Unexpected visit from Contra Costa County Sheriff's Office

No - the point is that nothing in Part 101 says that you cannot fly in surface Class E, surface Class C, or Class D. You cannot argue that it is forbidden under 101.43, since 101.43 does not say that.

Furthermore, the statement that you may fly within 5 miles of airports if you notify them first clearly indicates that the airspace class is not the determining factor, since around many airports that would not be Class G. The only FAA statement with regard to recreational flying and airspace class is the one that I quoted above involving surface Class B.

And in relation to your previous post, Class E is not out of the question for recreational flying if it is surface Class E.

Remember that Part 101 exists as a special exemption for recreational model aircraft flight. It does not conform to normal FAA regulations, because the FAA was prohibited by Congress from regulating that activity.
You are absolutely correct, I forgot Surface E. But I most definitely will argue 101.43 prevents entry in Class B, C & D with-out satisfying the requirements I showed above.
Common sense should tell us that if all other aircraft are required to have radio communications with the operating tower/controller, and take direction from the tower/controller, there is no way that you or I can fly a drone through that airspace just because we called ahead on the phone and said that's what we are going to do.
What do you think that controller is going to say when you call and tell him you're flying your drone through that tower controlled airport that has an instrument approach in use?
"Thanks for the call, do what ever you want, we'll just scatter all of these airplanes out of your way"?
Never happen. UAS is at the bottom of the food chain, not the top.
 
You are absolutely correct, I forgot Surface E. But I most definitely will argue 101.43 prevents entry in Class B, C & D with-out satisfying the requirements I showed above.
Common sense should tell us that if all other aircraft are required to have radio communications with the operating tower/controller, and take direction from the tower/controller, there is no way that you or I can fly a drone through that airspace just because we called ahead on the phone and said that's what we are going to do.
What do you think that controller is going to say when you call and tell him you're flying your drone through that tower controlled airport that has an instrument approach in use?
"Thanks for the call, do what ever you want, we'll just scatter all of these airplanes out of your way"?
Never happen. UAS is at the bottom of the food chain, not the top.

Now you are arguing a different point that I agree with. But the FAA's hands have been tied here, which is why 101 is written so differently to 107 in terms of airspace. The way that they address the kind of scenario that you mention is by reference to 101.43, but not with a blanket controlled airspace restriction. An airport operator or tower cannot deny permission to a recreational flyer, but they can object, and if the UAV is then flown in a manner that may endanger the NAS, that may be used as evidence.

Unmanned Aircraft Systems (UAS) Frequently Asked Questions

Can an airport operator object to model aircraft flights near an airport?

Yes, an airport operator can object to the proposed use of a model aircraft within five miles of an airport if the proposed activity would endanger the safety of the airspace. However, the airport operator cannot prohibit or prevent the model aircraft operator from operating within five miles of the airport. Unsafe flying in spite of the objection of an airport operator may be evidence that the operator was endangering the safety of the National Airspace System. Additionally, the UAS operator must comply with any applicable airspace requirements.​


Frequently Asked Questions (FAQs) about the Use of Model Aircraft Near an Airport – Airports

Can an airport operator object to model aircraft flights near my airport?

  1. Yes, according the FAA’s Interpretation of the Special Rule for Model Aircraft, you can object to the proposed use of a model aircraft within five miles of an airport if the proposed activity would endanger the safety of the NAS. However, the airport operator cannot prohibit or prevent the model aircraft operator from operating within five miles of the airport.
    If you object to a proposed model aircraft operation within five statute miles of the airport for safety reasons and the model aircraft operator flies anyway, the airport operator has the following options depending upon the airport operator’s judgment of risk from the model aircraft flight:
 
Now you are arguing a different point that I agree with. But the FAA's hands have been tied here, which is why 101 is written so differently to 107 in terms of airspace. The way that they address the kind of scenario that you mention is by reference to 101.43, but not with a blanket controlled airspace restriction. An airport operator or tower cannot deny permission to a recreational flyer, but they can object, and if the UAV is then flown in a manner that may endanger the NAS, that may be used as evidence.

Unmanned Aircraft Systems (UAS) Frequently Asked Questions

Can an airport operator object to model aircraft flights near an airport?

Yes, an airport operator can object to the proposed use of a model aircraft within five miles of an airport if the proposed activity would endanger the safety of the airspace. However, the airport operator cannot prohibit or prevent the model aircraft operator from operating within five miles of the airport. Unsafe flying in spite of the objection of an airport operator may be evidence that the operator was endangering the safety of the National Airspace System. Additionally, the UAS operator must comply with any applicable airspace requirements.​


Frequently Asked Questions (FAQs) about the Use of Model Aircraft Near an Airport – Airports

Can an airport operator object to model aircraft flights near my airport?

  1. Yes, according the FAA’s Interpretation of the Special Rule for Model Aircraft, you can object to the proposed use of a model aircraft within five miles of an airport if the proposed activity would endanger the safety of the NAS. However, the airport operator cannot prohibit or prevent the model aircraft operator from operating within five miles of the airport.
    If you object to a proposed model aircraft operation within five statute miles of the airport for safety reasons and the model aircraft operator flies anyway, the airport operator has the following options depending upon the airport operator’s judgment of risk from the model aircraft flight:
I am truly enjoying our time together on this. I hope you are too. Here's my latest counter point supporting my position & taken directly from the FIRST FAQ's you just sent.
"Additionally, the UAS operator MUST COMPLY WITH ANY APPLICABLE AIRSPACE REQUIREMENTS."
To me that does not say "Must comply with any UAS special unwritten airspace rules because the FAA's hands are tied"
Please remember, I am an old guy who has flown, taught, and tangled with the FAA for 40 years over their poor verbiage. IF UAS's are exempt from virtually every standing FAA rule/reg that has been in existence for decades, then someone has lost their mind and allowed the genie out of the bottle.
But I will admit, my whole argument hinges on the word "Applicable".
 
  • Like
Reactions: sar104
I am truly enjoying our time together on this. I hope you are too. Here's my latest counter point supporting my position & taken directly from the FIRST FAQ's you just sent.
"Additionally, the UAS operator MUST COMPLY WITH ANY APPLICABLE AIRSPACE REQUIREMENTS."
To me that does not say "Must comply with any UAS special unwritten airspace rules because the FAA's hands are tied"
Please remember, I am an old guy who has flown, taught, and tangled with the FAA for 40 years over their poor verbiage. IF UAS's are exempt from virtually every standing FAA rule/reg that has been in existence for decades, then someone has lost their mind and allowed the genie out of the bottle.
But I will admit, my whole argument hinges on the word "Applicable".

That is an interesting statement. The problem is that Part 101 does not list any airspace requirements at all - not even the Class B restriction that the FAA addresses on its website. So I agree - the term "applicable", right now, seems like an empty provision.

So I'll go back to the simple observation that Part 101 explicitly permits flying within 5 miles of an airport with notification - it doesn't say that you can fly within 5 miles of an airport with notification but only if it is Class G. The FAA is not shy about specifying what is prohibited, and if it is not prohibited then by implication it is allowed.

Part 107 is clearly how the FAA wants to regulate UAVs. Part 101 addresses an inconvenient subset of unmanned aircraft operations that they have been forbidden to touch.
 
  • Like
Reactions: BigAl07
That is an interesting statement. The problem is that Part 101 does not list any airspace requirements at all - not even the Class B restriction that the FAA addresses on its website. So I agree - the term "applicable", right now, seems like an empty provision.

So I'll go back to the simple observation that Part 101 explicitly permits flying within 5 miles of an airport with notification - it doesn't say that you can fly within 5 miles of an airport with notification but only if it is Class G. The FAA is not shy about specifying what is prohibited, and if it is not prohibited then by implication it is allowed.
Part 107 is clearly how the FAA wants to regulate UAVs. Part 101 addresses an inconvenient subset of unmanned aircraft operations that they have been forbidden to touch.

I like your well thought out and well written points. But, I think that since Part 101 does not list any airspace requirements at all, the word "applicable", must refer to the all encompassing Part 91; Grand Daddy of all flight rules & regs.
You know, in the "old days", we used to keep a pocket full of dimes for the payphone booth when we had to call the FAA for a clarification on something. If we did not get the answer we were looking for, we would call back, again & again, until somebody in authority agreed with our interpretation. Then we would write their name down and go about our business. Chances are good that ten FAA folks will give you eight different interpretations for the same question. The FAA has always been notorious for ambiguous wording.
I have to shut down for the night, but I would welcome reading anything you have to say. I'll be back tomorrow.
 
I like your well thought out and well written points. But, I think that since Part 101 does not list any airspace requirements at all, the word "applicable", must refer to the all encompassing Part 91; Grand Daddy of all flight rules & regs.
You know, in the "old days", we used to keep a pocket full of dimes for the payphone booth when we had to call the FAA for a clarification on something. If we did not get the answer we were looking for, we would call back, again & again, until somebody in authority agreed with our interpretation. Then we would write their name down and go about our business. Chances are good that ten FAA folks will give you eight different interpretations for the same question. The FAA has always been notorious for ambiguous wording.
I have to shut down for the night, but I would welcome reading anything you have to say. I'll be back tomorrow.

I'm quite sure that the FAA would like that to be the interpretation. 14 CFR 91-131 was clearly the inspiration for their Class B statement. That is clear from their notice of interpretation of the special rule in 336, published in 2014, which was a clear attempt to circumvent the restrictions on further regulation of model aircraft. It's FAA weaseliness at its best, arguing that they are only prohibited from promulgating further rules that only apply to model aircraft, but that they can apply all other aviation rules, current and future, that apply to manned aircraft:

Section 336 also prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the following statutory requirements are met:

• the aircraft is flown strictly for hobby or recreational use; 

• the aircraft is operated in accordance with a community-based set 
of safety guidelines and within the programming of a nationwide 
community-based organization; 

• the aircraft is limited to not more than 55 pounds unless otherwise 
certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; 

• the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and 

• when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower ... with prior notice of the operation....


P.L. 112-95, section 336(a)(1)-(5).


Thus, based on the language of the statute, we conclude that aircraft that meet the 
statutory definition and operational requirements, as described above, would be exempt from future FAA rulemaking action specifically regarding model aircraft. Model aircraft that do not meet these statutory requirements are nonetheless unmanned aircraft, and as such, are subject to all existing FAA regulations, as well as future rulemaking action, and the FAA intends to apply its regulations to such unmanned aircraft.

The last sentence refers to Part 107. They go on to say:

Congress directed that the FAA may not “promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the aircraft is being operated, or being developed to be operated, pursuant to the five criteria enumerated in the statute as described above. P.L. 112-95, section 336(a). In other words, Congress has restricted the FAA from promulgating regulations, from the date when the statute was enacted, specifically regarding model aircraft that meet the terms of the statute.

However, the prohibition against future rulemaking is not a complete bar on rulemaking that may have an effect on model aircraft. As noted above, the rulemaking limitation applies only to rulemaking actions specifically “regarding a model aircraft or an aircraft being developed as a model aircraft.” P.L. 112-95, section 336(a). Thus, the rulemaking prohibition would not apply in the case of general rules that the FAA may issue or modify that apply to all aircraft, such as rules addressing the use of airspace (e.g., the 2008 rule governing VFR operations in the Washington, DC area) for safety or security reasons. See 73 FR 46803. The statute does not require FAA to exempt model aircraft from those rules because those rules are not specifically regarding model aircraft. On the other hand, a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule, for example, because of the limitation on future rulemaking specifically “regarding a model aircraft, or an aircraft being developed as a model aircraft.” P.L. 112-95, section 336(a). The FAA interprets the section 336 rulemaking prohibition as one that must be evaluated on a rule-by-rule basis.

Credible effort, but not adopted, so far, in practice. With regard to airspace, they then tried to argue as you have:

Generally, if an operator is unable to comply with the regulatory requirements for operating in a particular class of airspace, the operator would need authorization from air traffic control to operate in that area. See, e.g., 14 CFR 91.127(a), 91.129(a). Operations within restricted areas designated in part 73 would be prohibited without permission from the using or controlling agency. Accordingly, as part of the requirements for model aircraft operations within 5 miles of an airport set forth in section 336(a)(4) of P.L. 112-95, the FAA would expect modelers operating model aircraft in airspace covered by §§ 91.126 through 91.135 and part 73 to obtain authorization from air traffic control prior to operating.

However - that's not how it is being interpreted for other classes of controlled airspace - airports are readily agreeing to recreational flights within 5 miles and in controlled airspace. The FAA's own guidance app does not warn about airspace classes, even though it will list them - it just tells you to contact airports within 5 miles, stating "Warning, Action Required" rather than "Flight Prohibited".
 
I'm quite sure that the FAA would like that to be the interpretation. 14 CFR 91-131 was clearly the inspiration for their Class B statement. That is clear from their notice of interpretation of the special rule in 336, published in 2014, which was a clear attempt to circumvent the restrictions on further regulation of model aircraft. It's FAA weaseliness at its best, arguing that they are only prohibited from promulgating further rules that only apply to model aircraft, but that they can apply all other aviation rules, current and future, that apply to manned aircraft:

Section 336 also prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the following statutory requirements are met:

• the aircraft is flown strictly for hobby or recreational use; 

• the aircraft is operated in accordance with a community-based set 
of safety guidelines and within the programming of a nationwide 
community-based organization; 

• the aircraft is limited to not more than 55 pounds unless otherwise 
certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; 

• the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and 

• when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower ... with prior notice of the operation....


P.L. 112-95, section 336(a)(1)-(5).


Thus, based on the language of the statute, we conclude that aircraft that meet the 
statutory definition and operational requirements, as described above, would be exempt from future FAA rulemaking action specifically regarding model aircraft. Model aircraft that do not meet these statutory requirements are nonetheless unmanned aircraft, and as such, are subject to all existing FAA regulations, as well as future rulemaking action, and the FAA intends to apply its regulations to such unmanned aircraft.

The last sentence refers to Part 107. They go on to say:

Congress directed that the FAA may not “promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the aircraft is being operated, or being developed to be operated, pursuant to the five criteria enumerated in the statute as described above. P.L. 112-95, section 336(a). In other words, Congress has restricted the FAA from promulgating regulations, from the date when the statute was enacted, specifically regarding model aircraft that meet the terms of the statute.

However, the prohibition against future rulemaking is not a complete bar on rulemaking that may have an effect on model aircraft. As noted above, the rulemaking limitation applies only to rulemaking actions specifically “regarding a model aircraft or an aircraft being developed as a model aircraft.” P.L. 112-95, section 336(a). Thus, the rulemaking prohibition would not apply in the case of general rules that the FAA may issue or modify that apply to all aircraft, such as rules addressing the use of airspace (e.g., the 2008 rule governing VFR operations in the Washington, DC area) for safety or security reasons. See 73 FR 46803. The statute does not require FAA to exempt model aircraft from those rules because those rules are not specifically regarding model aircraft. On the other hand, a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule, for example, because of the limitation on future rulemaking specifically “regarding a model aircraft, or an aircraft being developed as a model aircraft.” P.L. 112-95, section 336(a). The FAA interprets the section 336 rulemaking prohibition as one that must be evaluated on a rule-by-rule basis.

Credible effort, but not adopted, so far, in practice. With regard to airspace, they then tried to argue as you have:

Generally, if an operator is unable to comply with the regulatory requirements for operating in a particular class of airspace, the operator would need authorization from air traffic control to operate in that area. See, e.g., 14 CFR 91.127(a), 91.129(a). Operations within restricted areas designated in part 73 would be prohibited without permission from the using or controlling agency. Accordingly, as part of the requirements for model aircraft operations within 5 miles of an airport set forth in section 336(a)(4) of P.L. 112-95, the FAA would expect modelers operating model aircraft in airspace covered by §§ 91.126 through 91.135 and part 73 to obtain authorization from air traffic control prior to operating.

However - that's not how it is being interpreted for other classes of controlled airspace - airports are readily agreeing to recreational flights within 5 miles and in controlled airspace. The FAA's own guidance app does not warn about airspace classes, even though it will list them - it just tells you to contact airports within 5 miles, stating "Warning, Action Required" rather than "Flight Prohibited".
Well done, Sir. This certainly sums up everything we needed to hash out at this point in time . It will be fascinating to see what the future holds for regulations regarding UAS.
 
Last edited by a moderator:
  • Like
Reactions: sar104

Members online

Forum statistics

Threads
143,066
Messages
1,467,356
Members
104,934
Latest member
jody.paugh@fullerandsons.