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Busting the FAA’s “Myth Busting” Document

On February 26, 2014, the FAA published on its website a document entitled, “Busting Myths about the FAA and Unmanned Aircraft.” It purports to dispel “common myths,” and provide “corresponding facts.” It does neither. In fact, it’s no more than a rehash of what the FAA has been falsely claiming all along. It again cites no relevant federal statutes, federal regulations or case law to support its claims. Because there aren’t any.

So on that day, at 11:57 AM, @FAANews account tweeted about this newly-posted “myth-busting” document:

And 7 minutes later, at 12:04 PM, I tweeted in reply with my refutation:

Now let’s tear this meaningless document apart, “fact” by “fact.”

Myth #1: The FAA doesn’t control airspace below 400 feet

Fact—The FAA is responsible for the safety of U.S. airspace from the ground up. This misperception may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground

Nonsense. It is clearly established by both statutory and case law that the FAA’s authority over airspace is limited by statute to navigable airspace, which is defined as, “airspace above the minimum altitudes of flight . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” 49 U.S.C. § 40102(a)(32). The “fact” above asserts that the FAA has authority over all “airspace from the ground up,” which would include your backyard— from the tips of the blades of grass, upwards to infinity. Note that the FAA does not (and cannot) cite any federal statutes or regulations, or any case law to support this supposed “fact” because none exist.

If what the FAA is now claiming is true, that would amount to a “taking,” more specifically a regulatory taking by the federal government. And the Fifth Amendment to the U.S. Constitution requires the government to compensate those whose property it takes. So if what the the FAA is claiming is fact, (don’t get your hopes up because it’s not), the United States would owe all U.S. property owners a whole lot of money.

Under the doctrine of cujus est solum ejus usque ad coelum, (“whose is the soil, his it is up to the sky”), property owners used to own all the airspace above their property. As the FAA’s attorneys know, (as well as any law student), in 1946 the U.S. Supreme Court established this as being entirely untrue. In United States v. Causby, 328 U.S. 256 (1946), the Court held that a property owner, “owns at least as much of the space above the ground as he can occupy or use in connection with the land.” With this case, the Court granted all flying craft a giant easement over and through what was formerly considered private airspace, so that all may enjoy the public right of transit.

Myth #2: Commercial UAS flights are OK if I’m over private property and stay below 400 feet.

Fact—The FAA published a Federal Register notice in 2007 that clarified the agency’s policy: You may not fly a UAS for commercial purposes by claiming that you’re operating according to the Model Aircraft guidelines (below 400 feet, 3 miles from an airport, away from populated areas.) Commercial operations are only authorized on a case-by-case basis. A commercial flight requires a certified aircraft, a licensed pilot and operating approval. To date, only one operation has met these criteria, using Insitu’s ScanEagle, and authorization was limited to the Arctic. (http://www.faa.gov/news/updates/?newsId=73981)

The “fact” in this paragraph points to the 2007 “clarification” found in a Federal Register notice of policy. An agency’s policy does not have any force of law. “General statements of policy are statements issued by the agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” (See: Attorney General’s Manual on the Administrative Procedure Act (1947), Note 3.)

Policy statements control only the actions of an agency’s own personnel, not those of the general public. The FAA is free to have its own policy that purports to restrict “commercial operations” in the manner it states above, but that policy does not impose any restrictions upon the general public. Note again that the FAA does not (and cannot) cite any federal statutes or regulations, or any case law to support this supposed “fact” because none exist.

Myth #3: Commercial UAS operations are a “gray area” in FAA regulations.

Fact—There are no shades of gray in FAA regulations. Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval. Private sector (civil) users can obtain an experimental airworthiness certificate to conduct research and development, training and flight demonstrations. Commercial UAS operations are limited and require the operator to have certified aircraft and pilots, as well as operating approval. To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified, and they can only fly in the Arctic. Public entities (federal, state and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA). The FAA reviews and approves UAS operations over densely-populated areas on a case-by-case basis.

Flying model aircraft solely for hobby or recreational reasons doesn’t require FAA approval, but hobbyists must operate according to the agency’s model aircraft guidance, which prohibits operations in populated areas.

This “fact” is in part true. There are no shades of gray. It’s black and white— there exists no statutory or regulatory authority to support the FAA’s claim that civil unmanned operators must obtain approval from the FAA to operate “commercially” by obtaining a Certificate of Waiver or Authorization, (COA). Note yet again that the FAA does not (and cannot) cite any federal statutes or regulations, or any case law to support this supposed “fact” because none exist.

Indeed, the FAA is forbidden from requiring public aircraft to have airworthiness certificates, or to require that their operators be certified, which is exactly what the COA application process requires, among other things. The FAA’s Nicholas A. Sabatini, Associate Administrator for Regulation and Certification made this distinction between civil and public aircraft abundantly clear when he testified before Congress in 2004:

[F]rom the very beginning and at all times during the existence of the FAA, there has been a clear statutory distinction between civil and public aircraft operations. FAA has regulatory and oversight authority over civil aircraft operations. Public aircraft operations are conducted by or on behalf of many different government agencies and departments, including state and federal. . .. By statute, authority for the safety oversight of these operations belongs to the agency or department responsible for the operation. While FAA can and does provide technical support to assist other agencies with their safety oversight responsibilities, the law is quite clear that FAA cannot direct or compel another agency to impose specific safety requirements or force them to meet existing FAA requirements. (Emphasis added.)

What is extremely interesting in this “fact” is the FAA is now claiming Advisory Circular 91-57 requires mandatory compliance. This, despite the fact that that document’s language itself states that it “encourages voluntary compliance.” How the FAA is now classifying a voluntary guidance document as mandatory in nature is beyond me.

Myth #4: There are too many commercial UAS operations for the FAA to stop.

Fact—The FAA has to prioritize its safety responsibilities, but the agency is monitoring UAS operations closely. Many times, the FAA learns about suspected commercial UAS operations via a complaint from the public or other businesses. The agency occasionally discovers such operations through the news media or postings on internet sites. When the FAA discovers apparent unauthorized UAS operations, the agency has a number of enforcement tools available to address these operations, including a verbal warning, a warning letter, and an order to stop the operation.

This “fact” is also in part true. The FAA has been “discovering” commercial operations of unmanned aircraft in the manner it states. However, how it has discovered those operations is irrelevant. What is relevant is that with this supposed “fact,” the FAA is again asserting that it has the authority to enforce federal statutes and/or regulations that simply do not exist. Any such verbal warnings, warning letters or orders to stop are entirely meaningless, since there exists no authority whatsoever for the FAA to issue any such warnings or orders, or do anything further if they are simply ignored.

Myth #5: Commercial UAS operations will be OK after September 30, 2015.

Fact—In the 2012 FAA reauthorization legislation, Congress told the FAA to come up with a plan for “safe integration” of UAS by September 30, 2015. Safe integration will be incremental. The agency is still developing regulations, policies and standards that will cover a wide variety of UAS users, and expects to publish a proposed rule for small UAS – under about 55 pounds – later this year. That proposed rule will likely include provisions for commercial operations.

This “fact” is actually humorous, as it is a series of FAA admissions that federal regulations regarding unmanned aircraft do not currently exist. Congress would not have “told the FAA to come up with a plan” if regulations already existed. The FAA would not be “developing regulations” concerning RCMA if regulations already existed. And the FAA would not “expect[] to publish a proposed rule” for unmanned aircraft if one already existed.

Myth #6: The FAA is lagging behind other countries in approving commercial drones.

Fact – This comparison is flawed. The United States has the busiest, most complex airspace in the world, including many general aviation aircraft that we must consider when planning UAS integration, because those same airplanes and small UAS may occupy the same airspace.

Developing all the rules and standards we need is a very complex task, and we want to make sure we get it right the first time. We want to strike the right balance of requirements for UAS to help foster growth in an emerging industry with a wide range of potential uses, but also keep all airspace users and people on the ground safe.

This “fact” has nothing to do with any restrictions on unmanned aircraft, but is rather an attempted explanation as to why it is taking so long for the FAA to promulgate the regulations that Congress had ordered it to promulgate under the FMRA of 2012. The reasons for the delay are irrelevant with respect to the legality of unmanned operations right now.

Myth #7: The FAA predicts as many as 30,000 drones by 2030.

Fact—That figure is outdated. It was an estimate in the FAA’s 2011 Aerospace Forecast. Since then, the agency has refined its prediction to focus on the area of greatest expected growth. The FAA currently estimates as many as 7,500 small commercial UAS may be in use by 2018, assuming the necessary regulations are in place. The number may be updated when the agency publishes the proposed rule on small UAS later this year.

This “fact” also has nothing to do with any restrictions on unmanned aircraft, but rather is a correction of an FAA “prediction.” It’s nothing more than the FAA’s opinion as to what the future holds.