA’s purported ban.

    But in the case of EquuSearch, the group using a model aircraft to aid in search and rescue operations, we see the FAA implicitly carving out a heretofore nonexistent and wholly undefined category of use somewhere between commercial civil use and recreational use. EquuSearch is a volunteer group and, as such, is not using their model aircraft for “commercial” or “business purposes.” So, they have not violated that provision of the FAA’s purported ban. One could, therefore, argue that their use of the model aircraft falls under the hobby/recreational guidelines. That is, their “hobby” is search, rescue, and recovery. But apparently, the FAA does not see it that way because it says this is an illegal use. This implies that there are uses that, though they are not commercial, are also not hobby or recreational. It is not clear where the lines are, however. It was not even clear until news of the EquuSearch case that this invisible category existed, nor that this kind of use is supposedly illegal.

    The EquuSearch case demonstrates that FAA enforcement has become arbitrary and capricious. It is impossible to comply with laws and regulations when they are hidden and unwritten.

    Though the EquuSearch case is disturbing, FAA beliefs and actions in relation to First Amendment-protected activities should also be cause for serious concern. Within the FAA’s broad category of civil use, there is no space carved out for photography or news gathering. In fact, the FAA has been clear that it considers journalism to be a “commercial” activity. As such, though use of a model aircraft for hobby or recreational purposes is considered legal, use of the same device for journalism is specifically prohibited.

    But, here again, we see an expanding scope of what the FAA deems an illegal use. In a trove of FAA cease and desist letters recently released as a result of a FOIA request, we can see that individuals or groups engaged in aerial photography or news gathering have been disproportionately targeted. But one of the more recent letters, sent to Hybird Video LLC of Grandview, Missouri, in June 2013, says, “The use of a Quadcopter UAS for aerial photography is prohibited without proper authorization.” This implies that any use of a model aircraft for aerial photography, even noncommercial, is considered illegal. Even more ominously, the letter warned, “The Grandview and local law enforcement agencies will be notified of this operation” (PDF of letters).

    Finally, in the most recent and most disturbing case, an FAA spokeswoman implied that even publishing drone video footage obtained by someone else is illegal. After a fire in Dayton, Ohio, local hobbyists offered to donate to the Dayton Business Journal video footage of the fire taken with their model aircraft. When the news outlet asked the FAA about the legality of using the footage, an FAA spokeswoman advised the news outlet to “err on the side of caution” and not publish because, the spokeswoman said, “It’s still prohibited in the U.S. to use drones for commercial operations, and if it had to go through the court we would get our lawyers involved.”

    There is good reason to believe that the FAA’s purported ban is not legally enforceable because it did not follow the proper procedures for rulemaking. This was the judge’s decision in the Pirker case (p. 8). The fact that Congress felt the need to instruct the agency to promulgate rules for the integration of UAS into the domestic airspace by 2015 is also an indicator that there are no rules. That is, the FAA was instructed to make rules precisely because there are none now. Finally, even the FAA seems to acknowledge the lack of rules, but, astonishingly, sees this lack of rules as providing it the authority to ban journalists from using a technology that is otherwise legal for hobbyists. In response to a Spokane, Washington journalist’s use of a model aircraft for news gathering, FAA spokesman Les Door said, “we can’t let them [journalists] do it [use model aircraft for news gathering] as long as there are no rules in place.”

    The first, most obvious point to make here is that a lack of rules does not serve as a foundation for banning an activity. In fact, it is just the opposite. The use of a new technology is legal until the government makes it illegal or regulates its use in some way, not the other way around.

    Second, even if the FAA’s purported ban were enforceable, it is likely unconstitutional when applied to photography and news gathering. First, as currently applied, model aircraft are specifically banned for journalists, even though they are legal for hobbyists. This is an unconstitutional content-based restriction on speech because it discriminates on the basis of the speaker’s identity. Second, just because First Amendment activity is undertaken for compensation or commercial purposes does not mean it loses its protection. If it did, newspapers would have no more protections than beer companies, which is not the case. Third, telling a news organization that they should not publish content obtained by someone else is a classic prior restraint on speech and is unconstitutional.

    Congress has given the FAA the authority to promulgate rules for the integration of UAS into the domestic airspace. Indeed, some regulation is certainly sensible as there are foreseeable safety concerns as the number of UASs increases. Nonetheless, the FAA has not yet followed the proper procedures for creating those congressionally mandated regulations and its current attempts to enforce a blanket ban are arbitrary and capricious, stifle humanitarian use of model aircraft, and infringe on core liberties when applied to journalists and others engaged in First Amendment-protected activities with model aircraft. As such, the FAA should suspend enforcement of its 2007 policy statement until it can meet its congressional mandate or at least until the Pirker case is resolved.

    "Attorney Cynthia Love and University of Utah journalism professor Avery Holton assisted in the writing of this post. Love and Holton are my co-authors on a forthcoming working paper for the Mercatus Center at George Mason University titled, “Eyes in the Skies: First Amendment Implications of the Federal Aviation Administration Domestic Drone Ban as Applied to Aerial Photography and News Gathering.”

    SOURCE: http://www.forbes.com/sites/seanlaw...strikes-and-the-lessons-of-nonlinear-science/
     
  2. SilentAV8R

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Dome

    So while everyone is singing Happy Days Are Here Again the FAA continues on its merry way as if the Pirker case never happened. I am very interested in commercial uses of drones, but until the dusts settles I will continue to operate as a hobbyist/model aircraft. I simply do not have the funds to fight the FAA. Those that wish to ignore the FAA do so at their own financial peril. Lawyers do not work for free!!
     
  3. depwraith

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Dome

    Just ignore any correspondence from them and when they try to collect they will be SOL because nothing on the books currently is enforceable. If they doing something illegal in their collection attempts then you would have a whole bunch of lawyers willing to work on the case for violations of your civil rights, lol.
     
  4. SilentAV8R

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Dome

    Great suggestion. Just ignore them and they'll go away!! Why didn't Trappy think of that???
     
  5. depwraith

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    I said ignore them until they take any illegal actions to attempt a monetary collection (try comprehension and just reading sentences).

    What exactly do you think would happen if you ignore the FAA on a violation that doesn't exist or apply to you???
     
  6. SilentAV8R

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Since I am a licensed pilot I know that they will suspend my ticket and that I will end up spending a bunch of money. I also strongly suspect that once the FAA does have rules in place they will use their "naughty or nice" list when it comes time to grant operational permission for commercial operators.
     
  7. mtpisgah

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    wow..! heavy...! far out...! you cant fight the govt. i am from florida, its just like the same thing.. " banned of red snapper and other restriction in the ocean. once they declare it...that's it...., done ! but, for me, for now. i dont want to buy any more stuff that's going to be waste of money ( i already did anyway, lol)
     
  8. neveradayoff

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    I am a volunteer firefighter and first responder. I have to say that if we had a missing child/person I will use what ever aids I have to find them including my P2. I think it is crazy to think that they would want to keep me from doing so.
     
  9. depwraith

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    I have my pilots license and my drivers license...do you think I'll need to get a special license for my rc truck too before they suspend my drivers license for driving that on the roadways? Sound stupid doesn't it? But that's what you're saying...
     
  10. Ozzyguy

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    So then it's a more important time than ever for all the cowboys using theses things to pull their heads in. If the FAA over there need to rewrite the legislation they are going to take into account every stupid thing that has ever been reported or put up on youtube. I urge everyone to fly responsibly or risk very harsh legislation against the use of our aircraft.
     
  11. OI Photography

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Not an apples-apples comparison. Your RC truck doesn't present the same hazard to ground vehicles that UAV's do to regular aircraft. The FAA can and will go after a pilot's license if they are found to be doing anything (not just piloting) deemed unsafe in the air.
     
  12. DrJoe

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    The FAA's treatment of the Equi-Search case is deplorable. But we haven't heard at what altitude they fly and if they maintain line of sight. Do they contact the local flight controllers? Do they fly FPV with no spotter? Those are questions I'd like to know the answers to.

    As of now, your best practice in the United States is to either certify your aircraft and become a licensed commercial UAS (unmanned aircraft system) operator. The process takes about 60 days. I don't know if a Phantom would qualify without a transponder. See the FAA fact sheet about UAS was released in January here:

    http://www.faa.gov/news/fact_sheets/new ... wsId=14153

    Model aircraft guidance circular:
    http://www.faa.gov/documentLibrary/medi ... /91-57.pdf

    I am a licensed pilot as well as a HUGE phantom fan & pilot. Small aircraft (including ultralights without a cockpit) can fly in class G airspace (0-700 feet uncontrolled airspace) regularly, the same airspace we fly our phantoms in. If one of our phantoms gets smacked by a Cessna going 110 knots or an ultralight pilot doing 60 knots, the results could be disastrous and deadly. You will have damaged property and possibly killed someone, along with our awesome hobby. If you don't think a Phantom can hurt a plane, your wrong. I've seen small aircraft brought down by a bird-strike with a seagull.

    I have my firmware set on a maximum altitude of 121 meters (400 feet). If my phantom is ever involved in a collision, the firmware will prove I was within the FAA guidelines. I also maintain LOS (line of sight) at all times. If I am flying FPV, I have a spotter maintaining LOS for me. I stay away from people. I don't loiter over private houses without speaking to the owners beforehand. I don't sell my videos (though I should be able to). Lastly, I try and do no harm.

    The NAZA flight controllers are awesome, but they are not FAA certified and could fail at any time. So are the DJI motors. An out of control Phantom coming down onto a highway and causing a traffic accident or into a crowd of school children is not unimaginable (see all the flyaway videos). Cities are not the place to fly these things. If you do, you are taking a lot of risk; you will be liable for the damage or injuries you cause, and you will have given our hobby a BIG black eye.

    If you want to go higher, I suggest three things to be as safe as possible: a spotter looking for other aircraft, a call to local flight controllers to let them know where and when you will be operating (skydivers do this all the time) and have a transceiver capable of transmitting on UNICOM or MULTICOM (122.700 mHz/ 122.900 MHz) to announce your intentions while you are flying. You can speak to the pilots at your nearest airport and find out what frequency they commonly monitor. I recommend a Yaesu FTA-230 available here: http://www.sportys.com/PilotShop/product/17733

    One day, a really cheap ADS-B transponder will be available, along with a logic board to avoid other aircraft with ADS-B transponders. Until then, you are flying blind and a danger to airmen if you bust 400 feet or go out of LOS. Period. Just because my car can go 170mph, it doesn't mean I drive at 170mph. While my Phantom can reach 2000 feet, it doesn't mean I'll ever fly it that high. Those idiots flying through solid overcast on YouTube are going to kill someone.

    Pay attention to the FAA, and when they announce a notice of proposed rulemaking, make sure you comment on it and let them know how you feel. There will be an open public comment period. Don't ruin this awesome hobby for the rest of us.
     
  13. depwraith

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    People swerve away from squirrels, you don't think they would for a 50mph rc truck?

    Hmmm...could you please post the exact regulation that covers rc aircraft affecting your pilot license?
     
  14. Buk

    Buk

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    DrJoe,
    I appreciate your portion of this discussion. While I agree with the idea of the practice of limiting height via the setup of a Naza, as you said,
    You also mention,
    So although we may limit our height via software, there is no certification of the Phantom nor any of it's components. So not likely that defense "firmware set on maximum" would hold up in a court case.

    Although also as you said,with my translation, a spotter is a key component of safe flight.
     
  15. petersachs

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Dome

    It is a great suggestion because he's 100% correct. Ignore the FAA and they will go away. Legally they are powerless to do anything. The Trappy case was the first (and will be the last) test case. The FAA suffered a scathing loss. They will lose the appeal as well. The media has begun to turn on them to expose the lies they have been touting for the past 7 years. Their credibility and (alleged) control is all but gone.

    Oh, and some lawyers do work for free. :)
     
  16. WeaponsHot

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Thanks for your service, and totally agree. From a former PO, our worst call was baby choking. You would not (not you, you know) believe what our brothers and sisters would do to get there.
     
  17. neveradayoff

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Your welcome, Thank you for your service too! Some of the guys get a little crazy when a child is involved.
     
  18. Surf Island

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    We are in an era of government overreach. Americans should know it is their responsibility to stand up to a tyrannical govt. The enemy is working hard to take away all of our freedoms in America. I believe quadcopter pilots should use personal responsibility and avoid irritating neighbors, etc. Any issues are dealt with on a case by case bases.
     
  19. damoncooper

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Agreed.
     
  20. Buk

    Buk

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    Re: It's Time to Halt The FAA's Arbitrary and Expanding Thre

    Another set of cowboys and girls, ignore the Department of Transportation, even with clearly defined "rules of the road". They drag race on public streets, turn right on red, break noise regulations and a sundry of other violations. Many times events popularized on TV and YouTube.

    The final rules and laws of the FAA will not change cowboys of the air. We cannot expect the current state of non-regulations (or regulations depending on your opinion) to influence cowboys. In my opinion, cowboys will only have a portion of the influence upon the future FAA regulations. The influences will be the actions of cowboys, the vested interests of a consortium of industries and businesses, existing aircraft modeling organizations with established guidelines, a possible lobby of professional pilots and or professional aerial photographers, and input from individuals working at the recently established and authorized testing sites. In my opinion, the FAA is not full of unknowing dolts, they know what is going on, they know what can happen with both in control and out of control unmanned aerial vehicles. The regulations will address both the operator and the operated.

    The FAA will halt arbitrary and expanding threats with an interim set of rules. IMHO