[Note: This post addresses the second of two revisions of the FAA’s Myth Busting page, both of which were published on Saturday, March 8, 2014.]

The FAA received an overwhelming response to the Unmanned Aircraft Systems (UAS) Mythbusters February 26, web item. In response to inquiries, we are providing additional information on UAS operations and the regulations that apply to those operations. Here are some common myths and the clarifying facts.

If by “overwhelming response” the FAA means backlash, ridicule and oh, a scathing decision against it by an NTSB Administrative Law Judge, then yes, this statement would be true. With this latest version of its Myth Busting page, the FAA has taken its losing pleadings against Raphael Pirker, converted them to HTML, and plopped them on the web, as if doing so would magically lend them some credibility. It doesn’t. And if the FAA hopes to prevail on appeal, it ought to come up with something better than this nonsense, which is the essence of ineptitude.

Most, if not all of it, has already been overwhelmingly and successfully refuted— by Pirker’s Attorney, Brendan Schulman; by NTSB Administrative Law Judge Patrick Geraghty; on this site; and by other legal critics. I must assume that the FAA, knowing it will lose any and all appeals from a thoughtful and well-reasoned decision, is using this revision as a last ditch effort to pretend it has authority over remote-controlled model aircraft, (“RCMA”), and to intimidate RCMA operators who wish to use their craft “commercially.”

Myth #1: Unmanned aircraft are not aircraft.

Fact –Unmanned aircraft, regardless of whether the operation is for recreational, hobby, business, or commercial purposes, are aircraft within both the definitions found in statute under title 49 of U.S. Code, section 40102(a)(6) [49 U.S.C. § 40102(a)(6)] and title 14 of the Code of Federal Regulations section 1.1.[14 C.F.R. § 1.1].

Section 40102(a)(6) defines an aircraft as “any contrivance invented, used, or designed to navigate or fly in the air.” The FAA’s regulations (14 C.F.R. § 1.1.) similarly define an aircraft as “a device that is used or intended to be used for flight in the air.” Because an unmanned aircraft is a contrivance/device that is invented, used, and designed to fly in the air, an unmanned aircraft is an aircraft based on the unambiguous language in the FAA’s statute and regulations.

In addition, Public Law 112-95, Section 331(6),(8), and (9) expressly defines the terms “small unmanned aircraft,” “unmanned aircraft,” and “unmanned aircraft system” as aircraft. Model aircraft are also defined as “aircraft” per Public Law 112-95, section 336(c).

Most of this “fact” has already been declared untrue by the NTSB judge. The decision states quite clearly that, “[n]either the Part 1, Section. 1.1, or the 49 U.S.C. Section 40102(a)(6) definitions of “aircraft” are applicable to, or include a model aircraft within their respective definition.”

The only part of this “fact” that is true is the last paragraph. However, the FAA fails to mention that Public Law 112-95, Sections 331(6), (8), (9) and Section 336(c) apply to the FAA only and not to the public, and that it is a prospective law, the terms of which will take effect on a future date, when regulations are adopted.

It should be noted that the FAA suddenly refers to this law, here and throughout its revamped page, as “Public Law 112-95,” instead of its more common name, ​the “FAA Modernization and Reform Act of 2012.” It does this intentionally, in an attempt to trick the public into thinking there exists yet some other law that gives the FAA authority over RCMA. Make no mistake— Public Law 112-95 and the FAA Modernization and Reform Act of 2012 are one in the same.

Myth #2: Unmanned aircraft are not subject to FAA regulation.

Fact –All civil aircraft are subject to FAA regulation under law: 49 U.S.C. § 44701. For example, 14 C.F.R. part 91 applies generally to the operation of aircraft.

This “fact” has also been declared untrue by the NTSB. Judge Geraghty held:

“As Policy Notices 05-01 and 08-01 were issued and intended for internal guidance for FAA personnel, they are not a jurisdictional basis for asserting Part 91 FAR enforcement authority on model aircraft operations.”

and

“Policy Notice 07-01 does not establish a jurisdictional basis for asserting Part 91, Section 91.13(a) enforcement on Respondent’s model aircraft operation, as the Notice is either (a) as it states, a Policy Notice/Statement and hence non-binding, or (b) an invalid attempt of legislative rulemaking, which fails for non-compliance with the requirement of 5 U.S.C, Section. 553, Rulemaking.”

Myth #3: The FAA doesn’t control airspace below 400 feet

Fact—The FAA is responsible for air safety from the ground up. Under 49 U.S.C. § 40103(b)(2), the FAA has broad authority to prescribe regulations to protect individuals and property on the ground and to prevent collisions between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects. Consistent with its authority, the FAA presently has regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. For example, 14 C.F.R. § 91.13 prohibits any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.

This “fact” has already been refuted by the first version of my refutation. For the reasons stated there, the FAA does not have an enormous easement “from the ground up” over all U.S. territory. Using the logic in this “fact,” the FAA would have jurisdiction if two frisbees were to collide in a backyard. The NTSB has already ruled that, like frisbees, RCMA are not aircraft under the current statutory and regulatory definitions.

Myth #4: UAS flights operated for commercial or business purposes are OK if the vehicle is small and operated over private property and below 400 feet.

Fact—All UAS operations for commercial or business purposes are subject to FAA regulation. At a minimum, any such flights require a certified aircraft and a certificated pilot. UAS operations for commercial or business purposes cannot be operated under the special rule for model aircraft found in section 336 of Public Law 112-95.

To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified for commercial use, and they are only authorized to 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.

This “fact” has also been declared untrue by the NTSB. In his decision, Judge Geraghty stated first, that “the classification UAS does not appear in the FAR,” and later, that there exists “no enforceable FAA rule or FAR Regulation, applicable to model aircraft or for classifying model aircraft as an UAS.” So even if UAS were an existing classification of aircraft under current regulations, RCMA wouldn’t fall under that classification. It should be noted that by not referencing the 2007 ​”clarification,“ the FAA appears to have finally conceded that it is not a law. On its initial Myth Busting page, it had relied upon that “clarification” to dispute this “myth.”

Myth #5: 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 UAS operations in violation of the FAA’s regulations, the agency has a number of enforcement tools available to address these operations, including a verbal warning, a warning letter, and legal enforcement action.

This “fact” is in part true and already addressed in my initial refutation. Yes, 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, orders to stop and the newly-added phrase, “legal enforcement action,” are entirely meaningless, since there exists no authority whatsoever for the FAA to issue any such warnings or orders, or to initiate any enforcement action.

Myth #6: Commercial UAS operations will be OK after September 30, 2015.

Fact—In the 2012 FAA reauthorization legislation (Public Law 112-95), 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 writing regulations, which will supplement existing regulations that currently are applicable to the operation of all aircraft (both manned and unmanned), that will apply more specifically to a wide variety of UAS users. The FAA expects to publish a proposed rule for small UAS – under about 55 pounds – later this year. That proposed rule likely will include provisions for commercial operations.

This “fact” is a modified version of the the FAA’s original version, and remains humorous. The original version used the language, “The agency is still developing regulations, policies and standards that will cover a wide variety of UAS users.” This new version states that the FAA is writing regulations that “will supplement existing regulations that currently are applicable to the operation of all aircraft (both manned and unmanned), that will apply more specifically to a wide variety of UAS users.” This sentence is nothing more than a self-serving proclamation with no basis in law. The NTSB has already ruled that RCMA are not “aircraft,” and that even if they were, they would not fall under the classification of “UAS.” Moreover, the word “will” is an expression of future tense. If what the FAA is writing will supplement and will apply, by definition whatever it is writing does not currently exist or apply now.

Myth #7: 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.

As stated in my original refutation, 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 #8: 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.

We believe that the civil UAS markets will evolve within the constraints of the regulatory and airspace requirements. Once enabled, commercial markets will develop and demand will be created for additional UAS and the accompanying services they can provide. Once enabled, we estimate roughly 7,500 commercial sUAS would be viable at the end of five years.

This “fact” was also addressed in my original refutation. It 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.