NTSB: UAS And Model Aircraft Are Aircraft

[jnmeade]

http://www.ntsb.gov/legal/pirker/5730.pdf

The NTSB has reversed the decision by Geraghty to vacate the FAA fine of Pirker in the U VA case.

NTSB discusses at length what constitutes an "aircraft" and determines as quoted below. This means don't fly your paper airplane at a NFL football game.

"C. Conclusion
This case calls upon us to ascertain a clear, reasonable definition of “aircraft” for
purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must
look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14
C.F.R. § 1.1: an “aircraft” is any “device” “used for flight in the air.” This definition includes
any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless
operation in § 91.13(a) applies with respect to the operation of any “aircraft” other than those
subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to
determine whether respondent operated the aircraft “in a careless or reckless manner so as to
endanger the life or property of another,” contrary to § 91.13(a)."

 

[Jim Logajan]

By statute the FAA only has authority over navigable airspace. I've posted before on what the Supreme Court found this to be - pretty much coincides with the distance aircraft are supposed to stay from populated areas (500 ft alt. seemed to be the common number.) It doesn't matter what the definition of aircraft is, if the FAA has, by its own regulations and definitions, limited its scope.

If there were no limits on the FAA's authority then they could claim jurisdiction over flying UAVs in your living room -even if your mom said it was OK.

 

[Jim Logajan]

http://www.ntsb.gov/legal/pirker/5730.pdf

The NTSB has reversed the decision by Geraghty to vacate the FAA fine of Pirker in the U VA case.

NTSB discusses at length what constitutes an "aircraft" and determines as quoted below. This means don't fly your paper airplane at a NFL football game.

It means more than that - it means that all of Title 49 statute applies to any and everything that you make that is intended to fly in the air. They must get an N number, even for your lowly paper airplane.

 

[Jim Logajan]

So you're saying that buzzing isn't illegal, because the FAA doesn't have jurisdiction over the airspace?

If you can manage to stay within the bounds of your property and never exceed 500 ft, then why should it be any more illegal than, or a hazard to the public, for example, to race private vehicles on private property?

Doesn't B/C/D/E/G go to the surface? I know G is uncontrolled, but still falls under FAA purview, doesn't it?

(Don't know about living room airspace.)

What's considered "navigable"? Your post mentioned 500ft, but that could still be controlled airspace?

I'll need to locate the post I made that had all the appropriate court references and post a followup on that. Title 49 does not define classes of airspace, that is a regulatory invention of the FAA, so it would be a mistake to think in terms of those. Title 49 defines the scope of the FAA's authority and contains the pertinent definition of navigable airspace. Title 49 says the Federal government, not local governments, shall have authority over all airspace. It then says that authority over navigable airspace shall be delegated to the FAA.

The FAA can and does have the authority to deny access to navigable airspace, so it could act against someone who entered and then exited that airspace in a manner not approved because it is considered unsafe (i.e. dropping below 500 ft to buzz something.) But if you were just moving about your own yard on your hovercraft, never flying more than a foot off the ground, the FAA would not seem to have any case to claim you were a hazard to aircraft in navigable airspace, don't you think?

 

[Jim Logajan]

I'll need to locate the post I made that had all the appropriate court references and post a followup on that.

The post in question with references to limits of navigable airspace:

http://www.pilotsofamerica.com/forum/showpost.php?p=1378618&postcount=48

And a post referencing what I believe are the appropriate portions of Title 49 and the FAA regulations:

http://www.pilotsofamerica.com/forum/showpost.php?p=1377396&postcount=40

My own opinion based on the principles outlined by the courts was that, since the courts had found that owners of land have an unfettered access to the superadjacent non-navigable airspace, they should be compensated when anyone impedes their access and use of that airspace, and therefore based on the fate of similar regulations, any regulations prohibiting flying of aircraft in such space would be the taking of private property without compensation. This is not allowed by the constitution.

 

[Jim Logajan]

But who has jurisdiction over the aircraft that impedes the landowner's access and use of airspace? The FAA.

Title 49 states "The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace." "Navigable airspace" ... "means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft."

Depending on the nature of the incursion, such aircraft in non-navigable airspace would be engaging in either civil or criminal trespass and it would be up to the owner to seek redress in the courts or seek police help.

 

[Jim Logajan]

I don't see where that takes the unnavigable airspace out of the FAA's complete jurisdiction, just that where it is navigable, the FAA must meet those burdens. Just because the FAA doesn't need to meet those burdens outside navigable airspace does not impeded them from being assigned other burdens like dealing with irresponsible people operating new airborn technology.

I think my read of the law is reasonable - it does depend on an appropriate case (i.e. not the case in the OP) and what arguments the court is presented with. The courts can be pretty good about setting hard limits on the jurisdiction of an agency. For example, recently the Supreme Court ruled the EPA had overstepped the authority delegated to it when it attempted to include vehicle green house emissions under the laws written for fixed sources. As in the case of the OP, the courts are pretty literal when interpreting unambiguous statutes.

We have out populated our ability to have hazardous fun without considering who else we may injure in the process. Unless you live out in the country, population densities are such that it just isn't viable anymore.

That's interesting, but "hazardous fun" is already covered by non-FAA laws. If the guy had driven a RC car (instead of flying a UAV) all over the place (say in a public park, or maybe on someone else's property) that caused people to dive out of its way, among other dangerous stunts, what laws do you think would apply? You think just the local DMV would or should be involved? You think no other local laws would cover such situations?

 

[Jim Logajan]

The difference here is that the NTSB just had the courts put it into the hands of the FAA in the interest of public safety citing a case where demonstrable and egregious violations of safety endangered a crowd of people at a public event.

Not what I read in the case; they remanded due to the use of the word "aircraft," not over careless or reckless. The defendant didn't attempt any argument on the issue of airspace jurisdiction; but the courts would have to consider such an argument if it is ever presented.

 

[Jim Logajan]

Not what I read in the case; they remanded due to the use of the word "aircraft," not over careless or reckless. The defendant didn't attempt any argument on the issue of airspace jurisdiction; but the courts would have to consider such an argument if it is ever presented.

Well it looks like my argument re navigable airspace, including the Causby case, had already been worked out and argued by Pirker's attorney, Brendan Schulman of the Kramer Levin law firm:

http://www.kramerlevin.com/files/upload/PirkerReply.pdf
http://www.paas2014.com/Brendan_Schulman.pdf

Since the ALJ never got past the consideration of whether a UAV is an aircraft, none of the other arguments appear to have been considered the first time through. I imagine they will now.

 

[Jim Logajan]

What I find is funny is that people are supporting the right of the guy to be able to injure people and saying boo hiss here when the punishment is a fine, yet when someone similar gets 14yrs in prison for shining lasers at airplanes, we cheer that.

Where do you see posts supporting the right to injure other people?

Do you consider any of my posts in that category?

 

[Jim Logajan]

I don't recall any of your posts specifically, but it is the reality of supporting the guy against being prosecuted.

I see. I don't know how to put this diplomatically, but it is clear to me you misunderstand the issue, which is about scope of authority and the FAA's over-reach.

 

[Jim Logajan]

You misunderstand the issue, this about assigning the regulatory authority for a new and popular way for stupid people to hurt other people, an activity which we have tasked the government with controlling in general. So, the question becomes, "Who is assigned that responsibility?" Obviously someone called in the FAA, because I seriously doubt that it was someone from the FAA that took the initiative policing this guy. The originating authority couldn't see where they had jurisdiction since everything flying and related to flying is under the jurisdiction of the FAA, so they took it and applied the rules they saw fit, which appropriately enough was Careless and Reckless operation considering his altitude/airspace incursion and erratic operation within a proximity of people is such a way to threaten their safety. Since this is a recently developed phenomenon and law is reactive to action, there was no relevant finding in law that supported the craft being an "aircraft". The judge kicked it back to the governing authority, in this case the NTSB court, to get a ruling in law that establishes or denies the FAA's jurisdiction which they settled in a finding that the FAA does indeed have jurisdiction. Now the matter is back in the judges hands with that matter of law clarified.

The FAA has not been "reaching" the FAA is being shuffled around in a pawn while trying to fulfill its previously assigned roll, to keep things in the air operating safely. Every action by a government agency is not a power or money grab, sometimes they are just doing their job like they're supposed to.

It is clear that you haven't bothered to concern yourself with the actual claims:

"His FAA legal troubles began when he was on the job for the public relations firm Lewis Communications in 2011. His assignment: Capture images over the University of Virginia. The resulting video takes viewers on a wild ride, and the FAA’s citation says that it amounts to a series of violations — flying too low over vehicles, buildings, people, streets and structures, and even aiming the craft at a person.

That was his spotter, Pirker says."
http://www.wired.com/2013/10/drones-at-a-crossroads/

So the "threatened" person was his spotter, who would not have called anyone - likely some clueless bystander made that claim. He was flying his drone on behalf of a company working on behalf of the property owner. The FAA HAS been claiming jurisdiction over the airspace in people's living rooms - go read their claims.

Laws of treapass and all the usual laws of liability would have covered any civil or criminal activity just fine without the FAA's intervention.