QUESTION: Is it possible to "plead guilty" into a regulatory fiction? In other words -- subject yourself to a regulatory regime that has no basis -- or authorization -- in statute or law? Is it possible for a regulatory agency to CLAIM jurisdiction where none should apply? And then assign fines and penalties to your activities? To paraphrase a common phrase: "Regulation without representation?"
ANSWER: If recent events are any indicator -- the short answer is "Yes" -- Regulatory agencies can claim jurisdiction -- and demand "compliance" -- where none should apply. And if this regulatory over-reach is not challenged -- will remain in effect -- and propagate to gain future credibility.
SIGNIFICANT or NO? While the example below may seem "small" and "trivial" to trillion dollar economies -- rest assured -- where there is a little regulatory smoke -- there is hidden inferno of burning liberty and freedom.
A Legal Disease infects the "Regulatory System?" -- In the realm of statutory "law" that is supposed to be superior to -- and over-rides any regulation -- there is a disease called "Pleading into a Fiction of Law." Simply put -- you -- a free and liberty born citizen -- may voluntarily confess to breaking a law -- a law that does not exist -- and with the willing participation of a court of "competent" jurisdiction -- your plea can be "solidified" into a "real crime" -- with real consequences, real fines and real penalties.
DISEASE of the PARENT Afflicts the Child: This disease of the statutory legal system is inherited by the legal system's child: The "regulatory compliance" system.
REGULATORY FICTION SETUP:
2012-2015 history -- Regulatory "Hands Off" from Congress: In 2012 -- the US Congress passed something called the "FAA Modernization and Reform Act" (FMRA, Public Law 112-095, See [1] and [2]). For our current example, the significant and relevant text is section 336 -- which is very specific -- regarding hobby and model aircraft owners and operators:
Section 336(a): " ... the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft ..."
Please note the key text -- "may not promulgate." This is a specific Congressional prohibition ("hands off") -- to the FAA -- a specific directive NOT to develop regulations -- and push those regulations onto the public ("promulgate"). Subsequent sections of the FMRA statutory legislation go on to describe how model aircraft will be operated as per "guidelines" of "community based" organizations. This is where the 2012 FMRA strongly hints at "self regulation" for model aircraft owners and operators under 55 pounds -- and flying away from full sized aircraft and airports.
REGULATORY OVER-REACH: In direct contradiction to US Congressional intent -- beginning in 2014 and ending 21-Dec-2015 -- the FAA developed and foisted ("promulgated") rules and regulations upon the US public -- and specifically upon the model aircraft and UAV ("drone") community. The FAA promoted this new regulation as a "fact" of FAA jurisdiction and purview. Promoting a legal fiction.
"Regulated Community" Reaction -- Delay self ensnarement into a regulatory fiction? The Academy of Model Aeronautics (AMA) -- one of the key self regulated communities -- on or about 17-Dec-2016 -- encouraged it's members to hold off -- and wait for redress of interpretive grievances -- and to be heard and re-considered by the FAA. Basically -- the AMA was cautioning the membership to avoid self-ensnarement into the FAA regulatory fiction. And the AMA was hoping to add "weight" -- via the membership -- to boycott or ignore FAA claims of purview. A regulatory fiction ignored -- and un-enforced -- will be eventually be recognized as regulatory "vaporware" -- at least this appeared to be the hoped for outcome for a few weeks in Dec-2015 and Jan-2016.
Lawsuit and Stay Petition: On 24-Dec-2015 -- some three days after the FAA "enacted" the new rules and regulations -- a Mr John Taylor of Maryland filed a lawsuit against the FAA's Regulatory Over Reach and filed a motion to freeze the FAA registration process --and block registration of model aircraft and UAV-drones sold during Christmas 2015. Mr Taylor's motion to freeze registration was denied by the federal district court (self ensnarement was "allowed" to continue) -- yet the lawsuit regarding regulatory over reach was allowed to proceed (the FAA rules and regulations may yet be killed by court process). As of Feb-2016 -- Mr Taylor's lawsuit remains open.
WEB SITE ENSNAREMENT & SELF CONFESSIONAL? The FAA also setup and provisioned a web site for self reporting -- a place to "confess" that you owned a model aircraft -- and might -- just might -- violate FAA rules and regulations -- rules and regs with no foundation in legal statute. Thus automating -- via a government website -- the process of "pleading into a fiction of regulation." And -- in essence -- also giving the "regulatory requirement" the imprimatur of an official US Government website.
To add to the scare -- and to "encourage" use of the website -- the FAA also warned that failure to register your model aircraft by 19-Feb-2016 -- owners and operators of model aircraft could face fines up to $250,000 -- and three years in jail.
STATUS? Where are we? As of 06-Jan-2016 -- some 181,000 folks have been ensnared -- and have used the FAA web site to "plead into a fiction" of regulatory purview and "compliance." And have paid $5 each for the "privilege" to do so. Mr Taylor's lawsuit against the FAA -- successful or not -- and the FAA's "abuse" of US Congressional FMRA intent -- means that some 150,000+ folks are now a "regulated community" -- regulated by a "fiction" -- generated by what appears to be a self-serving US Government agency.
UPSHOT? Bigger perspective for anyone in a "regulated community" -- struggling thru "compliance" with ATF / BIA / EPA / FCC / OSHA / SEC / etc ?? You too might be living a "regulated fiction" -- filing permits -- and reacting to rules and regulations -- with the weight and effect of "laws" -- that only exist in the interpretive over reach of your regulatory agencies. Regulatory perception (fiction) is by default legal reality?
To paraphrase a great author, "All things be ready" (for the regulatory agency) -- "if our minds be so." (if we believe the regulatory fiction is fact).
Refs:
[1] FAA Modernization and Reform Act of 2012 (Summary):
https://www.congress.gov/bill/112th-congress/house-bill/658
[2] Full Text Version:
https://www.govtrack.us/congress/bills/112/hr658/text
