Demystifying the Lincoln Drone Ordinance

In April of 2016, the City Council of Lincoln, Nebraska adopted an ordinance concerning unmanned aircraft systems.[1]  This ordinance was animated by fears of drone interference with an upcoming air show at the Lincoln Municipal Airport.  The ordinance incorporates provisions from Part 107[2] and FMRA § 336,[3] with a few important tweaks.  Because most of these provisions are identical, the true effect of the ordinance is simply to provide additional local enforcement authority.  Violations are subject to a progressive fine ranging from $100 for the first infraction to $500 for the third.[4]

The following table compares these provisions by subject matter.[5]

	Lincoln City Ordinance (“LCO”)[6]	Federal Regulations	Comments
Types of Unmanned Aircraft
-Model	“a small unmanned aircraft that is capable of sustained flight in the atmosphere and flown for hobby or recreational purposes”	FMRA § 336: “an unmanned aircraft that is— (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”	The LCO organizes things differently, but if you consider the definitions and operational restrictions together everything in the LCO matches FMRA § 336.
-Small Unmanned Aircraft	An “unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.”	§ 107.3: “Small Unmanned Aircraft means an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.”	[identical]
-Toy	“(1) a glider or hand-tossed aircraft that is not designed for and is incapable of sustained flight; or (2) an aircraft that is capable of sustained flight and that is controlled by means of a physical attachment, such as a string or wire”	[not defined]	Since they qualify as “toy” aircraft, the LCO does not regulate “tethered” drones.  This may or may not have been intentional, as some such aircraft are anything but toys.[7]  Section (1) may be a response to the FAA’s infamous “paper airplane admission” from Huerta v. Pirker.[8]
-Unmanned Aircraft	An aircraft that is “operated without the possibility of direct human intervention from within or on the aircraft and does not carry a human operator but can be remotely piloted or operated, also colloquially known as a drone.”  Does not include toy or public aircraft.	§ 107.3: “Unmanned aircraft means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.”	The LCO provision excludes autonomous air taxis and carves out toy and public aircraft, but it is otherwise identical.
-Unmanned Aircraft System	An “Unmanned Aircraft and its associated elements (including communication links and the components that control the unmanned aircraft) that are required for the safe and efficient operation of the unmanned aircraft in the airspace.”	§ 107.3: “Small unmanned aircraft system (small UAS) means a small unmanned aircraft and its associated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.”	Part 107 is only concerned with small UAS (under 55 pounds), so its definition does not cover heavier unmanned aircraft and their components.  The LCO does.
UAS restrictions and jurisdiction	“It shall be unlawful for any person to operate an Unmanned Aircraft System within the corporate limits of the City:”	The FAA has jurisdiction over the “navigable airspace” of the United States.[9]  It interprets that term to include airspace “at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.”[10]	Model aircraft are regulated at the federal level by FMRA § 336 and (arguably) the FAA’s generally applicable regulations on aircraft enacted prior to § 336.  All other UAS between .5 and 55 pounds are governed by Part 107.
-Registration	“(i) without registration and markings as required by Federal Aviation Administration regulations;”	§ 107.13 requires Part 107 operators to comply with the registration provision from Part 91 (which governs all aircraft).[11]	Whether model aircraft (operating under FMRA § 336 rather than Part 107) must be registered is being litigated in the D.C. Circuit now.[12]  The LCO smartly tied this requirement to the FAA’s own regulations.
-TFR/NOTAM	“(ii) in violation of any Temporary Flight Restriction included within a Notice to Airman issued by the Federal Aviation Administration; or”	[none]	All civilian aircraft must obey NOTAMs and TFRs.[13]  Those restrictions apply to any “aircraft” within the meaning of 14 C.F.R. § 1.1.[14]  As long as UAS and model aircraft fit within that definition, the LCO provision does no work, which is why this provision is absent from Part 107.
-Recklessness	“(iii) in a careless or reckless manner so as to endanger the life or property of another”	§ 107.23: “No person may: (a) Operate a small unmanned aircraft system in a careless or reckless manner so as to endanger the life or property of another”	These provisions are identical, but remember that Part 107 does not apply to model aircraft under FMRA § 336.  The FAA would argue that 14 C.F.R. § 91.13 applies because model aircraft are “aircraft” under 14 C.F.R. § 1.1.[15]
Restrictions for Model Aircraft	“In addition…Model aircraft shall not be operated:”	FMRA § 336(a): The FAA “may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—”	FMRA contains three additional criteria related to community standards, non-interference with manned aircraft, and a 55 pound weight limit.[16]  The bigger difference is that FMRA § 336 is a statutory safe harbor from the FAA’s rulemaking authority, so Part 107 does not apply to model aircraft.  By contrast, Nebraska requires the same registration, compliance with NOTAMs and TFRs, and restraint from careless or reckless behavior for model aircraft as it requires for any other UAS.
-Altitude Limit	“Model Aircraft shall not be operated: (i) at an altitude in excess of 400 feet”	[none]	While 14 C.F.R. § 107.51 proscribes a 400 foot ceiling for Part 107 operations (but not model aircraft), the LCO’s altitude limit only applies to model aircraft.  FMRA § 336 does not regulate altitude for model aircraft.
-Proximity to Airport	“Model Aircraft shall not be operated … (ii) within five miles of Lincoln Airport unless the Airport Authority of the City of Lincoln and the Lincoln Airport Control Tower have been first notified;”	FMRA § 336 (a)(5): “when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation”	FMRA § 336 adds that “model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport))”.  It is curious that the LCO is codified in the Lincoln Airport chapter of its compiled ordinances but does not address such a procedure.
-Line of Sight	“Model Aircraft shall not be operated … (iii) outside the visual line of sight of the operator”	FMRA § 336(c): “’model aircraft’ means an unmanned aircraft that is— … (2) flown within visual line of sight of the person operating the aircraft”	The LCO uses an operational limit and FMRA a definition, but the effect is the same.

You can find the official text in Lincoln’s Municipal Code here.  If you have legal questions about your drone operations anywhere in Nebraska or South Dakota, click “Get in Touch” above for a free consultation.

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[1] Lincoln City Ordinance 20318 § 4 (April 18, 2016).

[2] 14 C.F.R. § 107.

[3] FAA MODERNIZATION AND REFORM ACT OF 2012 (“FMRA”), PL 112-95, February 14, 2012, 126 Stat. 11.

[4] See Lincoln Municipal Code § 1.24.010.

[5] Please note that this analysis does not cover the provisions concerning public aircraft.

[6] Lincoln Municipal Code §§ 4.28.060-4.28.090.

[7] See, e.g., http://elistair.com/.

[8] See https://www.ntsb.gov/legal/alj/Pages/pirker.aspx.

[9] 49 U.S.C. § 40103.

[10] 14 C.F.R. § 1.1.

[11] See 14 C.F.R. § 91.203.

[12] See https://www.documentcloud.org/documents/2673936-Taylor-v-FAA.html .

[13] See 14 C.F.R. §§ 91.137; 91.138; 91.144.

[14] See infra n. 10.

[15] “Aircraft means a device that is used or intended to be used for flight in the air.”

[16] FMRA § 336 also allows for model aircraft larger than 55 pounds if they are “otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization”.

Demystifying the J.D. (or, "Back in the Saddle")

After about a nine-month, hiatus, I've got a little announcement to make.  I'm back.

I had the extraordinary privilege to be graduated from the University of Nebraska College of Law on Saturday.  I think this is the part where I'm supposed to sit back and reflect on this experience, but I haven't done any serious journal-blogging for quite awhile and don't really remember how to do it.  Fortunately, I have a built-in template for this blog that should work swimmingly.

What?

Law degrees are as old as it gets in academia: the first vestiges of the juris doctorate were conferred by 11th-century glossators, schools of law that evolved into the medieval universities. *1 The latin literally means something closer to "teacher of laws," which actually tells you something about my current situation.  I am a Doctor of Laws (and an Esquire), but I am not yet an attorney ("one who is legally appointed to transact business on another's behalf") because no state has yet given me permission to handle other people's legal rights. *2 Phrased differently, I have more legal knowledge but no more legal power than my mom. *3 This is why not everyone with a J.D. actually takes the bar exam; there are an awful lot of jobs out there for which a bar certification is just superfluous.

To become an attorney, I have to pass some state's bar exam, which is typically two eight hour days in length.  To pass the bar, I'll have to study everything I learned the last few years and even learn some new material I didn't have time to cover.  Because this is America, there are half a dozen companies willing to sell you this kind of boiled-down legal education.  I'll be getting very familiar with Barbri over the next few months.

When I pass the bar (fingers crossed), the state will certify me to represent the legal rights of my clients.  As my Legal Profession professor likes to say, attorneys are "super-fiduciaries" because we are ethically disallowed from representing anybody adverse to our client.  We're exclusively indentured servants in a world of conflicting legal interests.  People go about this in ways ranging from verbal attack dog to gentle wordsmith, but the tie that binds is faithfulness to one person or group against all comers.  I did not have any real understanding of this concept when I came to law school, and I'm sure I will spend the next several decades wrapping my head around it, but I have to admit to feeling both excited and terrified to look out for people in this way.

When?

In the US, a law degree is a three-year post-undergraduate doctoral-level overly-hyphenated program.  It is sometimes combined with other degrees, like an M.B.A., M.P.H., M.D., Ph.D., or even an M.Div.  A conventional three-year program typically ends in May, and most states offer a bar exam in August and in February.  Those months are ostensibly to give people time to do all the bar prep coursework I mentioned in the last section.

Where?

Ok, I'll brag a little here.  I attended the University of Nebraska College of Law, which is ranked #56 overall and #2 in value in the United States.  The core of that value comes from Nebraska's combination of insanely talented and well-accomplished faculty and extremely reasonable tuition and fees - I would bet that my average classmate spent less than half as much on law school as they did on their undergraduate degree.  That's a really big deal, as the law school machine is notorious for trapping people in a cycle of debt, crazy jobs, and burnout.  Attending a school you can actually afford isn't just a sound financial decision: it's a good idea for personal and professional reasons, too.  I received a rigorous, well-rounded, and challenging education in my hometown of Lincoln, Nebraska, and had a lot of fun in the process.  Lincoln is blowing up right now, and while I'll be sad to leave it behind I'm excited about my next opportunity (stay tuned).

Who?

I was definitely surprised by the academic diversity of my law school class, but I probably shouldn't have been.  Of course, you run into plenty of political science, history, or English majors, but you'll also find an awful lot of people who studied anthropology, biology, chemistry, divinity, engineering, finance, German, humanities, international affairs, journalism, kinesiology (ok...I'm stretching), linguistics, music, nursing - you get the idea.  The unifying factor is that everybody at this level did something well at an undergraduate institution and/or a career: how you did means much more to law school admissions folks than what you did.

This is "how, not what" mentality is reflected in the LSAT, the standardized test the schools use to rank their applicants.  There is not one iota of substantive knowledge you need to bring into that test, unless you count the English language: unlike other exams, it is purpose-built to test your aptitude to apply the information they give you accurately and efficiently.  This means that anyone with the desire and ability to learn quickly can theoretically be a great lawyer.

Love you guys. Also, I was serious - undergrad majors from left
to right: biology, finance, political science, nursing, music.

I was also surprised by the character, humor, and camaraderie I found among my classmates.  I was proud to stand beside them as I received my diploma, and I look forward to watching them become leaders in the legal profession and society in general.  If lawyers turn out to be rotten people, they certainly do not start that way.

How?

There are basically three camps of "lawyers:" non-attorneys, transactional attorneys, and litigation attorneys.  These people use their degrees in very different ways.

What I'm calling non-attorney lawyers are those who use their J.D. but lack or don't use their bar certification.  These folks might be in anything from management to ministry, jobs that are sometimes called "J.D. Advantage" (rather than J.D. Required).  These folks do not technically practice law, but they find ways to apply the skills and knowledge they pick up in law school.

Transactional attorneys are those who use both a J.D. and a bar certification but do not handle civil or criminal lawsuits.  They draft contracts, keep folks updated on changing law, handle regulatory compliance, and perform other non-adversarial functions.  Actually, you could call them anti-adversarial functions: a good transactional attorney adds value by saving her clients future legal fees by avoiding litigation.  The stereotypical transactional attorney spends most of his time writing, but verbal communication within or between organizations can also be crucial skills.

Litigation attorneys are what most people probably think of as the prototypical lawyer: the folks who defend or prosecute their clients' interests in civil or criminal lawsuits.  I can't find any good figures at the moment, but my understanding is that these folks are actually well in the minority compared to non-attorneys and transactional attorneys.  This is the anywhere, anytime job in the legal profession: hours are long and variable in courtrooms, law offices, police stations, prisons, and just about anywhere in between.  Litigators use their degree to draft motions and correspondence, conduct discovery, and speak in court.

Importantly, these are not mutually exclusive categories: some (if not most) attorneys cross between them on a daily basis.  The employers are also widely varied - companies, law firms, individual clients (for the solo practitioner), governmental entities, agencies, private institutions, non-profits, and the list goes on.

Why?

We have a problem in this society.  Believe it or not, lawyers are the solution.

On the one hand, everybody is bound by the law.  The only way to keep the rules relevant is to enforce them.  Everybody therefore theoretically needs to know the law so they can know how to avoid breaking it, or how to seek justice when somebody else breaks it.  We also have rules about how we enforce the rules (things like civil or criminal procedure and evidence), and everybody needs to know those rules in order to ensure they get a fair shot in court.

On the other hand, we don't have time for everybody to go to law school.  Trust me.  As a society, we need the vast majority of people to do something else - grow food, fly airplanes, perform surgery, teach children, etc.  Unfortunately, all those people are still governed by the rules because they have the capacity to put other people at risk every time they fertilize, pilot, suture, or even speak.  Some people choose to take their legal rights in their own hands (called "pro se" representation), but this is generally a bad idea even for lawyers because the emotion and passion that comes in trying to vindicate oneself can be blinding even if you have the knowledge.  As one potent potable puts it, "a pro se litigator has a fool for a client."

This is where attorneys come in: we're on-call advisers who dispassionately distill the law down into what a client needs to know, when they need to know it.  My favorite explanation is simple: look the client in the eye and explain why "if you knew what the law says you're supposed to know, you'd do X."  For some clients, that advice is all they seek.  If they want to give us the discretion to act accordingly on their behalf, they can, but that is their choice because it is their life, freedom, or stuff on the line.  In that way, it's not terribly different from medicine: you're perfectly within your rights to remove your own appendix, but it's generally advisable to get some help.

That's it.

I'll still be busy this summer, but I'll be firing up your regularly scheduled programming next week.  Watch for weekly-ish articles, and keep up with me on Twitter or Facebook.  'Til then!

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*1: A History of the University in Europe: Volume 1, Universities in the Middle Ages, Cambridge University Press, 1992, ISBN 0-521-36105-2. Wikipedia.

*2: Webster.

*3: Happy Mother's day!

The "L" word: Demystifying Liability

In an op-ed in the New York Times, Damien Fowler recently offered some thoughts on "The Dangers of Private Planes."  I'm not going to go into the questionable accuracy of his statistics, or the fact that this may be a ploy to sell more copies of his book, but the article does bring up one serious and under-considered issue among GA pilots: liability.  This will be the first "Demystifying" article to try and explain some tricky legalese in plain English.  Please remember that Jacob is NOT (yet) a lawyer and this site DOES NOT offer legal advice.  If you need a legal opinion, go get a real lawyer. (*1)

What?

In legal terms, liability is "The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment." (*2)

Huh?

Yeah, it can be confusing to lawyers, too.  In fact, that same legal dictionary entry cross-references 32(!) specific types.  We won't go through them all, but there are a couple of general things you need to know.  First, liability always means that a person (let's call him Andy) owes something to either an individual (Bob) or society as a whole (Country). (*3) Second, liability isn't a suggestion; Bob or Country have a right by law to extract whatever money, time, or other resource Andy owes them.  That right really means something: in most civil cases, Bob can sell it for cash to a willing buyer just like any other asset.  In every criminal case, it gives Country the right to throw Andy in jail (or enforce some other penalty).

So...what makes Andy liable?

There are a whole lot of ways to get there, but there are the three main ones you usually learn in your first year of law school.

1. Contract. "Sell you my horse for $125," Andy says.  Bob shakes his hand and beams, "contract say we all." (*4) Bob is now liable to Andy for $125, and Andy likewise owes Bob a horse.  The necessary pieces of any contract are an offer, an acceptance, consideration (basically a price), and (sometimes) a writing that satisfies the statute of frauds. (*5)
2. Tort.  If Andy steals Bob's plane (and Bob can prove it in court), Andy is liable to Bob for the cost of that plane. (*6)
3. Criminal.  If Andy steals Bob's plane, and Country proves it in court, Andy owes Country jail time.

Wait...Andy's liable to Bob and Country for the same theft?

Yeah, though he owes them different things.  With a few exceptions, Andy's going to owe Bob money and Country time.  These are called civil and criminal penalties, respectively.  Those categories break down on occasion - Andy could owe Bob labor (specific performance) or Country money (fines, civil forfeiture, etc...) - but those are your general silos.

"I can't stall. I'm on a mission from me."

Who?

Do I need to be worried about this?

Yes, unless you're sinless.  Liability is the only reason most lawyers ever have any business, and as you've probably heard it said, everyone needs a good lawyer at least once in his or her life.  Liability doesn't always depend on intent; sometimes it doesn't even require any particular mental state.

Where?

So Bob can just take Andy's money?

Not exactly.  Liability is different from cash in hand in that you can't legally use force to make a debtor cough up that cash.  Only society has that authority, so Bob has to go through the civil court system (usually some kind of State court) to get a "judgment" against Andy.  Lawyers call this "civil procedure," and there are a jillion rules about how and how not to do it.  If Bob does end up getting a judgment in his favor, Andy's resources can be forced away from him by the court's authority under penalty of indefinite jail time.

It works roughly the same way on the criminal side: Country can't just throw Andy into prison because it thinks Andy did something wrong.  Instead, it has to prove to a court that it has a good reason for charging Andy, and then has to actually haul Andy into court to sort the whole thing out.  That's "criminal procedure."

One major difference between the two is that criminal (but not civil) defendants have a constitutional right to legal counsel, which the court can appoint to that defendant.  That means Andy has a right to a lawyer when Country comes after him, but not when Bob does.

When?

Is there something I can do before this all goes down to save my skin?

You bet.  There are two steps every pilot ought to take to cut down on the potentially catastrophic effects legal liability can have on your life.

First, reduce your risk.  Yes, I'm serious: the best way to avoid liability is to avoid liability, and we all know most accidents have pilot error as a primary factor.  There are a jillion ways to do this, but here are a few ideas you should take seriously:

1. Make good decisions on the ground.  Know your weather, terrain, fuel/endurance, and other operational limits and stick to them.  Have a plan for the foreseeable.  Above all, know thy airplane.  If you listen at all to The Finer Points, you may have heard Jason Miller's philosophy on pre-flights; approach your inspection assuming there's some reason your bird can't fly, and make it your mission to find it.  If you fail, you may proceed.
2. Make good decisions in the air.  I know I'm not the only pilot who chuckled the first time he hear Aeronautical Decision Making (ADM) was an actual portion of ground instruction, but it's serious stuff.  Specifically, consider your pneumonic devices and whether you can actually run through them in a pinch.  Get yourself into a simulator and see how you do with various system failures or emergent weather.  If your pneumonics fail you, work out the kinks or find something else - I'm a fan of visual or tactile flows.
3. Use SOPs.  I promise The Finer Points hasn't paid me to do any advertising here, but Jason has an ebook out that talks a lot about this.  Standard operating procedures are a huge part of what helps airlines achieve a safety record more than two hundred times better than their general aviation counterparts, and constantly reevaluating your SOPs is as important as using them.
4. Maintain your proficiency, not just your currentness.  Don't get in the air (or let anyone else get you in the air) unless you feel totally confident in your ability to get back down.  There are all kinds of "rusty pilot" resources available if you haven't done it for awhile, and CFIs are always happy to give an extra check-up.  If you're in an area with challenging terrain or regular visibility issues, consider some aerobatic or instrument training.  You'll enjoy the challenge and become an all-around better pilot.

Second, buy some sensible liability insurance.  No, your FBO's rental insurance is not enough.  I'll probably be doing another article to demystify insurance for pilots in the future, but you know the basics: you pay a company money each month/year/whatever in exchange for their promise to pay if someone makes a claim against you.  On its face, that's a very simple contract.  In reality, of course, it gets stickier.  You can't buy criminal insurance for reasons that should be pretty obvious, but you can buy all the civil liability insurance you want from anyone willing to bear the risk that you'll actually come a-calling.

How?

So what does all this have to do with that NYT article?

Fowler spends most of the article lambasting the safety record of General Aviation with questionable figures, but does offer an intriguing proposition: what if having liability insurance actually makes pilots safer?  His basic argument is that insurance companies are harder on pilots than the FAA, and higher standards make for safer pilots.

Regardless of the merits of that argument in the context of aviation, insurers in other sectors seem to believe they can reduce the claims made by or against the people they insure by modifying their behavior.  You see this fleshed out in safe driver discounts, Progressive's Snapshot program, Farmers' 15 Seconds of Smart ads, wellness programs, and a host of other means.

Manufacturers have also gotten into this game, especially with high-performance and homebuilt aircraft.  They've realized that it's cheaper to train pilots and give them a discount on their insurance than to insure them without that additional training.  The hyped-up concern around those aircraft may or may not be overdone, but if too much caution saves one life, the juice is worth the squeeze.

Why?

I only fly solo, in clear weather, over perfectly flat terrain, immediately after complete inspections, in unpopulated areas.  Why should I care?

First of all, you're a liar.  Nobody's perfect, and mistakes are as much a part of aviation as any other facet of human life.  We all know this, but there's something about also knowing we can lurch a heavier-than-air machine into the clouds and bring it back again that makes us pilots feel like saints, or maybe wizards.  You should care because you have made and will continue to make mistakes, and just because they have been cheap so far doesn't mean they'll stay that way.

Second, you should care because liability doesn't just affect you.  Depending on your financial planning, family situation, business organization, and a host of other factors, incurring a big financial burden on yourself could put the people around you into debt if you don't have an insurer lined up to step in.

Third, you should care, but you shouldn't let that worry drive you from aviation.  We all know or learn the risks of this passion through our observation, training, and pilotage, and while we can continue to improve there will always be something inherently risky about sitting thousands of feet above the surface of the earth.  Responsibility makes the world go 'round, but a life lived out of fear is no life at all.

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*1 If you are an aviation lawyer and want to advertise on this site, please let me know.  I am a poor law student and will plug you shamelessly.

*2 Black's Law Dictionary 997 (9th ed. 2011).
*3 Technically, Bob could be a couple of people, or a partnership, or a corporation, or anybody else that's not "society."  You get the idea.  I'm pushing civil/criminal here, not individual/collective.
*4 Shamelessly stolen from papa Works' entire first year Contracts class.  I'm proud to be a disciple.
*5 I'm not going to explain the statutes of frauds, but they do matter.  Basically, they mean that certain kinds of contracts have to be in writing or there's no deal at all.
*6 Again, I'm not going into replacement cost, fair market value, or any of that.  Ask a lawyer.

"Holding Short, Highway 35"?

If you listened all the way to about 4:10 in the video from my first post in the "Flying Cars" series, you may have heard Richard Gersh talk about one of the challenges facing his company's first production flying car: due to the regulatory separation between cars and planes, the Transition really has to live up to its name to go from byway to skyway.  The switch from car to plane doesn't take long, but it does require the pilot (not driver) to stop the vehicle, turn off the engine, and get out to do a normal pre-flight check.  As he says in the video, you need to find an actual runway to go airborne anywhere but Montana or Alaska.  Re-read that last sentence.  The vehicle doesn't fly that much faster than it drives, but claiming it could fly its way over a traffic jam in those two states was what really perked up my legal antennae.  I wondered where Gersh had gotten that idea, and Terrafugia was kind enough to give me a few minutes to ask him about it. *4

Gersh was quick to point out that this is not an intended SOP for this bird.  The switch has to happen on an airfield, and the wings should never be down on a roadway except in an emergency.  The main uses for driving the Transition will be getting to and from the airport, dodging inclement weather, and getting bizarre looks from other drivers.  The first two are no joke: hangar fees are high and climbing, and a quarter of all weather-related accidents are fatal.  Ok, enough with the disclaimer - let's get to the fun stuff.

On the state side of things, Gersh told me the bit about Alaska and Montana was something they'd been told anecdotally and wasn't too sure about the regs.  It's entirely plausible that the bush pilot capitol of the US and the only State with (at one time) no speed limit on some of its roads would be open to that kind of thing, but I'm slowly developing a need for written rules.  I dug into this problem a bit and found that many of the state and local governments that regulate most of the roadways in this country have actually had the foresight to deal with whether they may be used as runways.  Click here for a table with the statutes I've been able to compile so far, and feel free to shoot me an email if you know about regulations I've missed or mischaracterized in your state.  They fall into roughly four categories: free use (within local rules), use by permission, local ordinances authorized, or no use at all.  The "by permission" category leads the race right now.  States have gotten pretty creative in highway/runway enforcement on a couple of occasions, like the time a Minnesota State Trooper found a pilot and landscaper's aircraft intentionally parked on a roadside, advised the pilot that he would be cited for driving an overly wide vehicle, and allowed him to take off using the highway as a runway. (*3) Regardless, even states like Montana and Alaska don't seem to have put these rules to much use yet.  Props to those states that have seen this coming - all eyes will be on them to see how they handle tomorrow when it arrives.

Shown here over a perfectly tolerable commute.

On the federal side, when it comes to the airspace necessary for highway takeoffs and landings, the FAA has been a bit vague.  In a response letter to Jeff Buckholz of Buckholz Traffic, the agency seemed to indicate (*1) that it would treat the Transition just like any other "device that is used or intended to be used for flight in the air" in that takeoffs and landings would be governed by 14 C.F.R. 91.13 and 91.119.  As with any aircraft, pilots would be prohibited from operating the Transition "in a careless or reckless manner so as to endanger the life or property of another" under § 91.13.  § 91.119 prescribes minimum safe flight altitudes, and the combination of those sections would presumably ban my hypothetical traffic dodging except in emergency landing situations. (*2) The FARs also define an Airport as "an area of land or water that is used or intended to be used for the landing and takeoff of aircraft," so the FAA would presumably treat a state-owned roadway sanctioned for use as a runway (and lying under uncontrolled airspace) like any other uncontrolled grass strip.  I haven't yet looked into how recreational use statutes would fit into this framework, but I'll be doing an article on those in the next month or two.  Stay tuned.

In short, this is all uncharted water and it's tough to know how it will all shake out.  A few states seem to be open to the possibility of using their roadways as runways, and the FAA has not done anything to indicate they couldn't.  This will certainly be a fun field to watch.

All that said, Terrafugia's next project, the TF-X, blows these regulatory questions out of the water.  As Gersh said in the interview, this really is a Jetson-like machine, and their aspirations for its operation are nothing short of science fiction.

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*1 Dep't of Transp. (D.O.T.) Fed. Aviation Admin., 2011 WL 3557314 (D.O.T. Aug. 8, 2011). You'll need a subscription to access it on Westlaw.
*2 See, e.g., Administrator v. Schwandt, 7 N.T.S.B. 1375 (1991) (finding that a pilot who landed his aircraft while other people were in close proximity to the landing site operated the aircraft in a careless or reckless manner); Administrator v. Hart, 6 N.T.S.B. 899 (1988) (finding that the minimum-altitude-flight regulations are violated when an aircraft descends in order to land at non-suitable landing site); Administrator v. Mollis, 2 N.T.S.B. 43 (1973) (finding that a pilot violated the pertinent regulations when he made a decision to land on a highway, which ultimately resulted in his aircraft colliding with a truck).
*3 State v. Sherbrooke, 633 N.W.2d 856, 859 (Minn. Ct. App. 2001).
*4 It was an absolute treat to talk to Richard - many thanks to Terrafugia for setting up the interview.  I'll be using other portions of this interview throughout the rest of this series.

Demystifying the Pilot's Bill of Rights

First off, an apology: last week was a finals week for this law student, and the blog had to take a back seat.  We'll be back to the regular Thursday morning article starting this week.  Moving on...

Credit: AOPA

You may have seen some buzz recently about the second version of the Pilot's Bill of Rights being proposed by Sen. James Inhofe (R-Okla).  As a (nearly) third year law student and recently minted pilot, I was a little surprised I'd never heard of the first version.  If you're in that boat, fear not: this week, I'll take you through the 2012 version and touch on the changes the general aviation community seems to be endorsing in version 2.0.

What?

So you're saying we actually amended the Constitution to protect pilots' rights? 'Merica!

Eh...not quite.  The Pilot's Bill of Rights isn't exactly on par with the "real" Bill of Rights in that sense, but it is a real law that really does affect the rights of pilots.  You can read the first version in its entirety here.  The rule did four distinct things:

1. Force both parties to use the Federal Rules of Evidence and Civil Procedure in any proceedings under 49 C.F.R. Part 821(C, D, or F) whenever practicable.  These subsections cover reviews and appeals of Administrator actions concerning pilot certificates.
2. Except where it would threaten the integrity of the investigation, require the FAA to tell the person under investigation:
• The nature of the investigation
• That he or she doesn't need to respond to the notice
• That a response to the notice can be used as evidence against him or her
• That the administrator's report will be available to him or her
• That air traffic data will be available to him or her
3. Require the FAA to implement the "NOTAM Improvement Program" within 180 days.
4. Require the Comptroller general to evaluate the FAA's medical certification process.

There are a lot more details, particularly about the air traffic data available to the person under investigation.  This was done in response to 

You can read the full bill from Sen. Inhofe's website.  Here's my highlight summary:

1. Orders the FAA Administrator to expand the 3rd Class medical exemption to the operations and aircraft described in H.R. 3708 within 180 days.  The FAA would only be able to take enforcement action for medical violations if the FAA passes such rules in that time period.
2. Reigns in some of the Customs and Border Parol practices that have come under very sharp criticism in the law few months.  Specifically, CBP will be prohibited from stopping and searching GA aircraft unless they have an articulable, reasonable suspicion of illegal activity or probable cause to believe that illegal activity is occurring.  Flying without a flight plan, flying into or out of fringe general aviation airports, or flying a flight path that is not a straight line for specified piloting or navigation reasons do not qualify for those grounds, but these rules are out the window in the event of an accident.
3. Knocks out FAA control over appropriate usage of private built and owned hangars at airports receiving federal aid by directing the FAA Administrator to give local airport authorities that control.
4. Amends the original Pilot's Bill of Rights:

• Clarifies that appeals are not subject to exhaustion of administrative remedies.  This means pilots can appeal enforcement actions to U.S. District Court at any time.  Also clarifies that these appeals to Article III courts are to be de novo and the Administrator is to bear the burden of proof.
• Expands the Bill's protections to all certificates issued by the FAA.
• Requires the FAA to provide notification to an individual once they become subject to an FAA investigation in order to press charges.
• Limits the scope of FAA document requests of certificate holders to the pertinent issues under investigation.
• Brings back the FAA’s expungement policy which prevents the agency from retaining records of enforcement against an airmen certificate holder for 90 days if the agency does not take enforcement action or 5 years if it does.  It also prevents the FAA from publicizing pending enforcement actions against a covered certificate holder.

Why?

Is this really necessary? 

Shown here riding in to save the day
on his orange stallion.

Some of it is, but some of it is more like political positioning.

Sen. Inhofe is very anti-Washintonian in his political approach, and being the knight in shining armor to save the damsel in distress from the draconian agency suits him like a storybook.  The direct appeal to U.S. District court falls closer to this category because the FAA's enforcement actions are already subject to judicial review; the new bill gives pilots facing enforcement more options as to how they proceed, but it doesn't dramatically affect their likelihood of success.

On the other hand, there really are some significant issues that the revamp seeks to cure.  The two biggest-ticket items at the moment are 3rd Class Medical certification and the overly intrusive and unjustified stops by CBP (see the summary above).  These have both been all over the news in the U.S. aviation world - if you're unfamiliar with either, feel free to get googling.  I'll also be doing pieces on each in the near future.

Who?

Who's this Inhofe character anyway, and why does he care?

Sen. Inhofe is a CFI with over 10,000 of experience.  He has been through FAA enforcement for landing at a supposedly closed airstrip with a Cessna 340, despite the fact that there was no NOTAM. You can read about the experience here.  Whatever his faults, he is a diehard aviation advocate and this has become one of his pet issues.

So you're telling me that every alphabet soup pilot group out there supported this thing?  Sounds fishy to me.

You're not alone.  The bill did receive some considerable backlash from some general aviation journalists and advocates, but the majority seemed to favor the changes.  This revamp seems to have similar support.

How?

But Congress never gets anything done these days.  How the heck are they going to pass something like this?

Actually, Congress has a pretty decent track record of coming together when it comes to recent aviation legislation.  Check out the Small Plane Revitalization Act or FAA Modernization and Reform Act for starters.  Heck, the original Pilot's Bill of Rights was passed unanimously by the Senate, by a voice vote in the House, and immediately signed by the President in the middle of 2012, an extremely politicized and divisive election year.  This one (when it's proposed) and H.R. 3708 will be the bills to watch.

When?

So if this does happen, when will I see a change? 

Sen. Inhofe hasn't yet said when he'll drop the bill in the hopper, but we'll pick up a tracker button on the home page when he does.  If it does pass, we should see changes within 180 days from the FAA on the 3rd Class Medical and immediately on everything else.