Diceman
Moderator
Just like I said earlier. All because of the drones. If drones were never invented, our rules would not have changed. Just saying
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FAA 400ft Limit
- Thread starter jvaliensi
- Start date
Just like I said earlier. All because of the drones. If drones were never invented, our rules would not have changed. Just saying
S
Skye
Guest
In an effort to provide a precis for those interested, I'll do my best to hit only the high points as concisely as possible, which means unintended inferences are likely to be raised by some. The following will be my opinions on issues of law arising since 1958, showing why I opine we are where we are, owing to Trappy's bad conduct. So you can weigh my opinions, assume I have a JD and an Ll.M., and practiced law for more than 40 years, often representing common carriers by land, sea and air. Assume as well I am type rated in several turbines, with an ATP, though health has made that moot.
First, let's go over a few statutes (laws), regulations (quasi statutory matter) or terms of art (technical terms) that apply, though certainly many others do, too:
1. The Federal Aviation Act of 1958, or a so-called enabling act which both created a federal agency and delegated to it rule making power, and which, in letter and spirit, expressly or impliedly applies PROSPECTIVELY TO CHANGES IN TECHNOLOGY WHICH OPERATE WITHIN THE SUJBECT MATTER OF THE ACT;
2. The Administrative Procedures Act, which governs how federal agencies promulgate or adopt SUBSTANTIVE regulations, which then become quasi-statutory (it does NOT apply to interpretative regulations, or those governing how agency employees and the public should interpret or construe substantive rules);
3. The Chevron doctine adopted by the Supreme Court which basically says it will give wide latitude or discretion to an agency with regard to the agency's OWN interpretation of the agency's rules, INCLUDING THOSE DEALING WITH ITS REGULATORY AUTHORITY (SCOPE OR "JURISDICTION" OVER THE SUBJECT MATTER); (in plain terms, this means the NEITHER Supreme Court, nor the federal courts, will "second guess" an agency's claims of what its regulations mean or whether they apply absent unsual circumstances);
4. The valid (APA compliant) FAA regulation making it an infraction to operate an "aircraft" in a reckless manner (an objective test);
5. The right/power of the FAA to make agency determinations (non-judicial) of fact and law regarding the reckless operation of aircraft, and assess penalties against the operator;
6. The right to appeal to the judicial branch issues of law and fact determined by, or against the FAA, either by the operator or the FAA (the matter only goes from the executive branch to the judicial branch after all administrative remedies are exhausted, either by the FAA or the operator); and,
7. Proximate cause generally means the last or most recent cause in a chain of events that leads logically and legally, or naturally and probably to a certain outcome.
continued
First, let's go over a few statutes (laws), regulations (quasi statutory matter) or terms of art (technical terms) that apply, though certainly many others do, too:
1. The Federal Aviation Act of 1958, or a so-called enabling act which both created a federal agency and delegated to it rule making power, and which, in letter and spirit, expressly or impliedly applies PROSPECTIVELY TO CHANGES IN TECHNOLOGY WHICH OPERATE WITHIN THE SUJBECT MATTER OF THE ACT;
2. The Administrative Procedures Act, which governs how federal agencies promulgate or adopt SUBSTANTIVE regulations, which then become quasi-statutory (it does NOT apply to interpretative regulations, or those governing how agency employees and the public should interpret or construe substantive rules);
3. The Chevron doctine adopted by the Supreme Court which basically says it will give wide latitude or discretion to an agency with regard to the agency's OWN interpretation of the agency's rules, INCLUDING THOSE DEALING WITH ITS REGULATORY AUTHORITY (SCOPE OR "JURISDICTION" OVER THE SUBJECT MATTER); (in plain terms, this means the NEITHER Supreme Court, nor the federal courts, will "second guess" an agency's claims of what its regulations mean or whether they apply absent unsual circumstances);
4. The valid (APA compliant) FAA regulation making it an infraction to operate an "aircraft" in a reckless manner (an objective test);
5. The right/power of the FAA to make agency determinations (non-judicial) of fact and law regarding the reckless operation of aircraft, and assess penalties against the operator;
6. The right to appeal to the judicial branch issues of law and fact determined by, or against the FAA, either by the operator or the FAA (the matter only goes from the executive branch to the judicial branch after all administrative remedies are exhausted, either by the FAA or the operator); and,
7. Proximate cause generally means the last or most recent cause in a chain of events that leads logically and legally, or naturally and probably to a certain outcome.
continued
S
Skye
Guest
So, in Piker, the issue was NOT whether preexisting regulations prohibited Pirker's operation of the device as he did, but WHETHER those preexisting regulations APPLIED at all to him since the FAA had not previously interpreted its regulatory authority/jurisdiction to include such devices within the definition of the term of art, "aircraft." Ultimately, under the terms of a settlement, the FAA amended its assessment to include ONLY facts constituting reckless operation and a determination of reckless operation of a regulated "aircraft," and Pirker WAIVED HIS RIGHTS TO AN APPEAL and agreed not to contest that determination so that it became final and non appealable (a so-called agreement not to contest the FAA's factual and legal determinations against him). The amount of the fine was immaterial to the FAA and to us since IT EXPRESSLY, FOR THE FIRST TIME, ESTABLISHED AS PRECEDENT BOTH ITS INTERPRETATION OF "AIRCRAFT" AS INCLUDING TRAPPY'S DEVICE, AND SIMILAR DEVICES, AND ITS (PER CHEVRON) INTERPRETATION OF ITS REGULATIORY AUTHORITY/JURISDICTION AS INCLUDING OR EMBRACING SUCH, OR SIMILAR TECHNOLOGY IN EXISTENCE OR YET TO COME INTO EXISTENCE.
The parties, the FAA and Pirker, during the ADMINISTRATIVE PROCEEDINGS in the FAA and NTSB, each recognized that the FAA had not previously asserted regulatory authority, with the FAA saying it now interpreted its regulations as applicable (Chevron deference attached), and Trappy saying Congress never delegated this right, and the FAA's prior NON-ASSERTION of regulatory authority demonstrates this-the NTSB, sitting as an appellate body, though still in an agency proceeding in the executive branch, found the FAA, under the enabling act, had the right or power to regulate "aircraft" at all relevant times, and that the FAA, retrospectively or prospectively, owing to changing technology, could interpret its regulatory authority/power or substantive regulations to assure public safety regardless of whether the device existed in 1958, or at any time thereafter. Pirker chose not to appeal to the Judicial branch, and the FAA got what it wanted, BINDING PRECEDENT that it could regulate these devices and the entire field, and it proceeded to do so.
Applying traditional proximate cause analysis, the "conditions" or causes that existed before Pirker included, without limitation, a federal agency, with regulatory authority, that prohibited reckless operation of "aircraft." The final "cause" or proxmiate cause in our little story was Pirker's reckless operation (yes, that's what he agreed NOT to contest) of the device, which then "lighted up" or resulted, proximately, in the FAA's express assertion of regulatory authority/regulation over our little hobby, and Piker, being the ass and spoiler he is, ran off to Hong Kong and left a turd in the punchbowl for us.
The parties, the FAA and Pirker, during the ADMINISTRATIVE PROCEEDINGS in the FAA and NTSB, each recognized that the FAA had not previously asserted regulatory authority, with the FAA saying it now interpreted its regulations as applicable (Chevron deference attached), and Trappy saying Congress never delegated this right, and the FAA's prior NON-ASSERTION of regulatory authority demonstrates this-the NTSB, sitting as an appellate body, though still in an agency proceeding in the executive branch, found the FAA, under the enabling act, had the right or power to regulate "aircraft" at all relevant times, and that the FAA, retrospectively or prospectively, owing to changing technology, could interpret its regulatory authority/power or substantive regulations to assure public safety regardless of whether the device existed in 1958, or at any time thereafter. Pirker chose not to appeal to the Judicial branch, and the FAA got what it wanted, BINDING PRECEDENT that it could regulate these devices and the entire field, and it proceeded to do so.
Applying traditional proximate cause analysis, the "conditions" or causes that existed before Pirker included, without limitation, a federal agency, with regulatory authority, that prohibited reckless operation of "aircraft." The final "cause" or proxmiate cause in our little story was Pirker's reckless operation (yes, that's what he agreed NOT to contest) of the device, which then "lighted up" or resulted, proximately, in the FAA's express assertion of regulatory authority/regulation over our little hobby, and Piker, being the ass and spoiler he is, ran off to Hong Kong and left a turd in the punchbowl for us.
S
Skye
Guest
Here is a link to all you really need to RATIONALLY conclude or infer that Pirker ultimately suffered or agreed not to contest an agency determination of "reckless operation" of an "aircraft," and left us with a mess, and that the FAA rightly pointed out that changing technology was clearly within the enabling act, and that prior administrative practice, LARGELY IN THE ABSENCE OF SUCH TECHNOLOGY, meant nothing or did not limit that regulatory authority/jurisdiction. https://www.team-blacksheep.com/docs/pirker-faa-settlement.pdf
Simply, BOTH PARTIES, the FAA and Pirker, clearly and unambiguously asserted in all of the proceedings and "papers" that the statutes and regulations, as interpreted or APPLIED BEFORE PIRKER, were NOT DISPOSITIVE OF THE ISSUES, hence logically and legally, one must conclude that the circumstances before Pirker were mere "conditions" and that the Pirker "decision" is the final or proximate cause of clear and certain regulatory authority/jurisdiciton/rule-making power.
I'm done, and people are free to opine, conclude or infer whatever they wish.
Simply, BOTH PARTIES, the FAA and Pirker, clearly and unambiguously asserted in all of the proceedings and "papers" that the statutes and regulations, as interpreted or APPLIED BEFORE PIRKER, were NOT DISPOSITIVE OF THE ISSUES, hence logically and legally, one must conclude that the circumstances before Pirker were mere "conditions" and that the Pirker "decision" is the final or proximate cause of clear and certain regulatory authority/jurisdiciton/rule-making power.
I'm done, and people are free to opine, conclude or infer whatever they wish.
Konrad
Very Strong User
My sincere thanks for taking the time to write this up.
So Pirker is not responsible for the advancement of the technologies that bought our toys under the scrutiny of the the FAA. It is these advancement that allowed the NTSB to classify our toys and aircraft. So the circumstance before Pirker were mere "conditions" and well within the rights of the FAA to address within the regs at the time. I don’t see how Pirker caused the problem we face with the current regs.
Other than this stetting of precedent. But this was inevitable as there was industry pressure to regulate the low level airspace for its monetization.
Back to Pirker can you point to what Pirker was first charged with, and what charges he ultimately pleaded no contest (guilty)? I don’t think he actually pleaded guilty. As he is a Swiss national and not a US citizen he is free to live where he wants. I think this may be true for the most part of a US citizen.
From the black sheep link to posted what does this mean? "Whether any aspect of Raphael’s flight was actually “reckless” was not decided”
"The NTSB Board in November decided the appeal very narrowly, reversing the Administrative Law Judge and holding that a model aircraft operator is subject to a single aviation regulation, 14 CFR 91.13(a), concerning “careless or reckless operation that endangers the life or property of another.” Whether any aspect of Raphael’s flight was actually “reckless” was not decided. The NTSB Board did not comment on whether commercial use is or is not prohibited, but did recognize a fundamental problem with the FAA’s current position: “certain provisions of the [federal aviation regulations] may not be logically applicable to model aircraft.”
So the Pirker case legally defined that the technology we now use defines our toys as aircraft. Was this not on the horizon with the return to home modules we see so often in our gliders? Did we have a definition of a model aircraft? Do we now have a definition of a model aircraft?
All the best,
Konrad
So Pirker is not responsible for the advancement of the technologies that bought our toys under the scrutiny of the the FAA. It is these advancement that allowed the NTSB to classify our toys and aircraft. So the circumstance before Pirker were mere "conditions" and well within the rights of the FAA to address within the regs at the time. I don’t see how Pirker caused the problem we face with the current regs.
Other than this stetting of precedent. But this was inevitable as there was industry pressure to regulate the low level airspace for its monetization.
Back to Pirker can you point to what Pirker was first charged with, and what charges he ultimately pleaded no contest (guilty)? I don’t think he actually pleaded guilty. As he is a Swiss national and not a US citizen he is free to live where he wants. I think this may be true for the most part of a US citizen.
From the black sheep link to posted what does this mean? "Whether any aspect of Raphael’s flight was actually “reckless” was not decided”
"The NTSB Board in November decided the appeal very narrowly, reversing the Administrative Law Judge and holding that a model aircraft operator is subject to a single aviation regulation, 14 CFR 91.13(a), concerning “careless or reckless operation that endangers the life or property of another.” Whether any aspect of Raphael’s flight was actually “reckless” was not decided. The NTSB Board did not comment on whether commercial use is or is not prohibited, but did recognize a fundamental problem with the FAA’s current position: “certain provisions of the [federal aviation regulations] may not be logically applicable to model aircraft.”
So the Pirker case legally defined that the technology we now use defines our toys as aircraft. Was this not on the horizon with the return to home modules we see so often in our gliders? Did we have a definition of a model aircraft? Do we now have a definition of a model aircraft?
All the best,
Konrad
S
Skye
Guest
PAGE 2, AMENDED ORDER OF ASSESSMENT, THE LAST DOCUMENT IN THE LINK:
S
Skye
Guest
THE OTHER TWO PAGES OF THE AMENDED ASSESSMENT:
S
Skye
Guest
PER THE CLEAR AND UNAMBIGUOUS TERMS OF PARAGRAPH 10, THE FAA DETERMINED A VIOLATION OF A REGULATION PROHIBITING RECKLESS OPERATION. THERE IS NO OTHER RATIONAL CONSTRUCTION OF THIS DETERMINATION, AND HOSEBAG AGREED NOT TO CONTEST IT.
AGAIN, I'M DONE.
AGAIN, I'M DONE.
S
Skye
Guest
Oh, well, old age and eyes are a b.... I’m not going to bother modifying the above pdf copies when any rational person can follow the link, read it in its entirety and conclude that two material instruments exist, one in which Trappy and the FAA settled and the other in which the FAA determined reckless operation and assessed a penalty. These proceedings are administrative, not judicial, and guilt is a non sequitur.
Konrad
Very Strong User
Thank you. I must have missed the link. The only link I see is to Black Sheep PDF.
Please understand that I've never intended to defended Trappy's actions. I know little of the case. My questions is how did this case cause the FAA to write the reg we current are facing?
What type of aircraft was Trappy actually flying? I read accounts that it was a foam wing and not a quad copter.
All the best,
Konrad
Please understand that I've never intended to defended Trappy's actions. I know little of the case. My questions is how did this case cause the FAA to write the reg we current are facing?
What type of aircraft was Trappy actually flying? I read accounts that it was a foam wing and not a quad copter.
All the best,
Konrad
S
Skye
Guest
I’m done.
Konrad
Very Strong User
In the original order of assessment (post #47) 9.e., this has been done many many time in the filming of movies and advertisements. Every time I land at San Diego airport I'm doing this to the parking garage at the end of the runway on approach. I think I often clear the structure with less than 100 feet.
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S
Skye
Guest
What you seek, and I have seen, is outside the purview of the freedom of information act as part of an agency’s deliberative process. you either understand proximate cause analysis or you don’t. I’m done, you’ve exhausted me, my spirit and all reason.
your acts or omissions are facts of NO consequence to the outcome in Pirker.
your acts or omissions are facts of NO consequence to the outcome in Pirker.
Konrad
Very Strong User
Thank you for posting the details of the Pirker case
thenated0g
Moderator
FAA to Impose Restrictions on the Hobby - AMA IN ACTION Advocating for Members
AMA needs your assistance in an urgent matter. The FAA unexpectedly informed us that, contrary to earlier commitments to AMA, the agency is planning to limi ...
amablog.modelaircraft.org
Konrad
Very Strong User
It does sound like the AMA is not in the room when the FAA policies are being written (we don't have the clout, money or votes).
I'm at a loss. Didn't the legislative process already impose the 400' limit on May 17 with the 2018 FAA Reauthorization Act? So for now this is out of Congress's hands? The FAA (Executive branch) is charged with coming up with regulation that implement the law that the Congress (Legislative branch) has already passed.
My concern is with the waiver processes. Is it legal to allow a waiver above 400'?
It has been my experience that to influence (even getting a meeting) the policy makers one needs to donate money to "their reelection campaigns". Not to any individual, as this is looked at as a bribe.
We can try to get Congress to rewrite the law in the next FAA Reauthorization cycle, with money, votes or even legal challenges (If one can come up with a reason the 400' limit violates some established law).
All the best,
Konrad
I'm at a loss. Didn't the legislative process already impose the 400' limit on May 17 with the 2018 FAA Reauthorization Act? So for now this is out of Congress's hands? The FAA (Executive branch) is charged with coming up with regulation that implement the law that the Congress (Legislative branch) has already passed.
My concern is with the waiver processes. Is it legal to allow a waiver above 400'?
It has been my experience that to influence (even getting a meeting) the policy makers one needs to donate money to "their reelection campaigns". Not to any individual, as this is looked at as a bribe.
We can try to get Congress to rewrite the law in the next FAA Reauthorization cycle, with money, votes or even legal challenges (If one can come up with a reason the 400' limit violates some established law).
All the best,
Konrad