Sebina Muwanga

UAV Legal and Safety Issues

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This issue is for the lawyers and I predict it will be settled at the federal court level eventually (I doubt the Supreme Court will exercise certiorari). FAA has sole jurisdiction of the national airspace but the issue has been coming up since 1946 ( United States v. Causby, 328 U.S. 256 (U.S. 1946))

"The court's decision, authored by Justice William O. Douglas, could have resolved the case on a narrow ground by simply holding that there was a taking of land because the government's flights affected the land. Justice Douglas did reach that conclusion, but then he went much further and opined on what airspace landowners do and do not own. He wrote that "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run" ... Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," (emphasis added)  and invasions of that airspace "are in the same category as invasions of the surface."

 

As usual, the court's holding left the question still open, thus another federal court will eventually have to clarify Causby.

Edited by Uaviator53
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19 hours ago, George Fitzgerald said:

First of all, the FAA can’t make laws – only develop guidelines and regulations. The federal government has no authority whatsoever to regulate the operation of remote-controlled model aircraft.

I found this on Pro Video coalition. 

 

My understanding of the accord between model operators and the FAA is that the Fed will not impose new regulations restricting the use of model aircraft, however this is in the FAA's opinion a moot point as quad copters (and drones) are not considered to be rc model aircraft. This means that while an AMA sponsored club still has its protections for the rc model aircraft, this would not extend to quad copters as they are not classified as model, but instead have been interpreted by the FAA as "aircraft."  There is also a large distinction between recreation and commercial use; the FAA is the sole governing body in the National Airspace, while they are not in the legislative branch of the federal government they are the ones who develop regulations which will later be adopted by congress as law. In terms of commercial usage of aircraft the FAA is the gatekeeper so to speak to authorization via pilot certification, aircraft identification (N numbers), and other means.

A note on the ownership of airspace by private residence, this is an interesting history, originally a private land owner was given " Cuius est solum, eius est usque ad coelum et ad inferos " which essentially means you own from up to heaven and down to hell. This was later changed to owning an area of 500 feet above your property, with the development of airplanes and the increased usage of flight after wilbur and orville's continued success at kittyhawk and elsewhere. As it stands now most states and cities have  laws that prohibit the raising of a structure over a certain height without proper permitting( usually 50 feet or so).

As @Uaviator53 brought up this has been an issue that has been brought in front of the courts on several occasions with out much for concrete determinations. (Kudos on citing  the case)While the law may technically allow you to fly over someones property at 400 feet, if you wish to be taken seriously and avoid headaches you should be getting land owner permission prior to flying over their property, this is not only professional and paints our industry in a better light, but also is common courtesy that should be extended to the property owner. 

Of course you never truly own your property anyway as the federal government may exercise its right to eminent domain with payment. Anyone in MD may remember a time before the new connector around DC, which involved the eminent domain of many hundreds of properties to build the road. 

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On May 30, 2016 at 1:57 PM, George Fitzgerald said:

First of all, the FAA can’t make laws – only develop guidelines and regulations. The federal government has no authority whatsoever to regulate the operation of remote-controlled model aircraft.

I found this on Pro Video coalition. 

 

I thoroughly enjoyed attorneys like Peter Sachs, esq.  ( the web is full of lawyers who masquerade as aviation experts, some will even charge u $5,000 to write your 333, something I wrote in two days) who blab about how the big bad FAA can't touch and u should do as u please, but promptly follow their advice by a disclaimer that says I'm a lawyer but if u get in trouble don't call me. Anyone who is inclined to tell others to ignore the rules should include in their advice an offer to pay the legal expenses of anyone who follows the advice. Just saying...

As for me, I follow the rules in my 333 operation and don't worry about the FAA. 

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On 5/30/2016 at 9:39 AM, Jon Hovey said:

Just pulled this from WSJ this AM - this is going to be an interesting topic - please let me know if the link is not goo. Thank you!

http://www.wsj.com/articles/should-you-be-allowed-to-prevent-drones-from-flying-over-your-property-1463968981

 

This was a great debate. Thanks for posting here Jon.  Every UAV pilot needs to stay informed on the legal situations. Maybe you'll choose to ignore them and take the risks, but that needs to be a conscious and informed choice.  If / when someone shoots down your drone and the cops come (or you are wondering if you should call them yourself), you better know where you stand legally! 

Is the current information and guidance clear enough, or I wonder if this is still an area where pilots need help?

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Thanks for the information.

I am not American, but would liken to think the FAA works like other Aviation regulators around the world. Whereas they develop advisory circulars and guidelines, none of them makes laws or regulations.

All aviation related laws (primary legislation) are the Legislature's responsibility. Regulations (subsidiary legislation) are made by the minister/secretary responsible for transport to provide for procedures under the laws.

There must be a provision in the primary legislation that authorizes the minister/secretary to come up with regulations to cover specific areas under the Law. Regulators then enforce what is contained in both the primary and subsidiary legislation.

Regulators work as independent entities within guidelines, TORS established by legislation.

Most of the time, Regulators being the ministry's/transport department's technical arm play a vital role in developing these regulations, many of which are "domesticated" ICAO annexes. They also advise on proposed regulations. This does not mean they make them because this is a function the Legislature delegated to the transport minister/secretary.

 

S.M

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