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Hobbyist drone registration ruled unlawful

From around Kalmbach
By Lauren Sigfusson
By Leah Froats
Published: May 19, 2017
Originally published at

The U.S. Court of Appeals for the District of Columbia Circuit has reached a ruling on the Taylor v. FAA case regarding hobbyist drone registration.

The ruling, filed today, determines that the FAA was outside its rights in enforcing a new rule for hobbyist drone operators. As such, the requirement was determined to be unlawful — in what appears to be the first federal court ruling on drones. The ruling does not affect commercial drones.

In an effort to promote safety and accountability among drone operators, the FAA promulgated a rule known as the Registration Rule. This rule required drone hobbyists to register their aircraft through an online portal on the FAA’s website.

But many drone hobbyists didn’t take kindly to this new registration rule.

The case

John Taylor, a Maryland insurance lawyer and lifelong aviation hobbyist, filed a lawsuit on Dec. 24, 2015, against the FAA in the Court of Appeals for the District of Columbia arguing that the FAA did not have the authority to impose registration rules over model aircraft, which includes recreational drones.

Taylor’s main argument against the FAA’s registration requirement was that the FAA is prohibited by Section 336 of the 2012 FAA Modernization and Reform Act from regulating model aircraft. But what are model aircraft? Well, the FAA says unmanned aircraft operated for recreational purposes are known as “model aircraft.”

Here’s the portion of 336 that’s brought into question: “Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, 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.”

Taylor and Jonathan Rupprecht, a drone lawyer who assisted Taylor with the case, argued that the streamlined, web-based registration system is a new “rule or regulation” imposed upon model aircraft owners.

The FAA disagreed, arguing in its official sUAS registration rulemaking document: “While Section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements.”

Well, the federal Court of Appeals did not side with the FAA.

The ruling

The D.C. Court’s ruling states that Taylor, and many other hobbyist drone operators, were correct in their criticisms of the FAA’s drone Registration Rule. The ruling reads:

“Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft.’ Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.”

This violation of the FAA Modernization and Reform Act of 2012 nullifies the Registration Rule — that means hobbyist drone operators are no longer required to hold FAA registration for their drones. Many hobbyist operators are hailing the ruling as a victory, but the ripple effect of the ruling has the potential to affect the drone industry in dramatic ways.

Rupprecht says, “The FAA made a mistake in pursuing this. Basically, what they tried to argue was that they had authority from Congress to regulate these aircraft going back to 1958. But it’s a simple matter of chronology. Section 336 came along later, so that’s what counts. And the court agreed.”

What it means

Theories abound as to what will happen now. There is a potential for the Department of Justice to appeal the ruling, but aviation attorney Loretta Alkalay finds the option unlikely.

As for the FAA, it says it is carefully reviewing the decision.

"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," says an FAA spokesperson. "We are in the process of considering our options and response to the decision.”

Despite pushback from hobbyists, registration served an important purpose in the drone community. It helped the FAA track the amount of hobbyist users, increased operator accountability and consumer knowledge, and enabled an understanding of where drone use was most prevalent.

There is some speculation that state and local regulation will fill the void. However, according to a 2015 FAA Fact Sheet, states are unable to create registration requirements for drones.

According to the document, "Because federal registration is the exclusive means for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval."

Of course, that rule was based on the fact that there was a federal registration system in place for hobbyist drones. Now, that may change.

Though, Rupprecht points out that today’s opinion doesn't resolve all the outstanding legal challenges to the FAA’s regulatory authority in this area. Taylor v. FAA consolidated three related lawsuits, but left another challenge to the FAA’s authority to regulate model aircraft separate. In that lawsuit, the Electronic Privacy Information Center is challenging the FAA’s authority to regulate model aircraft under Part 101, which relates to balloons, kites, and rockets.

The ruling is yet another change for an industry that faces constantly moving regulatory targets. How this will affect the many other moving pieces for both hobbyists and commercial drone users is unclear for now — but the FAA’s response will determine just how monumental the ruling will be.

Note: This piece has been updated to include a statement from the FAA and additional reporting from Jason Krause.