AOPA Pilot Magazine - January 2013 - 14

LETTERS
Pilot Counsel

Freedom to fly
Our right to use the airspace
All of uS in general aviation have a very special interest in the airspace over the United States—that is, the airspace available for our flying activities. We often take this availability for granted. The reality is that over many years this limited airspace resource has been shrinking (we won’t be getting any more navigable airspace), often without much notice of the shrinking effect. With the proliferation of TFRs, painfully evident in this election year, this is a good time to be reminded of how easily the airspace can be limited and restricted against general aviation use. The shrinking of the airspace has been principally caused by the power of the government conferred in federal legislation to control the use of the airspace for three specific purposes: “safety,” “security,” and the “efficient use of airspace.” It is hard to argue against these objectives, although one might argue that many sins have been committed against airspace users in the name of these laudable objectives. And,

BY john S. Yodice

Nowadays, with the proliferation of TFRs, this is a good time to be reminded of how easily the airspace can be limited and restricted against general aviation use.
we pilots often wonder whether the large amount of particular airspace taken is justified by the stated objective. Nevertheless, we find ourselves with the familiar designations of prohibited areas, restricted areas, an alphabet soup of airspace designations with their restrictions, and more. The most recent cause of shrinking has been because of “temporary flight restrictions,” or TFRs, which in most cases have turned out not to be very temporary at all. Ordinarily, this column is devoted to providing specific legal information to aircraft owners and pilots that I believe would be helpful in their flying activities, especially information that is not easily obtainable from other sources. This month, with a slight departure from my usual bread-and-butter approach—and considering the growing encroachments into the navigable airspace—I would like to discuss something that is not usually mentioned by the airspace regulators: the legal basis that underlies the pilots and owners “right” to operate in the airspace overlying the United States. I am driven to this because it seems to me that

john S. Yodice

is the legal advisor for the AOPA Pilot Protection Services program. He heads Yodice Associates, a Washington, D.C.-area firm specializing in aviation law.

it has become too accepted that the right (sometimes called a “privilege”—erroneously, in my view) is given to us by the government, and that we should be grateful for the privilege extended to us by a beneficent government. On behalf of many owners and pilots, I would like to express a contrary opinion. The current version of the United States Code, almost never recognized in the imposition of airspace restrictions, expresses it simply in this way: “A citizen of the United States has a public right of transit through the navigable airspace” [49 U.S. Code 40103(a) (2)]. To demonstrate how obscure and unnoticed this provision has been, years ago in a rewrite of the aviation laws, this provision was being left out—until AOPA caught it. It was reinstated. Even this current version could lend itself to the interpretation that this is a right conferred by the government on citizens. Such an interpretation would be wrong. The earlier version of this provision in the Federal Aviation Act of 1958, from which the current version was drawn, makes this clear, and is better expressed. It says: “There is hereby recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” Notice that the right is being recognized and declared to exist, not being gratuitously conferred by the government. It would be nice to see Congress, at the next opportunity, reinstate this better language to prevent the government regulators from misinterpreting the current version. And as for the possibility of misinterpretation, I hasten to assure our friends in business aviation that the same legislation, recognizing this right of citizenship in airspace, defines citizen of the United States to include not only individuals but also corporations, associations, and partnerships essentially controlled by individual citizens. So, in summary, with apologies to my faithful readers for straying from my usual topics, I think it appropriate from time to time to remind ourselves as well as the regulators of the right of general aviation to the use of the airspace, and to give this right due consideration when they seek to adopt prohibitions and restrictions on general aviation use. AOPA
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“Please, Mr. Yodice, do Freedom to fly not apologize for this John S. Yodice’s “Pilot Counsel” article! Nothing could column is not a deviation from be more central to our his norm that he need apologize for. It may be his most interests as pilots.”
Michael Gibbs, AOPA 699401 Phoenix, Arizona

of a better place to start than the military. Thanks for your “Warriors to Wings” article.
John Gray AOPA 964980 Mount Sterling, Kentucky

profound. Yodice’s statement, “…the right is being recognized and declared to exist, not being gratuitously conferred by the government” is the heart and soul of this great nation.
Glenn Timm, AOPA 216011 Polson, Montana

Errata

www.aopa.org/yodiceassociates

24 | AOPA PILOT November 2012

Warriors to wings

have. The content of the article was fine and helpful, but “10 Ways to Stay Alive” or “10 Ways to Stay Safe” might have been more appropriate.
Rick Blumenthal, AOPA 6964719 Sherman Oaks, California

Restless Wildcat

I so enjoyed reading about the infamous day in my dad’s life— December 19, 1944—when he splashed into Lake Michigan (“Briefing ”). My dad and mom were to be married the following week, but the accident caused the wedding to be postponed until January 2, 1945. My father passed away September 30, 2007. I wish he had known about his aircraft being recovered from Lake Michigan.
Ann Bevan Cinderey

Phil Lockwood was a student of mine when I was an instructor at the Florida Institute of Technology. I can still see this skinny little boy with a big grin. Little would I have thought at the time that he would be doing such an outstanding job in general aviation.
Bob Redfern, AOPA 345886 Melbourne, Florida

I received my private pilot certificate at Biggs-Army Airfield in Fort Bliss, Texas. I am greatly indebted to both the army and the dedicated people who ran the flying club. The opportunity shaped my life. For that I will be forever grateful. Today our troops give so much. It would be great for them to have a chance to experience what I did. As we seek to rekindle a fire for flight in our younger people, I cannot think
Coinciding with the Light Sport Aircraft gathering this month in Sebring, Florida, Senior Editor AL MARSH turns his attention to an eight-year report card on the Light

In “micro” (December 2012 AOPA Pilot), the base price of an FLS Microjet from BD-Micro Technologies was reported inaccurately; it is $189,500. Also, the microjet’s engine type, a turbojet, was incorrectly described. In “Hitron” December 2012 AOPA Pilot, the photo incorrectly identified the pictured ammunition as a 7.62-caliber tracer round. This is a 50-caliber inert “dummy” round used for training purposes. AOPA Pilot regrets the errors.
We welcome your comments. Editor, AOPA PIlot, 421 Aviation Way, Frederick, Maryland 21701 or email (pilot@aopa.org). Letters may be edited for length and style before publication.

page 54). Milan Bristela was the genius behind many of the most popular LSAs to come out of the Czech Republic, but he always compromised between what he wanted and what his employer would allow or could afford. After years of that, he designed an airplane that proudly carries most of his last name and is finally his—from the heart. If you’re in the vicinity of Chicago and see a group of pilots wearing brightorange buttons or jackets that say “Where We Goin’ 122.75,” introduce yourself. Chances are you’ll be greeted like an old friend. “The Sunday Morning Breakfast Club is a perfect example of how pilots can enjoy flying and keep it somewhat affordable,” says Senior Editor JILL W. TALLMAN, who met the group in May (“WILL FLY FOR FOOD,” page 70). “Best of all, it’s a very simple setup—no officers, no dues—that anyone can follow. I’m thinking we need one at FDK.”

HANGAR TALK

AirCam River Run

Dave Hirschman did it again. The “AirCam River Run” article is outstanding. Hirschman puts me in the seat with him. His writing is descriptive, clear, concise, easy to read and comprehend. I never lay his articles down until I have come to their complete end and then I am fully satisfied for the time spent.
14 | AOPA PILOT January 2013

Sport industry (“LIGHT YEARS AHEAD,” page 49). The industry has survived, even though it hasn’t sold as many aircraft as predicted or created as many sport pilots as originally hoped. It surprised even its founders when 90 companies offered 121 aircraft (seven have gone out of production). From here into the future, the Light Sport storyline splits in two—it has created a revolution in the way aircraft are certified that will affect all manufacturers and pilots, whether or not they are in the Light Sport industry. Second, a shakeout long predicted in the LSA industry is on the way, and the number of manufacturers could shrink starting in 2013—helped along by a still-struggling economy. Marsh also looked at the luxurious Bristell LSA (“PERSONAL VISION,”

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AOPA Pilot Magazine - January 2013

Table of Contents for the Digital Edition of AOPA Pilot Magazine - January 2013