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FAAs Policy Against Flying Commercial UAVs May Not Be Enforceable Law

Published: 25/09/2013
By: larry

For some time I've heard claims that the Policy of the FAA regarding Flying Commercial UAVs has legal issues. But recently I discovered a quote on rcgroups.com that give this claim a considerably more weight. Here is the quote:

I'm a lawyer and in a position to clear up a couple of things, for educational purposes.

1. The FAA is indeed pursuing a $10,000 assessment (fine) against Trappy of Team Blacksheep. This is public knowledge. See the current issue of California Lawyer magazine where it is discussed.  Many of the legal issues being discussed here are likely to be litigated. I have been retained by Trappy to defend the case.

2. Just because the FAA says something is "policy" does not make it an enforceable law. The FAA is merely a federal regulatory agency. They cannot just make up law as they go -- they have to conduct a rulemaking process pursuant to the Administrative Procedures Act. And they have NOT done that for model airplanes. The 1981 advisory circular AC 91-57 is purely voluntary. The proposed regulations on unmanned aircraft (due in 2015) have not even been released for public comment. As a result, there are NO regulations prohibiting the flying of radio-control model airplanes for commercial purposes. You can find documents in which the FAA says commercial UAS flight is not allowed, including the one patrick egan and CenTexFlyer posted above. However, these kinds of "policy" documents are not actual regulations. Notice that the document Patrick and CenTex posted specifically says "This notice is subject to continuous review, will be updated when appropriate, is not meant as a substitute for any regulatory process." (Paragraph 6)

The lawyer that made the comments above is apparently, Brendan Schulman, A commercial litigator at  the New York law firm, Kramer Levin Naftalis & Frankel LLP. Brendan is also a 20 year R/C model aircraft hobbyist and active UAV builder and pilot.

Both Brendan and Trappy (Raphael Pirker) of Team Blacksheep (the defendant in this case) are going to be a speakers at the Drones & Aerial Robotics Conference (DARC) taking place in New York City October 11-13. The essence of this case is that Brendan and Raphael are claiming that there are currently no valid regulations against flying commercial UAVs and only the process that the FAA is currently involved in (planned to complete in 2015) will create enforceable law.

I'm going to do my best to follow The Trappy of Team Blacksheep vs FAA case because I expect this case could well set a legal precedence as to whether the current FAA policy restricting commercial UAVs is enforceable law. If Brendan and Trappy win their case against the FAA this would be a huge impact for anyone flying UAVs for real estate photography/videography. Stay tuned!

10 comments on “FAAs Policy Against Flying Commercial UAVs May Not Be Enforceable Law”

  1. 99% of what our federal government does is unconstitutional. They have no jurisdiction within a state, only commerce between states and within the 10 sq mi box of Washington, D.C. Any state could assert their 10th Amendment right here and nullify this within their state.

  2. the FAA is simply the tip of the finger of the beast which runs all the way back up the arm, across the shoulder and into the brain of the Government - unconstitutional or not - if Washington doesn't want the skies cluttered with drones it will send a message back down the arm to the FAA allowing them to flick each and every drone from the sky.

    Drones flying over military bases, government buildings etc - there is no way they will stand for it !

    truth being the Government doesn't want to share the space with the drones they will be firing up in the skies keeping an eye on the populace - watch Elysium to know the future

  3. I think there was an entire war fought over that "States Rights - internal commerce" issue. We all know how that turned out.

    Take it a step further, money talks. Say the States did override the FAA. How fast do you think transportation dollars would dry up for the States.

  4. This is aviation related. The FAA governs the airspace over the US. Do you think they don't have any clout?

    To think the FAA won't enforce their regs is ludicrous!

    Just ask any pilot....not an rc pilot.

  5. @Steve - Frankly on this subject I believe almost no one. There is so much hysteria, crazy talk and miss information you can't believe anything you hear about... from pilots, R/C hobbyists or the FAA. But I'm more inclined to believe a Harvard educated experienced commercial litigator from a big name New York law firm (Brendan Schulman) than anyone. The claim is that the FAA didn't follow the standard process for establishing these current regulations that apply to low altitudes. As far as I see this has little or nothing to do with standard aviation regulations that have been in place for over 100 years. It will be decided in court.

  6. Whether the FAA is overstepping their authority or not, if you are issued a citation from them, you have to defend yourself. I am entirely sure that I don't want to try and foot the legal bill to see if they do or don't have the authority. From my experience in sub-orbital rockets, states can limit or prohibit aerial activities over certain areas for safety or security reasons. The states cannot sanction aerial activities that are limited or prohibited by the federal government. There are a few dozen companies that are lobbying to get airspace for the testing of UAVs (real stuff, not hobby) since it takes a military contract to use military airspace where such activities take place now.

    It's best not to get a $10,000 ticket from the FAA that you might spend $20,000 trying to get overturned and wind up having to take a $30,000 loan against your house to pay both. Commercial use of UAV's will be legal before too long except for getting right in the faces of a couple getting married.

    The Global Hawk has to be escorted to and from commercial air traffic, instrument flight lanes through "Visual Flight Rules" (VFR) airspace on their way up and down by a human piloted airplane. VFR requires pilots to "see and avoid" other VFR aircraft, something that a UAV can't do. Obviously, the US government doesn't mind breaking any flight rules over the countries they are spying on.

  7. @Ken - Well sure, that's exactly why every commercial UAV operator in the US with a lick of sense is keeping a very low profile. There's no one saying, go out and ignore the FAA. Trappy (the defendant in this case) is doing that because he's a wild and crazy UAV activist. He's not even a US citizen, I think he lives in Hong Kong. He's doing this same thing apparently in several countries.

    The whole point is just that there's a chance that the FAA will have to back down on the commercial UAV thing. It's also possible that this case will take as long to settle as it will take the FAA to go through the complete regulation creation process. If I were representing the FAA in this case, I'd be stalling.

  8. The FAA can work pretty fast when they want to provided the government doesn't go on holiday. I worked quite a bit with the FAA-AST office on commercial space flight and it was a very positive experience. All of the FAA staff was very knowledgeable and professional. The difference with UAV's is there aren't the prominent companies working with them as there are in the new-space arena. If one of the national Real Estate sales chains had an in-house staff with experience, the FAA could use them to help draft the regulations. As it is, the FAA will have to do all of the leg work and not many of the staff are going to have first hand practical experience with various small UAV craft. I'll have to call on some of my contacts and see if they can point me to the FAA office working on this.

  9. My company is in the UAV business and having dealt with numerous other companies and clients I have heard many instances where the FAA has poised themselves against a few of them only to back off when lawyers started quoting law. It reminds me of when I was a Sheriff Deputy and we were writing tickets on an un-incorporated highway BEFORE the legalities were final. The result was 1,000+ speeding tickets dismissed. As the Lawyers state, the original circular was just a advisory notice. Then, the FAA began the writing of the new "anticipated laws" governing airspace. It is hard to enforce laws that aren't on the books. Another thing to consider is that they also can't say that their rules apply to UAS as UAS wasn't of issue when the NAS rules were made. Regardless, they still quote rules that aren't there yet as we all know and have been waiting for. I once requested a TPR under the section that applies to special airshows etc and I was told it can't be done for UAV's. I advised them that it actually has no exclusions for UAV on paper anywhere so technically it could involve UAS and that the adviser was speculating this. Did I push it? No, I didn't need the future hassles of having made someone unlikely to support us in the future. As the lawyer states, this may be the proof many companies are waiting for so we can all know what the truth of the matter is.

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