D.C. Circuit, Appeals Court rules on the statutory validity of the FAA’s drone Registration Rule and restricted zones (Taylor v. Huerta)
What it does
Determines that the FAA’s drone Registration Rule does not comply with statutory text in the 2012 FAA Modernization and Reform Act and is thus invalid with regard to model aircraft.
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:
- The definition of “model aircraft” as used in the Rule matches that as used in the 2012 FAA Modernization and Reform Act (Public Law 112-095; 49 U.S.C. 40101 note);
- 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.
<p>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.</p>
<p>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 (<a href="https://supreme.justia.com/cases/federal/us/511/164/case.html"><em>Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.</em></a>, 511 U.S. 164), policy considerations cannot overrule statutory text.</p>
<p>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.</p>
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.
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.
Endorsements & Opposition
- 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.”
- 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.”