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Question re effectuality of PL 112-95 Sec 336

Old 09-04-2014, 08:25 PM
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Default Question re effectuality of PL 112-95 Sec 336

If the following condition for exemption from regulation in PL 112-95 Sec 336 withstands threatened legal challenges, how often do you think FAA will bust anyone for not being in compliance with it, assuming the model aircraft is being operating in a way that would not be permitted per the law unless it were exempted?

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

My expectation is that it's never gonna happen. Comments please.

cj
Old 09-04-2014, 09:35 PM
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ira d
 
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As far as i know neither the FAA or the AMA has spelled out exactly what is being within the programming of a CBO. Also IMO if something the modeler
is doing is unsafe then why should it be ok because they are a member of a CBO?
Old 09-05-2014, 01:54 AM
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Originally Posted by ira d View Post
As far as i know neither the FAA or the AMA has spelled out exactly what is being within the programming of a CBO. Also IMO if something the modeler
is doing is unsafe then why should it be ok
because they are a member of a CBO?
It won't be okay. PL 112-95 Sec 336 (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

Does this mean that FAA inspectors will be visiting RC fields looking for violators? Of course not, but you can bet that if manned aircraft in the NAS become threatened or damaged and/or people and property on the ground are threatened or damaged they can and will come after the individuals.

Frank
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Old 09-05-2014, 04:12 AM
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Originally Posted by cj_rumley View Post
If the following condition for exemption from regulation in PL 112-95 Sec 336 withstands threatened legal challenges, how often do you think FAA will bust anyone for not being in compliance with it, assuming the model aircraft is being operating in a way that would not be permitted per the law unless it were exempted?

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

My expectation is that it's never gonna happen. Comments please.

cj
Hardly ever. They don't have the manpower to go around checking on what modelers are up to. But that doesn't mean there's no risk. What could happen, for instance, is somebody in a club does something that causes a serious accident, or frightens a full-scale pilot. Or a neighbor who doesn't like models complains. And so on. The FAA then investigates, finds that the club members have been flying without the permission of somebody who has a backyard airport four miles away from the field, and the government then fines all the club members or even sentences them to jail, for violating FAA regs. (This assumes that the FAA's proposed "interpretation" is incorporated in the final regulations.

Do I exaggerate? The government has sent a lobster seller to jail for selling lobsters in paper bags, rather than plastic ones (or maybe it was plastic instead of paper). No US law says anything about the kind of bags you can put lobsters in. But the Lacey Act makes it a crime to violate the laws of more than 100 different foreign countries. Our government claimed the law of Honduras, where the lobsters came from, required one kind of bag. A jury agreed, although the government of Honduras said they had no such law. Bet they didn't think they'd get tracked down, either.
Old 09-05-2014, 05:42 AM
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Originally Posted by Top_Gunn View Post
Hardly ever. They don't have the manpower to go around checking on what modelers are up to. But that doesn't mean there's no risk. What could happen, for instance, is somebody in a club does something that causes a serious accident, or frightens a full-scale pilot. Or a neighbor who doesn't like models complains. And so on. The FAA then investigates, finds that the club members have been flying without the permission of somebody who has a backyard airport four miles away from the field, and the government then fines all the club members or even sentences them to jail, for violating FAA regs. (This assumes that the FAA's proposed "interpretation" is incorporated in the final regulations.

Do I exaggerate? The government has sent a lobster seller to jail for selling lobsters in paper bags, rather than plastic ones (or maybe it was plastic instead of paper). No US law says anything about the kind of bags you can put lobsters in. But the Lacey Act makes it a crime to violate the laws of more than 100 different foreign countries. Our government claimed the law of Honduras, where the lobsters came from, required one kind of bag. A jury agreed, although the government of Honduras said they had no such law. Bet they didn't think they'd get tracked down, either.
What you are saying is our government is whacked... if they want to screw with you its just a matter of their arbitrary desire. So basically we are screwed... how we got here is a great question for John to think about and give us the answer.
Old 09-05-2014, 08:31 AM
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Originally Posted by phlpsfrnk View Post
It won't be okay. PL 112-95 Sec 336 (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

Does this mean that FAA inspectors will be visiting RC fields looking for violators? Of course not, but you can bet that if manned aircraft in the NAS become threatened or damaged and/or people and property on the ground are threatened or damaged they can and will come after the individuals.

Frank

.
True enough, Frank. When they come after the offending individuals, my question is will FAA charge them for non-conformance with "Section 336(a)(2) requires model aircraft to be operated within a community-based set of safety guidelines and within the programming of a nationwide community-based organization." That's the point of this thread, i.e., under what circumstances would that particular charge ever be made by FAA against anyone.

cj
Old 09-05-2014, 09:02 AM
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Originally Posted by cj_rumley View Post
True enough, Frank. When they come after the offending individuals, my question is will FAA charge them for non-conformance with "Section 336(a)(2) requires model aircraft to be operated within a community-based set of safety guidelines and within the programming of a nationwide community-based organization." That's the point of this thread, i.e., under what circumstances would that particular charge ever be made by FAA against anyone.

cj
Nobody can be charged with violating section 336. That section doesn't require modelers to do anything, and there is no penalty for "violating" it anyway. It limits (but not very much) the kinds of regulations the FAA can write.What people will be charged with is violating FAA regulations.
Old 09-05-2014, 10:13 AM
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Originally Posted by cj_rumley View Post
True enough, Frank. When they come after the offending individuals, my question is will FAA charge them for non-conformance with "Section 336(a)(2) requires model aircraft to be operated within a community-based set of safety guidelines and within the programming of a nationwide community-based organization." That's the point of this thread, i.e., under what circumstances would that particular charge ever be made by FAA against anyone.

cj
I think Al Gunn has it right, only the FAA can be charged with violating Section 336. Model aircraft operators that operate outside of the rules for exemption can no longer be considered model aircraft and are fair game as sUAVs in the NAS. As for the community-based set of safety guidelines, as one example there is currently a difference in interpretations between the AMA and the FAA in regards to the use of spotters when flying FPV in the 550.pdf document. To my knowledge this document is in its third or fourth revision and will probably be revised again. As a CBO any individuals operating within "community-based set of safety guidelines" (550.pdf at whatever version) will be considered to be operating safely as model aircraft. FPV operations could continue at AMA fields with these differences (without problems) for a considerable amount of time. It becomes a problem when an incident occurs and the authorities become involved and the FAA points to standing NAS regulations/section 336, their interpretation of 336 and the current version of 550.pdf. At that time the AMA will be tasked to justify the different interpretation (probably in a court of law) and might be held libel.


Frank

Last edited by phlpsfrnk; 09-05-2014 at 10:16 AM. Reason: grammer
Old 09-05-2014, 10:52 AM
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Originally Posted by Top_Gunn View Post
Nobody can be charged with violating section 336. That section doesn't require modelers to do anything, and there is no penalty for "violating" it anyway. It limits (but not very much) the kinds of regulations the FAA can write.What people will be charged with is violating FAA regulations.
I should have been more specific Al. What I meant was the FAA COULD charge that an operator was not exempted from regulation by the terms of 336, specifically because he is not in step with the CBO guidelines and programming condition, and so is subject to "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."

My question is WOULD they. I think not, and I'm just asking what others think.
Old 09-05-2014, 11:44 AM
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Originally Posted by phlpsfrnk View Post
I think Al Gunn has it right, only the FAA can be charged with violating Section 336. Model aircraft operators that operate outside of the rules for exemption can no longer be considered model aircraft and are fair game as sUAVs in the NAS. As for the community-based set of safety guidelines, as one example there is currently a difference in interpretations between the AMA and the FAA in regards to the use of spotters when flying FPV in the 550.pdf document. To my knowledge this document is in its third or fourth revision and will probably be revised again. As a CBO any individuals operating within "community-based set of safety guidelines" (550.pdf at whatever version) will be considered to be operating safely as model aircraft. FPV operations could continue at AMA fields with these differences (without problems) for a considerable amount of time. It becomes a problem when an incident occurs and the authorities become involved and the FAA points to standing NAS regulations/section 336, their interpretation of 336 and the current version of 550.pdf. At that time the AMA will be tasked to justify the different interpretation (probably in a court of law) and might be held libel.
No difference in opinion with most of what you said, Frank. Here's where I do have a problem:

FPV operations remove the UA from the definition of model aircraft as written in 336, according to FAA's interpretation. AFAIK the Congress did not see the exception/conditions that AMA provides (550 PDF) to allow for limited FPV operation. Obviously if they didn't see it they could not not have approved of it in enacting the PL. Without the 550 conditions, only the general ban on FPV as stated in the AMA SC could have been considered and that is the basis FAA's interpretation, i.e., what Congress directed them to do, not what they might think AMA wanted. FAA cannot interpret what Congress did not say. If it's not model aircraft, CBO is not relevant in this context.
Old 09-05-2014, 12:48 PM
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The FAA then investigates, finds that the club members have been flying without the permission of somebody who has a backyard airport four miles away from the field, and the government then fines all the club members or even sentences them to jail, for violating FAA regs.
You don't need anyone's 'permission', you just have to notify them, and only then if you fly above 400' AGL, and it's within 3 miles. It's the National Model Safety Code:
According to two appellate court rulings, the FAA has no grounds to prosecute anyone as they have no laws prohibiting our operations. Pretty sweet!
Old 09-05-2014, 01:01 PM
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Originally Posted by eddieC View Post
You don't need anyone's 'permission', you just have to notify them, and only then if you fly above 400' AGL, and it's within 3 miles. It's the National Model Safety Code:


According to two appellate court rulings, the FAA has no grounds to prosecute anyone as they have no laws prohibiting our operations. Pretty sweet!
According to the FAA's "interpretation" of section 336, you do need permission. They say that if you notify the airport operator and the operator says "don't fly," they will consider you a danger to the NAS. As for those "appellate court rulings" you refer to, (1) they aren't rulings by appellate courts, and (2) they say the FAA can't regulate models until it issues regulations. So they will become meaningless as soon as the regulations appear. This thread is about what can happen when those regulations are issued. Far too soon to say "pretty sweet." And the stuff about three miles and 400 feet is obsolete: section 336 changes it to five miles, and there is no altitude limit. So far as I know, there is no such thing as a "National Model Safety Code."

Last edited by Top_Gunn; 09-05-2014 at 01:03 PM.
Old 09-05-2014, 03:28 PM
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As far as I know the FAA has never officially recognized the AMA as a "Nationwide Community Based Organization" so there is no official set of CBO rules to comply with section 336 in order to be exempt from any future FAA regulations.. So is there actually any FAA regulation/rule/advisory other then AC 91-57 that the FAA can use before they finally publish their "model aircraft" rules or recognize the AMA and it's CBO rules?
Old 09-05-2014, 03:48 PM
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From 336:

(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 (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)).
What 'interpretation' are you talking about? Your own? Nothing in there about the airport operator flat-out prohibiting models, just a 'mutually-agreed upon' procedure.

As for those "appellate court rulings" you refer to, (1) they aren't rulings by appellate courts, and (2) they say the FAA can't regulate models until it issues regulations.
So, you're agreeing and disagreeing? They were appellate courts, the FAA lost both appeals, and yes, you have it right, the FAA has no regs against models and, per 336, everything operated under a CBO, below 55 lbs, LOS, etc, has nothing to worry about unless operated carelessly/recklessly.

I'm not at all in favor of Fed oversight. We should be more concerned with the AMA jumping in bed with the drone/FPV community.
Old 09-05-2014, 04:08 PM
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And the stuff about three miles and 400 feet is obsolete: section 336 changes it to five miles, and there is no altitude limit. So far as I know, there is no such thing as a "National Model Safety Code."
My bad, National Model AIRCRAFT Safety Code. AMA Document 105? Ring a bell?
Old 09-05-2014, 04:25 PM
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Originally Posted by bradpaul View Post
As far as I know the FAA has never officially recognized the AMA as a "Nationwide Community Based Organization" so there is no official set of CBO rules to comply with section 336 in order to be exempt from any future FAA regulations..
I think you are 'right on' up to this point, Brad.

So is there actually any FAA regulation/rule/advisory other then AC 91-57 that the FAA can use before they finally publish their "model aircraft" rules or recognize the AMA and it's CBO rules?
Yes, there are 'regulations' by federal statute, since PL-112-95 was signed into law. Those regulations are what AMA proposed, filtered thru Congressional Committees, and once passed, interpreted by FAA as the agency designated to enforce them. FAA does not need to publish any rules of their own making to enforce those statutes. It isn't proposed rules ala NPRM, it is law that is effective ATT. Theoretically I suppose they could enforce future regulations they may propagate against non CBO members or camp followers IF they ever make any future regulations for model aircraft specifically and IF they recognize some CBO(s). That may forever remain in limbo, as FAA is now saying they don't have the authority to recognize a CBO, and no agency that does have such authority has been identified. I would guess that it would have to come from Congress itself or a high enough court to decide what Congress meant, but IANAL so that is most certainly not legal advice, just a WAG.

cj
Old 09-05-2014, 05:33 PM
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What 'interpretation' are you talking about? Your own? Nothing in there about the airport operator flat-out prohibiting models, just a 'mutually-agreed upon' procedure.
Here is the FAA's interpretation of section 336:

http://www.regulations.gov/#!documen...2014-0396-0001

It came out in June, and has been discussed at length, here, in Model Aviation, and elsewhere. Here's the part that requires permission:

"Finally, the statute sets a requirement for model aircraft operating within 5 miles [SUP] (9) [/SUP] of an airport to notify the airport operator and control tower, where applicable, prior to operating. [SUP]10[/SUP] [SUP] (11) [/SUP] If the model aircraft operator provides notice of forthcoming operations which are then not authorized by air traffic or objected to by the airport operator, the FAA expects the model aircraft operator will not conduct the proposed flights. The FAA would consider flying model aircraft over the objections of FAA air traffic or airport operators to be endangering the safety of the NAS. Additionally, we note that following this 5-mile notification procedure would be read in conjunction with FAA rules governing airspace usage discussed below."

They also propose basically to ban modeling in class B airspace, which will, if it becomes law, shut down more than 100 club fields.

You were partly right about the cases: one of them was decided by an appellate court. But both are meaningless in the long run, because they hold only that the FAA has to issue regulations gov3erning models before it can penalize people. It is in the process of writing those regulations, and when it does these cases will have become meaningless.
Old 09-05-2014, 07:55 PM
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Originally Posted by phlpsfrnk View Post
It won't be okay. PL 112-95 Sec 336 (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

Does this mean that FAA inspectors will be visiting RC fields looking for violators? Of course not, but you can bet that if manned aircraft in the NAS become threatened or damaged and/or people and property on the ground are threatened or damaged they can and will come after the individuals.

Frank
.
Well if you operate within the AMA safety code then you will never endanger the NAS. Right?
Old 09-05-2014, 07:59 PM
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Originally Posted by cj_rumley View Post
I think you are 'right on' up to this point, Brad.


Yes, there are 'regulations' by federal statute, since PL-112-95 was signed into law. Those regulations are what AMA proposed, filtered thru Congressional Committees, and once passed, interpreted by FAA as the agency designated to enforce them. FAA does not need to publish any rules of their own making to enforce those statutes. It isn't proposed rules ala NPRM, it is law that is effective ATT. Theoretically I suppose they could enforce future regulations they may propagate against non CBO members or camp followers IF they ever make any future regulations for model aircraft specifically and IF they recognize some CBO(s). That may forever remain in limbo, as FAA is now saying they don't have the authority to recognize a CBO, and no agency that does have such authority has been identified. I would guess that it would have to come from Congress itself or a high enough court to decide what Congress meant, but IANAL so that is most certainly not legal advice, just a WAG.

cj
112-95 directs the FAA to write regulations per the laws instructions. It is not law that the FAA can enforce. They must write the regulation first. BTW the FAA was given authority to write regulations a long time ago and they never wrote any regulations that covered model airplanes. An AC is not a regulation.
Old 09-05-2014, 08:03 PM
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Originally Posted by bradpaul View Post
As far as I know the FAA has never officially recognized the AMA as a "Nationwide Community Based Organization" so there is no official set of CBO rules to comply with section 336 in order to be exempt from any future FAA regulations.. So is there actually any FAA regulation/rule/advisory other then AC 91-57 that the FAA can use before they finally publish their "model aircraft" rules or recognize the AMA and it's CBO rules?
.

I don't think they are supposed to recognize the AMA. I don't believe they recognize any ultralight CBO but they will note ultralights that do not meet industry ultralight standards for example.
Old 09-05-2014, 08:06 PM
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So, you're agreeing and disagreeing? They were appellate courts, the FAA lost both appeals, and yes, you have it right, the FAA has no regs against models and, per 336, everything operated under a CBO, below 55 lbs, LOS, etc, has nothing to worry about unless operated carelessly/recklessly.
Actually until they write regulations you can make your model as big as you want. Without a waiver you can't fly at an AMA field though.
Old 09-06-2014, 10:03 AM
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Originally Posted by cj_rumley View Post
I think you are 'right on' up to this point, Brad.


Yes, there are 'regulations' by federal statute, since PL-112-95 was signed into law. Those regulations are what AMA proposed, filtered thru Congressional Committees, and once passed, interpreted by FAA as the agency designated to enforce them. FAA does not need to publish any rules of their own making to enforce those statutes. It isn't proposed rules ala NPRM, it is law that is effective ATT. Theoretically I suppose they could enforce future regulations they may propagate against non CBO members or camp followers IF they ever make any future regulations for model aircraft specifically and IF they recognize some CBO(s). That may forever remain in limbo, as FAA is now saying they don't have the authority to recognize a CBO, and no agency that does have such authority has been identified. I would guess that it would have to come from Congress itself or a high enough court to decide what Congress meant, but IANAL so that is most certainly not legal advice, just a WAG.

cj
The bold is where I disagree. PL-112-95 contained a standard for exemption from FAA regulations and a definition for "model aircraft", it never contained actual regulations, it left that up to the FAA.
,
Since it is impossible to be exempt as the FAA has never defined what the "programming of a nationwide Community Based Organization" is (we like to think it is the AMA Safety Code, but the FAA has never said that it is), then I believe only leaves us with AC 91-57 until the FAA defines new regulations.

Think of it this way, if the FAA never recognizes a nationwide CBO then PL-112-95 does nothing. The FAA "Interpretation" of Sec 336 is also meaningless as nobody can be exempt.
.

Last edited by bradpaul; 09-06-2014 at 10:08 AM.
Old 09-06-2014, 11:37 AM
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Originally Posted by bradpaul View Post
The bold is where I disagree. PL-112-95 contained a standard for exemption from FAA regulations and a definition for "model aircraft", it never contained actual regulations, it left that up to the FAA.
,
Since it is impossible to be exempt as the FAA has never defined what the "programming of a nationwide Community Based Organization" is (we like to think it is the AMA Safety Code, but the FAA has never said that it is), then I believe only leaves us with AC 91-57 until the FAA defines new regulations.

Think of it this way, if the FAA never recognizes a nationwide CBO then PL-112-95 does nothing. The FAA "Interpretation" of Sec 336 is also meaningless as nobody can be exempt.
.
I think that is a very good summary of the situation, Brad. I'm not sure enough in the accuracy of my statement that said in effect 'FAA doesn't need to make regulations in order to enforce the law' to argue it. It was based on an FAA statement that PL 112 -95 took effect the day it was passed, and my construct of combining that with the fact that FAA is the agent charged with enforcing it, and so considered it a done deal. May well be there are some administrative step pending to make it so.

Agree that what constitutes 'programming' in context is ambiguous, and mentioned that in my comments to FAA on their interpretation.

Without cogitating further I mostly agree that if the CBO crud goes away (as you know I'll be more than pleased with that) the PL does nothing, with reservation that some of content may just hibernate. For example, the definition of model aircraft from higher authority (Congress) may well come back to haunt us when sUAS regulations are promulgated and exceptions for model aircraft (as in Guidance 08 for example) are made. If so, I expect that UA controlled via FPV will not be included in the model airplane category.

cj
Old 09-06-2014, 12:07 PM
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The CBO thing does create some interesting issues. If I was an AMA Official (which I am not and do not ever wat to be) I would call the FAA bluff. The AMA could officially declare to Congress and the FAA that the AMA is a "Nationwide Community Based Organization" per the intent of PL-112-95 Section 336.

Then the ball would be in the FAA court to say "no you are not". If that would happen then the AMA could turn to their "friends" in Congress and/or the Courts.

This in no way would imply that the AMA is the only possible CBO, just that the AMA is a CBO.
Old 09-06-2014, 12:29 PM
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Then the ball would be in the FAA court to say "no you are not". If that would happen then the AMA could turn to their "friends" in Congress and/or the Courts.
I think the AMA's only friend in Congress is Senator Inhofe, who has a personal feud with the FAA. Having a "friend" like that was, I think, a big mistake on the AMA's part. They must have known about the dispute. Until section 336 got passed, the AMA and the FAA seemed to be getting along pretty well, at least as far as we outsiders can tell. Since then, the FAA seems to take great delight in sticking it to the AMA.

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