On May 19, 2017, a Federal Court of Appeals ruled that the FAA’s Registration Rule, which requires all owners of small unmanned aircraft systems (“UAS” or “drones”) to register with the FAA or risk civil and/or criminal penalties, is unlawful as it applies to drones operated for hobby or recreational purposes in accordance with Section 336 of the FAA Modernization and Reform Act of 2012 (“FMRA”).1 The Court found that FMRA explicitly prohibits the FAA from promulgating any rule or regulation regarding drones operated under Section 336 and effectively relieved “model aircraft” owners from all FAA registration requirements.
Whether the FAA will appeal the ruling or Congress will step in to either amend or repeal the Section 336 prohibition remains to be seen.
The FAA Registration Rule
On December 15, 2015, the FAA promulgated a rule known as the Registration Rule which sought to promote safety and accountability by requiring UAS owners to register their aircraft through an online portal on the FAA’s website. The rule required owners to provide their names; physical, mailing, and email addresses; pay a $5 per-individual registration fee; and required all small unmanned aircraft to display a unique identifier number issued by the FAA. UAS owners who did not comply faced civil or criminal monetary penalties and up to three years’ imprisonment.
Lawsuits from hobbyist drone operators followed almost immediately.
A Matter of Simple Statutory Interpretation
John Taylor, a recreational drone hobbyist and attorney, sued the FAA claiming that FMRA Section 336 specifically prohibits the FAA from promulgating any rules or regulations regarding “model aircraft” which are defined within the statute to include drones flown for hobby or recreational purposes.2 In a unanimous decision, the Court agreed that the FAA overstepped its authority. Noting that “statutory interpretation does not get much simpler,” the Court declared that the Registration Rule violated Section 336’s express prohibition against the FAA’s regulation of model aircraft.
The Court rejected the FAA’s argument that nothing in FMRA prevented it from applying pre-existing statutory provisions, not previously applied to model aircraft, which require aircraft to register before operation. The FAA’s claim that the Registration Rule was therefore not a new requirement, but merely a “decision to cease its exercise of enforcement discretion,” fell flat. The Court found that the Registration Rule created a new regulatory regime for model aircraft which included a registration process that imposed new requirements to register, pay fees, provide information, display identification, and imposed new penalties on model aircraft owners who did not comply.
The Court was equally unconvinced by the FAA’s argument that the Registration Rule is consistent with FMRA’s directive to “improve aviation safety.” The Court noted the FAA’s safety concerns and acknowledged that aviation safety is obviously an important goal, but
maintained that its role was to interpret the text of the Act, adding that “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.”
Industry Reaction to the Taylor Decision
The Taylor decision has received a mixed response from the drone industry. Several industry groups expressed their disappointment with the Court’s decision. The Association for Unmanned Vehicle Systems International, a non-profit organization dedicated to the advancement of drones, issued a statement explaining that “a UAS 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.”3 Along the same lines, The Drone Manufacturers Alliance, maintained that “the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large.”4 Similarly, the Small UAV Coalition expressed concern that denying FAA authority could “inhibit safe integration and ultimately obstruct commercial UAS operations, putting the United States at risk of falling behind global competitors who are increasingly embracing the benefits of UAS.”5 These industry groups expressed an intention to work with Congress on a legislative solution to ensure continued accountability across the aviation industry.
On the other hand, The Academy of Model Aeronautics, a non-profit group organized to promote the development of model aviation, was “encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which [its] members operate.” They added that “[f]or decades, AMA members have registered their aircraft with AMA and have followed our community-based safety programming. It is our belief that a community-based program works better than a federally mandated program to manage the recreational community.”6
Meanwhile, the FAA has taken a measured approach to the decision, stating that it would review the Court’s decision, but not immediately stating whether it would appeal to the U.S. Supreme Court. As of today, the FAA’s website still directs individuals who want to fly UAS “for fun or recreation” to register their UAS.7 We will need to wait and see how the FAA chooses to deal with the online platform as well as the data and fees collected since December 2015.
Taylor Does Not Mean That Recreational Drone Use Is Now Unregulated
To be clear, the Court’s ruling does not mean that hobby or recreational drone operators are not subject to FAA regulation or that all hobby or recreational drone operators no longer need to register with the FAA. Recreational drone operators must either operate in accordance with the conditions set for in Section 336 or comply with the requirements of Part 107, the FAA’s Final Rule on Small UAS. Section 336 requires operators to fly strictly for hobby or recreational purposes, follow a community-based set of safety guidelines, fly within visual line-of-sight, not interfere with and give way to manned aircraft, and provide prior notification when flying within 5 miles of an airport. As long as they do so, owners now will no longer need to register with the FAA. Alternatively, a recreational drone operator may comply with the FAA’s Small UAS Rule (Part 107), instead of Section 336. In that case, the operator is required to obtain a remote pilot certificate or be under the direct supervision of someone who holds such a certificate and will still be required to register their drone with the FAA as a “non-modeler.”
Lastly, it should be noted that the decision does not impact the FAA’s authority to prosecute hobbyists who endanger the safety of the national airspace system. As explicitly stated in Section 336(b): “Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”
1 Taylor v. Michael P. Huerta, as Admin., Federal Aviation Administration, No. 15-1495 (D.D.C. May 19, 2017).
2 Taylor also challenged FAA Advisory Circular 91-57A, which prohibits the use of drones in restricted areas around Washington, D.C. The court dismissed that part of Taylor’s petition on the ground that it was untimely.