In a ruling issued last week, the U.S. Court of Appeals for the District of Columbia Circuit vacated the FAA’s Registration Rule for small unmanned aircraft systems (UAS or drones) that are operated for recreational purposes, otherwise known as “model aircraft.” If the ruling stands, hobbyist and recreational drone enthusiasts will no longer be required to register their drones with the FAA. The ruling does not affect existing requirements for commercial operators to register their UAS with the FAA.
In response to news events involving careless operators misusing drones, including crashes at stadium sporting events and hundreds of alleged incidents involving close-encounters between UAS and manned aircraft, shortly before Christmas 2015, the FAA rushed to promulgate a new registration rule that required model aircraft to be registered with the FAA. Since the rule went into effect, more than 800,000 operators have registered their drones with the FAA. To put that in perspective, there are only around 320,000 manned aircraft registered with the FAA.
The Court sided with Plaintiff hobbyist John Taylor who argued that the FAA’s Registration Rule, as it applies to model aircraft, directly violates Section 336(a) of the FAA Modernization and Reform Act of 2012, which states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”
In an effort to sidestep Section 336(a)’s prohibition on promulgating rules regarding model aircraft, the FAA argued that the new Registration Rule, was not actually a new rule. Through a bit of legal gymnastics, the FAA tried to argue that under existing statutes requiring aircraft to be registered, the agency already had the authority to require model aircraft to be registered, and that they had previously exercised discretion not to enforce aircraft registration requirements with respect to model aircraft. Using this theory, the FAA claimed that the Registration Rule was not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.”
The Court rejected the FAA’s argument, stating:
“The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification – on people who previously had no obligation to engage with the FAA. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. In short, the Registration Rule is a rule regarding model aircraft.” (Internal citation omitted.)
In addition to challenging the FAA’s registration rule, the Plaintiff also challenged the FAA’s prohibition contained in Advisory Circular 91-57A on the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. The Court dismissed the challenge to the Advisory Circular on procedural grounds, finding that Plaintiff missed the 60-day deadline for challenging the Advisory Circular.
Shortly after the Court’s ruling, the FAA released the following statement:
We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.
Should the FAA wish to challenge the Court’s decision (and they almost surely will), there are two potential avenues for doing so. The first is to seek an en banc review by all of the judges sitting on the U.S. Court of Appeals for the District of Columbia. The second option, which the Court hinted at in its ruling, would be to seek a legislative fix from Congress, most likely in the FAA Reauthorization Bill that Congress will need to pass later this year to continue FAA funding. The Court wrote: “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.”