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Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Drone/Unmanned
      #387503 - 03/04/14 10:01 PM

There was a discussion in recent weeks in which Scott Dunham mentioned that the FAA seems to be without regulatory authority for some of the regulation that it seeks to apply to drone use.

Here's a web page that fancies itself as busting the myths that the FAA is propagating on this subject as the FAA attempts to bust myths....

http://dronelawjournal.com/busting-the-faas-myth-busting-document/


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Ward Miller POU-NY
Top Gun


Reged: 05/05/04
Posts: 10508
Loc: New York
Drone/Unmanned [Re: Scott Dyer [HPN/NY]]
      #387508 - 03/05/14 06:12 AM

Scott, I'm reminded of David and Goliath. This guys seems to have done his
homework -- and the FAA, not.

My dad was quite a sight to see with the sling shot. Not the forked-type
with rubber hands, but the long string, doubled, with a leather pouch at the
fold and one string end anchored to the wrist. After whirling it over head
several times, he would let go of one end of the string and a small rock
would pop out of the leather, a frightful missile. He could knock a bird off
a tree limb.

I wonder if the FAA can hear the windup whirl of the string over head?


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Rod Madsen (RDU)
AVSIG Member


Reged: 04/29/04
Posts: 881
Loc: RDU, NC
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387511 - 03/05/14 10:05 AM

Quote:

he would let go of one end of the string and a small rock
would pop out of the leather, a frightful missile.



I can barely imagine the skill and practice that would require. Do you know anybody who can do it now?

--------------------
Rod


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Ward Miller POU-NY
Top Gun


Reged: 05/05/04
Posts: 10508
Loc: New York
Drone/Unmanned [Re: Rod Madsen (RDU)]
      #387512 - 03/05/14 10:36 AM

>> I can barely imagine the skill and practice that would require. Do you
know anybody who can do it now? <<

Rod, I've never known anyone other than my dad who could do it -- except
David, of course.

I'm sure it took many hours to perfect that skill, but back on the farm in
the late 1800's, what else did they have for entertainment? No books, no TV,
no electronic games, no tennis, no skating, no hot rods.


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Ralph Jones
Top Gun


Reged: 08/31/01
Posts: 21214
Loc: 4CO2
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387513 - 03/05/14 10:53 AM

Quote:

I'm sure it took many hours to perfect that skill, but back on the farm in the late 1800's, what else did they have for entertainment?



Exactly. If you were a shepherd, like David, you'd spend endless hours chasing off predators with a sling.

The sling was Everyman's weapon for millennia, and there were whole armies of slingers. It could deliver more range than any bow until the English longbow came along in the Middle Ages.

--------------------
Ralph Jones
LS-4a N49LS 6R


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Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387524 - 03/05/14 02:18 PM

Very impressive, Ward.

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Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Drone/Unmanned [Re: Scott Dyer [HPN/NY]]
      #387526 - 03/05/14 02:23 PM

The most interesting part of this is just how low does the FAA's authority to regulate go? And just who does have authority "from the grass blades" up to the FAA's authority?

I think that's going to take a federal court or congress to answer.


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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Russell Holton]
      #387528 - 03/05/14 03:23 PM

I suspect "grass up" is supportable. Otherwise you end up with absurd results like not being able to file careless or reckless operation if a pilot's residential buzz job is low enough.

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Ward Miller POU-NY
Top Gun


Reged: 05/05/04
Posts: 10508
Loc: New York
Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387534 - 03/05/14 04:25 PM

>> I suspect "grass up" is supportable. <<

Scott, I've looked and can't find that. Can you point me to the reference?
I know it makes sense, but just where is it specifically stated?

That is the whole point of Peter Sach's article. The FAA is making a bunch
of grandiose claims, but has not support them with reference to specific
laws, regulations, case law, etc.


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Ralph Jones
Top Gun


Reged: 08/31/01
Posts: 21214
Loc: 4CO2
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387535 - 03/05/14 05:01 PM

Might have to read through the many iterations of the Air Commerce Act: that's the ultimate source of authority for the FAA.

--------------------
Ralph Jones
LS-4a N49LS 6R


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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387537 - 03/05/14 06:14 PM

It's not explicit except as an inference from the general authority granted to the agency. The drone-myth-buster page tries to apply "navigable airspace" as the limiting factor, but as noted I don't think anyone would argue that Congress intended to set some lower altitude limit below which a free-for-all condition exists. If you're going to countenance that argument for drones, you pretty much have to countenance it for any aircraft - but I suspect the public tolerance for C172s flying 25 agl down residential streets would be rather low.

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Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387538 - 03/05/14 06:43 PM

Quote:

The drone-myth-buster page tries to apply "navigable airspace" as the limiting factor, but as noted I don't think anyone would argue that Congress intended to set some lower altitude limit below which a free-for-all condition exists. If you're going to countenance that argument for drones, you pretty much have to countenance it for any aircraft - but I suspect the public tolerance for C172s flying 25 agl down residential streets would be rather low.




I think it can be argued that congress never intended to give FAA authority over baseballs, flying squirrels, paper airplanes, or wired controlled model planes. Why else would they insert the word "navigable"?

As for the C172, there are probably other areas where it can assert authority - namely the pilots' license and/or when it does transit airspace it does control. But I suppose if you really want to get picky - if the C172 can successfully fly 25 agl down a street, it must be navigable airspace. <g>

But I suppose the real question is "navigable" by what? A C172 would have a hard time with 5 agl in the backyard of a two-story house. But that works perfectly fine for a hobby quadcopter. Now for the real fun - who has authority to cite someone flying a quadcopter into someone else's yard? It's not touching the ground, so is it trespass? Does the FAA regulate something that's 10' below the roof-line of the adjacent building? Or is that local government, since they frequently set height limits for structures?

I think there's a pretty large legal gray zone that simply hasn't been an issue until now.


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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Russell Holton]
      #387539 - 03/05/14 07:09 PM

If you want to get a headache, read about navigable waterways.

I don't completely buy all the arguments made by the "Free the Drones!" side, but I do think the FAA's got some serious 'splainin to do. To my mind, they have not justified their positions in any kind of enforceable way.

I don't see how they take certificate action against a pilot for something done in airspace the FAA has no authority over. What, exactly, would be the violation? I don't see any logical way to vertically demarcate FAA jurisdiction (see "absurd results" above...) so I suspect at the end of the arguments they'd be regulating flying machines of whatever type. Establishing suitable regulations that make sense is, of course, the rub...


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Ralph Jones
Top Gun


Reged: 08/31/01
Posts: 21214
Loc: 4CO2
Re: Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387541 - 03/05/14 07:25 PM

Quote:

If you want to get a headache, read about navigable waterways.



Especially as applied to riverboat casinos...

--------------------
Ralph Jones
LS-4a N49LS 6R


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Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387544 - 03/05/14 08:54 PM

Quote:

Establishing suitable regulations that make sense is, of course, the rub...




And by in large, I think the FAA is the best agency to deal with it at some level. Not unless we're going to create a new layer for local government to regulate. But sooner or later, someone is likely to take a crack at the FAA's legal right to regulate. So "Navigable Airways" is going to require some legal clarification. Be it by Congress or court.

But I'd think something flying along at 3' agl, or peeking in a second story window should be subject to the property owner's permission as well.


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Ward Miller POU-NY
Top Gun


Reged: 05/05/04
Posts: 10508
Loc: New York
Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387546 - 03/05/14 10:19 PM

>> It's not explicit except as an inference from the general authority
granted to the agency. <<

Well, I'll bow to the lawyers to figure out how to apply that to the real
situations.


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Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Drone/Unmanned [Re: Ward Miller POU-NY]
      #387597 - 03/07/14 04:35 AM

Well, it's happened:

WSJ: Judge Says FAA Lacks Clear Authority on Commercial Drones

Quote:

Administrative law judge Patrick Geraghty struck down the fine, ruling in part that the FAA's de facto ban on commercial use of drones, based on a 2007 policy statement, "cannot be considered as establishing a rule or enforceable regulation." He determined that "policy statements are not binding on the general public."




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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Russell Holton]
      #387600 - 03/07/14 07:59 AM

The ALJ made short work of the FAA's case against the model airplane operator. It's always a bad sign when a judge uses the term "risible" while discussing your argument...

The Reader's Digest version of the decision is that the FAA has always treated model aircraft differently than "real" aircraft, so they can't suddenly reclassify them as "UAS" (whatever that means, having never been defined in a regulation) and start trying to violate the operators under "real" airplane regulations. Policy statements and ACs cannot be a substitute for actual regulatory activity.


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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Scott Dyer [HPN/NY]]
      #387601 - 03/07/14 08:08 AM

Suppose the FAA will be removing their busted myth-busting link from their home page soon?

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Rick Cremer
AVSIG Member


Reged: 05/30/04
Posts: 176
Loc: KSRQ
Re: Drone/Unmanned [Re: Russell Holton]
      #387705 - 03/08/14 05:19 PM

Quote:

The most interesting part of this is just how low does the FAA's authority to regulate go?




From the surface up. See Title 49 United States Code Section 40103(a)(1)(Sovereignty and use of airspace).

(a) Sovereignty and Public Right of Transit.-
(1) The United States Government has exclusive sovereignty of airspace of the United States.

That law doesn't specify height above the ground, any particular class of airspace, etc.

14 CFR 91.119(c) is a case in point.

91.119 Minimum safe altitudes: General.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

Think you can fly in "uncontrolled" (e.g. Class G) airspace and buzz your friends house in a sparsely populated area of the country at an altitude of 100 feet and not be in violation of 91.119. Think again. 91.119 applies all the time everywhere right down to the surface. It is not airspace class specific.

Another example is the SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE as defined in Part 77. Want to build a 100 foot tower near an airport. The FAA regulates that too.

In some cases the FAA has winked and nodded and given certain folks a pass on operating in U.S. airspace. For example the FAA has, in the past, given model aircraft operators guidance, in the form of a non-regulatory AC, which permits them to operate their models in airspace below 400 feet, away from airports, and not for hire. But they are still subject to Federal (FAA) regulation.

Drone operations are another matter and the FAA is going to have to regulate those operations in some fashion. Much like the FAA had to regulate space operations under 14 CFR Chapter III a few years ago.

But the bottom line is that until the Congress or the courts rule otherwise the FAA has control of all airspace in the U.S. From the ground up.

Best


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Rick Cremer
AVSIG Member


Reged: 05/30/04
Posts: 176
Loc: KSRQ
Re: Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387706 - 03/08/14 05:20 PM

Quote:

Suppose the FAA will be removing their busted myth-busting link from their home page soon?




My guess is no.

Best


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Scott Dunham (RDU)
Top Gun


Reged: 04/29/04
Posts: 6470
Loc: Chapel Hill, NC
Re: Drone/Unmanned [Re: Rick Cremer]
      #387708 - 03/08/14 05:33 PM

>> But they are still subject to Federal (FAA) regulation.

Well, they might be depending on the outcome of a heretofore non-existent rulemaking process - but the ALJ's observation was that they're not subject to regulation until appropriate regulations exist, and that doesn't happen with either an AC or a "policy statement." Essentially, I think his view seemed to be that if the FAA wants to regulate, regulate away - but do it right, don't just make unenforceable assertions.


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Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Re: Drone/Unmanned [Re: Scott Dunham (RDU)]
      #387721 - 03/08/14 09:30 PM

Scott -- FAA.GOV says that the agency has filed a notice of appeal (they'd like to lose at the NTSB level, I guess).

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Reams Goodloe
Top Gun


Reged: 05/07/04
Posts: 2582
Loc: Kent, Washington
Re: Drone/Unmanned [Re: Scott Dyer [HPN/NY]]
      #387771 - 03/09/14 06:08 PM

>>the agency has filed a notice of appeal<<

Your tax dollars NOT at work on both sides of that...

The ALJ's decision pointed out rather clearly the deficiencies of their argument, given the statutory language and the agency's own past practices in interpreting the language of their own regs....

More importantly, have they filed a NPRM - Notice of Proposed Rulemaking ???

- Reams -


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Paul Millner [OAK]
Top Gun


Reged: 01/12/03
Posts: 675
Loc: Oakland CA
Re: Drone/Unmanned [Re: Rick Cremer]
      #387814 - 03/10/14 04:32 PM

>> Another example is the SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE as defined in Part 77. Want to build a 100 foot tower near an airport. The FAA regulates that too.

Hi Rick,

I thought the FAA mighty make a finding of threat to air safety, but the actual regulating came from whomever the competent building authority might be?

If the locals are indolent, what power does the FAA have to stop a building at the end of the runway?

Paul


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Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Re: Drone/Unmanned [Re: Paul Millner [OAK]]
      #387815 - 03/10/14 05:14 PM

Paul -- Move away from the airport environment and the situation becomes clearer as to the FAA's lack of regulations covering from the dirt up: Cell towers can generally be built up to 200' AGL with no FAA approval or required comment. FAA doesn't even know where they all are.

This poses a practical problem with IFR MVA requirements. We're losing a cardinal altitude of 2,000' in northern NJ due to the new "assumed obstacle" rules, as there may be towers up to 200' AGL on ridge lines, and that 200' makes all the difference to MVA setting. This compresses traffic and is causing some headaches as it starts to be implemented (going higher isn't an option due to EWR/TEB inbounds).

Some localities are agreeing voluntarily to let FAA know about current or new towers but otherwise....it isn't picked up in the current regulatory environment.


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Reams Goodloe
Top Gun


Reged: 05/07/04
Posts: 2582
Loc: Kent, Washington
Re: Drone/Unmanned [Re: Scott Dyer [HPN/NY]]
      #387830 - 03/10/14 08:18 PM

Scott -

Some interesting photos of mid-air and near mid-air collisions between aircraft and drones, here:

http://cryptome.org/2014/03/drone-journalism.pdf

- Reams -


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Russell Holton
AVSIG Member


Reged: 07/07/05
Posts: 14136
Re: Drone/Unmanned [Re: Reams Goodloe]
      #387831 - 03/10/14 09:15 PM

Quote:

http://cryptome.org/2014/03/drone-journalism.pdf




Looks like quite a write-up. And hopefully deals with the different issues between an automated flying object and a glorified R/C toy.


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Scott Dyer [HPN/NY]
Top Gun


Reged: 01/11/03
Posts: 20065
Re: Drone/Unmanned [Re: Reams Goodloe]
      #387832 - 03/10/14 09:37 PM

Thanks, Reams. Instead of shooting chickens into turbofans, they'll have to shoot drones now.

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