[NSRCA-discussion] Fwd: legal analysis of FAA registration

[David Cook]

---------- Forwarded message ----------
From: Mark Wintering <markwintering at gmail.com>
Date: Mon, Dec 21, 2015 at 3:20 PM
Subject: Re: legal analysis of FAA registration
To: David Cook <dlcook083 at gmail.com>


It's free for 30 days (not 90 days)

Mark

On Mon, Dec 21, 2015 at 3:12 PM, Mark Wintering <markwintering at gmail.com>
wrote:

> Hi Dave:
>
> in 2012, Congress passed the 2012 FAA Modernization and Reform Act.
> Section 336 prohibits the FAA from passing regulations for model aircraft
> meeting five criteria (which I paraphrase):
> For hobby or recreation only
> Following safety standards of national community based organization (read
> AMA)
> Not exceeding 55 lb (some exceptions allowed)
> Not interfering with manned aircraft
> With prior notice to airport within 5 miles.
>
> On 6/25/14, the Department of Transportation filed comments in the Federal
> Register. On 8/22/14, the AMA filed Case #14-1158 in the DC Court of
> Appeals because the AMA disagreed with DOT and FAA about regulations on
> hobbyists after the 2012 law. The AMA petition and the DOT's publication in
> the Federal Register are attached.  AMA's lawsuit has been placed on hold
> by the court until some other related litigation is completed. Every 90
> days the FAA gives the court a brief status report.  See the attached
> report filed 11/3/15 where the FAA said it's reviewing the 33,000 comments
> in response.
>
> The FAA argues the 2012 law only prohibits new regulations; that it can
> continue to enforce existing ones. FAA argues model aircraft are aircraft,
> and that Congress earlier gave the FAA authority to act whenever any
> aircraft threaten or create hazards in the  National Airspace System NAS.
> FAA agrees it cannot make new regulations for hobbyists following the five
> criteria, but issues its interpretation of those criteria, such  as saying
> hobbyists must use line of sight--no FPV goggles. And no commercial use,
> including paid instructors. Read the attached stuff for more detail.
>
> As to the recent DOT and FAA registration regulation the FAA says models
> are aircraft. It has always had the authority to register aircraft, and a
> requirement to charge a registration fee. It didn't register models in the
> past. but always could and now will.   The AMA is trying to talk the FAA
> into accepting the AMA membership number we write in  our planes as a
> substitute. I'm guessing the FAA won't agree. There are way more present
> and future hobbyists outside the AMA than inside it. I think the FAA wants
> its own database, not one with the AMA's cobbled on it.
>
> I skimmed the legal blog you attached. My impression is the author knows
> way more than I do about the fine points of administrative law. He may have
> a valid point that much of what the FAA proposes is really "new" and
> therefore prohibited.  But his main point is that it costs a lot of money
> to legally fight such regulations. Will the manufacturers pay for drawn out
> litigation? The AMA may be thinking of filing for a temporary restraining
> order followed by an injunction to try and stop the registration of
> hobbyists, but I have not seen the AMA file anything new. Courts don't like
> to issue such orders.  They like the lawsuit to play out first.
>
> My prediction is that we will have to register. And I really don't think
> registration  is onerous. It's free for 90 days. You get one number you
> write anywhere in your plane someone can find it without a lot of tools.
> Not a big deal.
>
> Further restrictions like line of sight vs FPV will have to be ruled on in
> the courts.
>
> I read many pages of comments on the RCGroups website. For every
> thoughtful remark, there were 20 frankly crazy paranoid ones. A few all but
> threatened the government.   I understand that the vast majority of
> modelers are not the problem. And maybe the courts will have to rein the
> DOT and the FAA in a bit.  But current model aircraft have way more
> capacity to interfere with the NAS than when I got into the hobby. I don't
> think you can blame the DOT and FAA for trying to get out in front of such
> problems.
>
> Mark
>
>
>
>
> On Mon, Dec 21, 2015 at 11:53 AM, David Cook <dlcook083 at gmail.com> wrote:
>
>> Here's an interesting legal analysis:
>>
>>
>> http://jrupprechtlaw.com/myrupprecht-laws-analysis-of-the-faas-published-drone-registration-rule
>>
>>
>> I tried to read this and the first sentence it was way over my head.
>> Maybe you can bring this down to penut-butter-and-jelly for us. The treads
>> on the internet are on fire. I hope my computer doesn't catch fire reading
>> the comments.
>> DC
>>
>>
>>
>
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