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What it does 

The Federal Aviation Administration (FAA)’s Registration Rule (80 FR 78593) required recreational operators of unmanned model aircraft (i.e., drones) to register those drones with the FAA. Upon review, the Court determined (856 F.3d 1089 (D.C. Cir. 2017)) that:

  1. The definition of “model aircraft” as used in the Rule matches that as used in the 2012 FAA Modernization and Reform Act (Public Law 112-09549 U.S.C. 40101 note);
  2. The Rule directly violates the Act, specifically section 336(a), which provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft”.

The Court thus vacated the Rule as it applies to model aircraft, effective immediately. Consequently, recreational drone operators no longer have to register their drones with the FAA.

Separately, in 2015 the FAA released Advisory Circular 91-57A, which prohibited operation of model aircraft in certain locales, including Washington, D.C. The Court did not rule on this order because Petitioner failed to challenge the order within 60 days of its release (49 U.S.C. 46110(a)). The Court moreover ruled that the Petitioner did not have reasonable grounds to miss the 60-day deadline, and thus the Court was not obligated to allow the late petition. Consequently, the locality-specific flight restrictions remain in place.

The facts 

Petitioner John Taylor, a resident and recreational drone operator of Washington, D.C., sued Michael Huerta, the FAA Administrator, for promulgation of the Registration Rule and for issuance of the Advisory Circular 91-57A order. Petitioner wished to use his drones within the Washington, D.C., area, and to operate his drones without having to register with the government.

Regarding the petition to use drones within a restricted area, Petitioner acknowledged that he failed to submit the position with the required 60-day window. To persuade the Court to consider the late petition anyway, he argued that the FAA did not provide adequate notice of the newly-released Advisory Circular; and that the text of the Advisory Circular was not adequately clear to explain conduct it prohibited.

Decision Points 

Registration Rule

  • 2012 FAA Modernization and Reform Act section 336, the “Special Rule for Model Aircraft”, forbids the FAA from promulgating any rule or regulation regarding a model aircraft.
  • The Act defines “model aircraft” as “an unmanned aircraft that is — (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”
  • The Registration Rule, promulgated by the FAA, is a formal rule and regards model aircraft.
  • The Rule defines the term “model aircraft” by referring to the definition of that same term in the Act.
  • The Court thus ruled that the clear statutory text of the Act forbids the enforcement of the Rule, especially since both the Act and the Rule rely on the same definition of “model aircraft”.

Advisory Circular

  • The Advisory Circular, an FAA guidance document, prohibits model aircraft from operating in “Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.”
  • Challenges to an FAA order must be made within 60 days of its publication.
  • The FAA’s publication of the Advisory Circular was noticed in the Federal Register on September 9, 2015.
  • Petitioner filed his petition against the Advisory Circular on January 12, 2016, more than two months after the 60-day window had concluded.
  • Petitioner’s challenge was untimely, and thus the Court had no obligation to review it.
  • Petitioner argued for the court to accept the late petition because he claimed “reasonable grounds” for missing the deadline:
    • The FAA did not provide adequate notice of the issuance of the Advisory Circular; and
    • The Advisory Circular’s text was unclear that it would prohibit model aircraft operation in Washington, D.C.
  • The Advisory Circular was published in the Federal Register, and Congress has determined that publication in the Federal Register qualifies as sufficient notice (44 U.S.C.1507).
  • The Advisory Circular explicitly states that model aircraft cannot operate in the Washington National Capital Region Flight Restricted Zone.
  • Petitioner thus did not have reasonable grounds for missing the deadline, so the Court still had no obligation to review the petition.
Relevant Science 

The recent proliferation of commercial drones has occurred, in part, due to reduction in cost and miniaturization of the key components. Size reductions mean reduced weight and decreased power consumption, which leads to the ability for a drone to engage in longer flight times. Chips are now available that can detect small changes in acceleration and balance, which allows the drone to automatically stabilize itself, thereby simplifying the responsibilities of a remote pilot.

The FAA projects growth in annual UAS sales from $1.9 million in 2016 to $4.3 million by 2020. The increased availability of commercial drones has also led to improved public acceptance. For example, according to a poll from Saint Leo University, 72% of adults support using drones for community policing.

Where & When 

The District of Columbia Circuit, Appeals Court, issued this decision on May 19, 2017.

Relevant Experts 

Jonathan Rupprecht, Esq., is an aviation attorney, commercial pilot, flight instructor, and author of the book, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them. He holds a Bachelor of Science in Professional Aeronautics from Embry-Riddle Aeronautical University, Magna Cum Laude, and a Juris Doctor from Florida International University School of Law. Rupprecht worked with John Taylor on his lawsuit, and published a Complete Guide to Taylor v. FAA on his website. He offered the following opinion on the outcome:

The Taylor v. FAA ruling is really the court upholding the rule of law. Congress passed a law in 2012 prohibiting the FAA from creating a regulation governing model aircraft. The FAA violated the law in their regulatory land grab and stepped on a landmine. Many are upset at the situation, but the one thing everyone should be upset with is the FAA who intentionally broke the law and tried to get away with it. Before the FAA tells anyone else to follow the law, they should take a good long look in the mirror and start walking the walk before they talk the talk. Everyone, including the FAA, needs to follow the law. If you don't like the law, get Congress to change it.

Background 

The FAA offered two arguments for issuing the Registration Rule. First, they argued that other statutory provisions, not affected by the FAA Modernization and Reform Act, require any aircraft to register with the agency. And even though the FAA had not required model aircraft to register prior to the Rule, the FAA claims to use the Rule to demonstrate that they now wish to exercise their previously-unused authority to regulated model aircraft. The Court dismissed this argument because the Rule created an entirely new regulatory regime, namely the process of registering the model aircraft and facing civil and criminal penalties for failing to do so.

Second, the FAA argued that regulating model aircraft is consistent with their agency’s policy directive to “improve aviation safety.” But the Court likewise dismissed this argument because, as the Supreme Court has previously decided (Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164), policy considerations cannot overrule statutory text.

Of note, the Registration Rule not only applied to small unmanned aircraft defined as “model aircraft”, but also to small unmanned aircraft not meeting the definition of “model aircraft”, i.e. those used for commercial or research purposes. This decision only impacts the small unmanned aircraft defined as “model aircraft”; individuals must still register their drones via the requirements in the Registration Rule if they will use those drones for other purposes.

Endorsements & Opposition 

Endorsements

  • The Academy of Model Aeronautics, a non-profit organization promoting “development of model aviation as a recognized sport and worthwhile recreation activity”, supported the ruling in a statement: “We have repeatedly argued that federal registration for our community is duplicative and unnecessary, as our members already register their model aircraft with AMA. In addition, our 80-year history of safe and responsible flying demonstrates that we’re not the problem. We shouldn’t be burdened by overly broad regulations.”

Opposition

  • The Association for Unmanned Vehicle Systems International, a non-profit organization “devoted exclusively to advancing the unmanned systems and robotics community”, disagreed with a ruling in a statement: “A[n unmanned aircraft] registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.”
Status 

This case was originally heard in the D.C. Circuit by a three-judge panel. According to Anne Swanson, an aviation regulation expert, the FAA could appeal to have the case re-heard by the entire D.C. Circuit (an en banc review). At the moment, the FAA has said in a statement that they “are in the process of considering our options and response to the decision,” so no appeal has yet been announced.

Alternatively, the FAA could work with Congress to create new legislation that would codify the registration requirements. Such new statutory text could come through an FAA reauthorization legislation. Currently, FAA is funded through September 2017 under the FAA Extension, Safety, and Security Act of 2016 (Public Law 114-190). To keep FAA funded beyond that date, Congress will have to enact another reauthorization bill. Should they desire, Congress could mandate a recreational drone registration requirement as part of that reauthorization legislation.

Primary Author 
Andrew Pericak, MEM; Bryan McMahon
Editor(s) 
Michael Clamann, PhD
Recommended Citation 
License 
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