> our title:

A Response to FAA’s “Myth Busting” Document

> original title:

Busting the FAA’s “Myth Busting” Document (excerpt)

(Source: The Drone Law Journal; posted Feb 27, 2014)

On February 26, 2014, the FAA published on its website a document entitled, “Busting Myths about the FAA and Unmanned Aircraft.” It purports to dispel “common myths,” and provide “corresponding facts.” It does neither.

In fact, it’s no more than a rehash of what the FAA has been falsely claiming all along. It again cites no relevant federal statutes, federal regulations or case law to support its claims. Because there aren’t any.

Now let’s tear this meaningless document apart, “fact” by “fact.”

Myth #1: The FAA doesn’t control airspace below 400 feet

Fact—The FAA is responsible for the safety of U.S. airspace from the ground up. This misperception may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground

Nonsense. It is clearly established by both statutory and case law that the FAA’s authority over airspace is limited by statute to navigable airspace, which is defined as, “airspace above the minimum altitudes of flight . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” 49 U.S.C. § 40102(a)(32). The “fact” above asserts that the FAA has authority over all “airspace from the ground up,” which would include your backyard— from the tips of the blades of grass, upwards to infinity.

If what the FAA is now claiming is true, that would amount to what’s known as a “taking,” more specifically a regulatory taking by the federal government. And the Fifth Amendment to the U.S. Constitution requires the government to compensate those who property it takes. So if what the the FAA is claiming is fact, (don’t get your hopes up because it’s not), the United States would owe all property owners a whole lot of money.

As the FAA’s attorneys know, (as well as any law student), long ago, the U.S. Supreme Court established this as being entirely untrue. In United States v. Causby, 328 U.S. 256 (1946), the Court held that a property owner, “owns at least as much of the space above the ground as he can occupy or use in connection with the land.” It should be noted that the FAA fails to (and cannot) cite any federal statutes or regulations or any case law to support this supposed “fact” because none exist. (end of excerpt)

Click here for the full story, on the Drone Law Journal blog.