Would you support a lawsuit over Remote ID?

[Chip]

Brett, my apology, when I said saddle up I forget to add we make our break at sunrise. You are a few hours ahead and I did not want to sound unreasonable! May as well sleep in now. But, one final thought if I may.

The FAA responded to a Freedom of Information Act (FOIA) request by stating it had no records of any UAV risk assessment that would necessitate the regulations.

https://jrupprechtlaw.com/wp-conten...ssessment-foia-no-records-determination-1.jpg
https://jrupprechtlaw.com/wp-conten...ssessment-foia-no-records-determination-2.jpg

If the FAA is attempting to justify Remote ID to any degree on grounds of public safety, then it should have supporting data or evidence of the risk it is attempting to address. Otherwise, the regulation may be invalidated by a court as arbitrary and capricious or being unsupported by substantial evidence. These are normally relatively low bars for an administrative agency to clear but the FAA's FOIA response may be leading edge of the wedge.

Reference: Section 706(2)(A) of the Administrative Procedure Act (APA). May be found at:

5 U.S. Code § 706 - Scope of review

www.law.cornell.edu

The federal statute governing court review of administrative agency action says that the court shall:

Hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

 

[anotherlab]

If the FAA is attempting to justify Remote ID to any degree on grounds of public safety, then it should have supporting data or evidence of the risk it is attempting to address. Otherwise, the regulation may be invalidated by a court as arbitrary and capricious or being unsupported by substantial evidence. These are normally relatively low bars for an administrative agency to clear but the FAA's FOIA response may be leading edge of the wedge.

I don't think that argument would prevail. Between the conviction of the guy in CA who crashed into a police helicopter and the guy from Staten Island who crashed into the Army helicopter, there is enough public evidence for the FAA to use.

Any attempt to beat the FAA on a technicality would end up with the FAA addressing the technicality and then moving forwards

The responses to the FOIL request stated that the evidence were not FAA records and not in their possession. If they were referencing NTSB documents, those documents would be in the possession of the NTSB, not the FAA.

The Ex Parte argument will not work either. While Ex Parte meetings typically prohibited, there are allowable uses. While a judge has latitude in deciding if an Ex Parte meeting would affect a trial, this typically only comes into place with criminal proceedings. Even Rupprecht is referring to it as "kind of illegal" and he has not suggested that Ex Parte would provide any agency for changing the Remote ID policy.

 

[brett8883]

I don't think that argument would prevail. Between the conviction of the guy in CA who crashed into a police helicopter and the guy from Staten Island who crashed into the Army helicopter, there is enough public evidence for the FAA to use.

Well how would Remote ID have prevented those incidents? sUAS aren't allowed to use ADS-B out so there is no way for manned aircraft to locate UAVs with the FAA's implementation of RID.

I checked the NTSB database for all incidents involving small unmanned aircraft from 1/1/2010-1/27/2021. There are only 3! Let me say that again there are only 3! Only one resulted in a minor injury and a different one resulted in minor damaged to a manned aircraft (the army helicopter incident you reference.) There is no reported incidents in California and no reports involving a police helicopter.

No serious injuries nor serious damage to manned aircraft have ever occurred due to a sUAS. This is despite 385,000 aircraft having been registered to the FAA by 2019 Clearly there isn't enough data to suggest anything but to continue what we are doing if this is how well it is going!


In contrast there were 12,958 incident involving General Aviation aircraft in the United States during the same time period.
2298 of those incidents were fatal, having at least one fatality including one as recent as 1/12/2021 in South Carolina!

An additional 1459 incidents had a serious injury but no fatalities.


Yet General Aviation aircraft do not have to transmit their location in class G airspace but UAS do! It's madness!!!

 

[Chip]

The Ex Parte argument will not work either. While Ex Parte meetings typically prohibited, there are allowable uses. While a judge has latitude in deciding if an Ex Parte meeting would affect a trial, this typically only comes into place with criminal proceedings. Even Rupprecht is referring to it as "kind of illegal" and he has not suggested that Ex Parte would provide any agency for changing the Remote ID policy.

Did Anyone Do Anything Regarding Telling the FAA About This Remote ID Ex Parte Fest?

Rupprecht answers this question as follows:

The issue is the ex parte broke out AFTER the comment period closed. Did anyone tell the FAA about this? Well the FAA attorneys knew. We didn’t have to tell them. (Kathryn Inman who is an FAA attorney was the author of the PDF for the secret FBI academy dem0. That’s why the FAA posted to the docket TWICE to appear like they were complying with the regulations. ( FBI academy remote ID demo and the letter to all the tribal leaders.)

The blog includes a letter by Tyler Brennan of RaceDayQuads LLC which he submitted following a meeting with OIRA, FAA, and DOT. As Rupprecht puts it, Tyler’s letter "is helpful in understanding why ex parte is really bad:"

Tyler Brennan addresses the ex parte problem:

This is being submitted as it relates to the FAA’s rulemaking activities in adopting a Final Rule based on the NPRM published on December 31, 2019 that provided for public comment until March 2, 2020 but otherwise denied an extension of that comment period.

The FAA has repeatedly engaged in ex parte conversations, meetings, and other communications with the public, government entities, and businesses on the subject of the rulemaking after the NPRM was filed. These activities suggest that communications made privately may or will influence the agency in its Final Rule.

These communications, whether or not having actual influence, prevent the public from being able to reply effectively to the information that was presented privately to the FAA so the FAA could make a fully informed decision affecting the safety and security of the national airspace. It is possible someone in the public could have pointed out some serious life-threatening safety and security flaws that were not previously identified and to forgo this opportunity is arbitrary, capricious, and an abuse of discretion.

Furthermore, the Administrative Procedures Act and the Due Process Clause requires notice; however, we have no notice of what has been presented to the FAA or relied on privately by the FAA which made its way into the final rule.

Not disclosing everything creates the appearance there is one administrative record for the public and this court and another for the FAA. The mere appearance of ex parte raises questions as to whether the final rule was based upon public comments or secret meetings and secret documents. The FAA just needs to make some public argument for the reason why they arrived at their decisions while keeping secret the true primary reason. Communications outside the record seriously frustrate any meaningful judicial review as judges will not ever know what was really relied upon in deciding. This also frustrates any review under the Congressional Review Act.

This raises serious questions of fairness. The undermining of the fairness of the rulemaking process erodes the FAA’s ability to protect the safety of the national airspace. Many individuals will feel victimized and disenfranchised and therefore justified in not complying with the rules. How is anyone supposed to respect the FAA when the FAA is clearly violating their own rulemaking procedures?

Such improper and unfair ex parte contacts include, but are not limited, to the following actual related out-of-record contacts: the remote ID cohort, the secret meeting at the FBI Academy, and Jay Merkle’s presentation at the Drone Advisory Committee.

The final shaping of the rules may have been by compromised among the contending industry forces, rather than by exercise of the FAA’s independent discretion for the public interest.

We are asking that the FAA pause the rulemaking, disclose all of the ex parte events with summaries of those discussions, disclose all of the ex parte documents, allow the public to comment, and then proceed ahead.


RaceDayQuads Founder & CEO, Tyler Brennan

 

[anotherlab]

Well how would Remote ID have prevented those incidents?

Remote ID doesn't prevent any incidents. It allows LE and first responders to identify pilots that are flying drones that are preventing LE and SAR aircraft from approaching a location. When people see how quickly rogue pilots can be identified, that will serve as a deterrent to future incidents.

 

[anotherlab]

This raises serious questions of fairness. The undermining of the fairness of the rulemaking process erodes the FAA’s ability to protect the safety of the national airspace. Many individuals will feel victimized and disenfranchised and therefore justified in not complying with the rules. How is anyone supposed to respect the FAA when the FAA is clearly violating their own rulemaking procedures?

Such improper and unfair ex parte contacts include, but are not limited, to the following actual related out-of-record contacts: the remote ID cohort, the secret meeting at the FBI Academy, and Jay Merkle’s presentation at the Drone Advisory Committee.

The final shaping of the rules may have been by compromised among the contending industry forces, rather than by exercise of the FAA’s independent discretion for the public interest.

We are asking that the FAA pause the rulemaking, disclose all of the ex parte events with summaries of those discussions, disclose all of the ex parte documents, allow the public to comment, and then proceed ahead.

None of that changes what has already happened with the Remote ID rule.

 

[Chip]

None of that changes what has already happened with the Remote ID rule.

No it doesnt change what has already happened. But it could be the thin edge of the wedge which invalidates all or portions of the regulations in a court challenge and there may be other significant adverse consequences just like Tyler said:

The undermining of the fairness of the rulemaking process erodes the FAA’s ability to protect the safety of the national airspace. Many individuals will feel victimized and disenfranchised and therefore justified in not complying with the rules. How is anyone supposed to respect the FAA when the FAA is clearly violating their own rulemaking procedures?

 

[anotherlab]

No it doesnt change what has already happened. But as I said before, it may be the thin edge of the wedge which invalidates all or portions of the regulations in a court challenge and there may be other significant adverse consequences just like Tyler said:

The undermining of the fairness of the rulemaking process erodes the FAA’s ability to protect the safety of the national airspace. Many individuals will feel victimized and disenfranchised and therefore justified in not complying with the rules. How is anyone supposed to respect the FAA when the FAA is clearly violating their own rulemaking procedures?

The problem with that approach is that it will not invalidate any portion of the Remote ID regulation. You can have evidence or testimony struck from a criminal proceeding if it can be proven that it was admitted based on Ex Parte communications.

This isn't a criminal proceeding.

The original post of this thread was over the viability of a lawsuit with the FAA over the Remote ID regulation. Litigation should always be the last resort. Wouldn't it be better to work with the people on the FAA Drone Advisory committee and try to affect change from the inside? You could join Vic Moss's Drone Service Providers Alliance (Drone Service Providers Alliance)

 

[brett8883]

The problem with that approach is that it will not invalidate any portion of the Remote ID regulation. You can have evidence or testimony struck from a criminal proceeding if it can be proven that it was admitted based on Ex Parte communications.

This isn't a criminal proceeding.

The original post of this thread was over the viability of a lawsuit with the FAA over the Remote ID regulation. Litigation should always be the last resort. Wouldn't it be better to work with the people on the FAA Drone Advisory committee and try to affect change from the inside? You could join Vic Moss's Drone Service Providers Alliance (Drone Service Providers Alliance)

Are you a lawyer? Cause we have a lawyer that is an expert in aviation law saying this is applicable so I don't really understand what you mean.

 

[brett8883]

@Chip I think we should contact Jonathan Rupprecht and just see what his take is and how we can help. If he thinks it would be helpful we could set up a way to collect donations to give him to further this cause. He's the right guy to be the face of this thing and we already have 75 people saying they are willing to donate in this thread alone. I've got other outlets I can access and with Johnathan Rupprecht at the helm I think we could raise a lot of money for him if this is what he is doing.

What do you think?

 

[anotherlab]

Are you a lawyer? Cause we have a lawyer that is an expert in aviation law saying this is applicable so I don't really understand what you mean.

I have stated in other posts that I am most definitely not a lawyer.

If you are referring to Rupprecht, where does he say that litigation would be a viable means to changing the Remote ID regulation? He says that Ex Parte is "bad", but where did he say that it could be used to change the regulation? I respect Rupprecht and his legal opinions, but you and I are coming to very different conclusions from what he has written. It would probably be worth your time to arrange a consultation call with Rupprecht.

My point is that litigation would be the least effective and most costly means of trying to affect any change with the Remote ID regulation.

 

[brett8883]

If you are referring to Rupprecht, where does he say that litigation would be a viable means to changing the Remote ID regulation?

Yea I’m not clear on that either.

 

[anotherlab]

Yea I’m not clear on that either.

You might want to ask him for some clarification by asking some questions via a comment on the "Ultimate Guide to Remote Identification (Part 89, Lawsuits, Problems,& More!)" article on Rupprect's site.

I would ask stuff like the following:

• Does he believe that the "Ex Parte" violations provide cause to sue the FAA?
• What would be the desired and expected outcome from a suit based on "Ex Parte" violations?
• Does he believe that there is any legal point to pursuing litigation against the FAA right now on the Remote ID rule?
• What would be the desired outcome of such litigation?

 

[Chip]

@Chip I think we should contact Jonathan Rupprecht and just see what his take is and how we can help. If he thinks it would be helpful we could set up a way to collect donations to give him to further this cause. He's the right guy to be the face of this thing and we already have 75 people saying they are willing to donate in this thread alone. I've got other outlets I can access and with Johnathan Rupprecht at the helm I think we could raise a lot of money for him if this is what he is doing.

What do you think?

Contacting Rupprecht and asking for his take is great idea. I would do it by phone or email. Good suggested questions from anotherlab. I would ask a few more but I want to review blog again before adding to list.

 

[brett8883]

Contacting Rupprecht and asking for his take is great idea. I would do it by phone or email. Good suggested questions from anotherlab. I would ask a few more but I want to review blog again before adding to list.

Ok I emailed him. I was just really broad and referenced his page asking for tips “for litigation” and if that meant he was planning litigation and if so how we can help or get involved. If he responds and seems willing to converse about it I’ll ask the questions.

 

[Chip]

Between the conviction of the guy in CA who crashed into a police helicopter and the guy from Staten Island who crashed into the Army helicopter, there is enough public evidence for the FAA to use.

Here is the problem though. If the FAA truly believed that those two incidents necessitate or justify tracking and recording the flight of every single 250 gram drone and up in the country, then it had legal obligation to say so and invite honest discussion through reviewing and responding to public comment. The "public evidence" you mention cannot be properly used to justify any regulation after its enacted.

The Ex Parte argument will not work either. While Ex Parte meetings typically prohibited, there are allowable uses. While a judge has latitude in deciding if an Ex Parte meeting would affect a trial, this typically only comes into place with criminal proceedings. Even Rupprecht is referring to it as "kind of illegal" and he has not suggested that Ex Parte would provide any agency for changing the Remote ID policy.

I would like to get back to this after I take another look at some of some of the documents posted on Rupprecht's website. Apparently, the FAA conducted secret demonstration at FBI headquarters in Quantico for special guests who
had to sign secrecy agreements.

Copy of FAA Secrecy Agreement

https://jrupprechtlaw.com/wp-content/uploads/2020/11/Remote-ID-Demo-at-FBI-Academy-Acknowledgement-Form.pdf

 

[Chip]

The original post of this thread was over the viability of a lawsuit with the FAA over the Remote ID regulation. Litigation should always be the last resort. Wouldn't it be better to work with the people on the FAA Drone Advisory committee and try to affect change from the inside? You could join Vic Moss's Drone Service Providers Alliance (Drone Service Providers Alliance)

If you are referring to Rupprecht, where does he say that litigation would be a viable means to changing the Remote ID regulation? He says that Ex Parte is "bad", but where did he say that it could be used to change the regulation? I respect Rupprecht and his legal opinions, but you and I are coming to very different conclusions from what he has written. It would probably be worth your time to arrange a consultation call with Rupprecht.

My point is that litigation would be the least effective and most costly means of trying to affect any change with the Remote ID regulation.

You make good points about clarifying the goal and then seeking most efficient, practical way to get there with legal action often best left as last resort. This takes us back to: any way to get the encrypted signal back into the program or is unencrypted public broadcast a fait accompli that cannot be corrected?

 

[anotherlab]

You make good points about clarifying the goal and then seeking most efficient, practical way to get there with legal action often best left as last resort. This takes us back to: any way to get the encrypted signal back into the program or is unencrypted public broadcast a fait accompli that cannot be corrected?

The FAA made two points about this. Encryption would be a burden. And they said the location of the operator should be public information.

The issue of encryption being a burden is just a technology issue and can be resolved. The second issue is basically the hill that they are going to die on. If you go after that with litigation, they'll just dig in deeper. To change their viewpoint, you have to work with the FAA. Actual communications, face to face (or via Zoom). The drone operators on the FAA Drone Advisory Committee have a better opportunity to change this.

 

[Chip]

Consulted with a lawyer out here in the boondocks who used to work for FAA. Not sure he understood the issues really. His analysis seemed very simplistic.

 

[brett8883]

Consulted with a lawyer out here in the boondocks who used to work for FAA. Not sure he understood the issues really. His analysis seemed very simplistic.

View attachment 122755

In a nut shell what did he say? The FAA can do whatever they want?