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Federal Court of Appeals Strikes Down FAA’s Registration Rule Governing Recreational Drones

05/20/2017

By: Brad Elward, belward@heylroyster.com

On May 19, 2017, the United States Court of Appeals for the D.C. Circuit in Taylor v. Huerta, 2017 U.S. App. LEXIS 8790 (May 19, 2017), struck down the so-called Registration Rule promulgated in 2015 by the Federal Aviation Administration (FAA). The Registration Rule, part of the Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015), requires model aircraft owners, including non-commercial drone users, to provide their names, physical mailing and email address, and other information as the FAA may choose, and requires payment of a fee. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. 80 Fed. Reg. 78,630. In practice, registrations are performed through an FAA web site, https://registermyuas.faa.gov/.

In 2012, Congress passed the FAA Modernization Act (49 U.S.C. § 40101) which codified the FAA’s “long-standing hands-off approach” to the regulation of model aircraft. According to section 366(a) of the Act, the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defined a “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 of recreational purposes.” Id. § 336(c). The Registration Rule’s definition of “model aircraft” is identical to the definition provided in section 336(c). See 80 Fed. Reg. 78,604.  

The plaintiff in the case, John Taylor, is a model aircraft hobbyist who lives in the Washington, D.C., area. Taylor has operated model aircraft from his home and wants to continue to do so without registering or complying with the new flight restrictions. Taylor challenged the FAA’s Registration Rule as overly expansive and in violation of section 336(a). The court of appeals agreed, finding that the FAA’s Registration requirement “is undoubtedly a rule” which stands in direct violation of section 336(a). Taylor, 2017 U.S. App. LEXIS 8790, *9.

In short, the 2012 FAA Modernization and reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler.

Id., *7. According to the court, [t]he Registration Rule is unlawful as applied to model aircraft.” Id. The court opined that the Registration Rule creates a new regulatory regime for model aircraft that previously did not exist. The court pointed out that while aviation safety is “obviously an important goal,” policy considerations cannot override the text of the Act. Id. “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft.” Id.

The plaintiff also challenged Advisory Circular 91-57A, which prohibits the operation of model aircraft in various restricted areas including the Flight Restricted Zone around Washington, D.C. The plaintiff argued that these restrictions also violated section 336(a). The court of appeals, however, refused to consider the challenge to 91-57A, finding it untimely. According to the court, the plaintiff did not file his challenge within 60 days of the order’s issuance, as required by 49 U.S.C. § 46110(a).

Taylor marks the first federal court of appeals to issue an interpretation of the 2015 FAA regulations. Whether the case will be reviewed by the United States Supreme Court is unknown, but given the plain language of the Act prohibiting such FAA regulation, it seems implausible. We will continue to monitor this and other decisions and provide updates as necessary.