The FAA has laid out its opposition to Trappys position in a very matter of fact manner.
I have pulled the section most argued in online forums in the Trappy case. The right of the FAA to care about flights below 500′
III. The FAA has the authority to regulate the airspace below 500 feet.
The Respondent asserts that the FAA does not have authority to regulate the airspace below 50o feet and that Congress may even be prohibited from doing so. See Resp’t’s Mot. at 22. Respondent misconstrues the scope of the FAA’s regulatory authority. 49 U.S.C. § 40103(a)(1) grants the U.S.
Government “exclusive sovereignty of airspace of the United States.” Id. Paragraph (b) grants the Administrator the authority to regulate the airspace in the public interest to do such things as “preventing collision between aircraft, between aircraft and land and water vehicles, and between aircraft and airborne objects” and “to protect individuals and property on the ground.” 49 U.S.C. § 40103(b). See also City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-39 (1973). Congress expressly did not restrict the FAA’s ability to regulate the operation of aircraft at any altitude to prevent collisions between aircraft with land vehicles and other airborne objects and to protect persons and property on the ground.6
As the legislative history of the Federal Aviation Act of 1958 demonstrates, Congress proposed to “give the Administrator authority to regulate the use of all airspace over the United States by both civil and military aircraft . . . .” United States v. Christenson. 419 F.2d 1401, 1404 (9th Cir.1969) (citing 1958 U.S. Code Cong. & Admin. News, p. 3745) (emphasis added). Consistent with its broad statutory authority, the FAA promulgated section 91.13, which prohibits the careless or reckless operation of an aircraft so as to endanger the life or property of another. This prohibition is not limited to operations above 500 feet; to be sure, the unambiguous wording of the regulation is to bar careless and reckless operations of aircraft in any of the airspace over the United States where the operation could potentially endanger persons and property of another.
Contrary to what Respondent argues, the definition of navigable airspace in neither 49 U.S.C. § 40102(32) nor 14 C.F.R. § 1.1 acts to limit the FAA’s authority to regulate U.S. airspace at any altitude.7 The FAA’s mandate is to regulate the use of all airspace necessary to “ensure the safety” of aircraft, for “protecting, and identifying” those aircraft, and for “protecting individuals on the ground.” That authority is not circumscribed by the definition of “navigable airspace.” Consistent
with the broad scope of authority that Congress gave to the FAA, the prohibition of careless and reckless operations in section 91.13 is not limited to aircraft operating in navigable airspace above a certain altitude. The plain wording of the regulation mirrors the Congressional intent that FAA promulgate regulations to prevent aircraft collisions with land-based vehicles and to protect individuals and property on the ground. Accordingly, deference is owed to the FAA’s interpretation of its own statutory authority, as Congress clearly assigned regulation of this subject matter exclusively to the FAA. City of Arlington, 133 S.Ct. at 1874-75. WHEREFORE, for the reasons stated above, the Administrator respectfully requests that
Respondent’s Motion to Dismiss be denied. Respectfully submitted,
Alfred R. Johnson, Jr.
Read the full reply here.