Interested parties awaited the next move by the Federal Aviation Administration following a federal appellate court ruling that invalidates the online drone registry the agency rushed to create in December 2015. The ruling, viewed as a major setback for the FAA, leaves in limbo a database containing the names of more than three quarters of a million drone hobbyists.
“This case is a big deal,” said Jonathan Rupprecht, an aviation attorney based in West Palm Beach, Florida, who helped drone hobbyist John Taylor challenge the FAA’s “Registration and Marking Requirements for Small Unmanned Aircraft” final rule that created the national drone registry. “In the FAA trying to do this regulatory land grab, they stepped on a landmine.”
Taylor argued that requiring the owners of small drones and model aircraft to register their names and affix an identification number to their aircraft contravenes the protections Congress afforded model aircraft enthusiasts in the FAA Modernization and Reform Act of 2012. A provision of that legislation—Section 336, the Special Rule for Model Aircraft—states that the agency “may not promulgate any rule or regulation regarding a model aircraft” that is flown for recreational purposes, so long as it is operated in accordance with safety guidelines.
In a decision dated May 19, the U.S. Court of Appeals for the District of Columbia Circuit found in Taylor’s favor and vacated the FAA’s registration rule as it applies to model aircraft. “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,” the court stated. “The registration rule is unlawful as applied to model aircraft.”
The decision leaves the FAA’s drone registry in limbo. As of May 19, 763,678 hobbyists had registered through the agency’s online system, paying a $5 fee to obtain a single identification number for any small drones they operate. The agency must decide what to do with the registration information it has collected and whether to refund the fee to hobbyists. As an incentive, some were refunded when the registry was launched, but had all paid the fee it would amount to some $3.8 million.
The FAA on May 19 said it was carefully reviewing the appeals court 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,” the agency stated. While it could seek a rehearing or petition the U.S. Supreme Court, observers predicted the FAA would seek a remedy from Congress through new legislation. Taylor is also challenging the FAA’s Part 101 regulation that allows the agency to decide if a recreational drone is being flown in an unsafe manner—a suit that was consolidated with a legal challenge by the Electronic Privacy Information Center over the absence of privacy rules for small commercial drones.
“I think it’s a pretty embarrassing loss for the agency and I think for the Department of Justice,” which argued the government’s case, said Loretta Alkalay, an aviation attorney, former FAA counsel and adjunct professor at Vaughn College of Aeronautics and Technology who also assisted Taylor. “I know when I worked at the FAA, the department was really loath to go before the court, especially the Court of Appeals, with a losing case and I think they had to have known this was a losing case.”
Alkalay added: “What the politics behind them going forward with it are, I don’t know. But I would suspect, given how clearly and emphatically the three-judge panel decided the case…if they do anything, they’re going to look for a legislative solution.”
The Association for Unmanned Vehicle Systems International, the Small UAV Coalition, the Commercial UAV Alliance and the Drone Manufacturers Alliance issued statements supporting the drone registration system, in general saying that it promotes accountability and responsible use of the airspace system. The Muncie, Indiana-based Academy of Model Aeronautics (AMA) which is separately challenging the FAA’s interpretation of Section 336 in the D.C. Circuit, applauded the decision.
“We have repeatedly argued that federal registration for our community is duplicative and unnecessary, as our members already register their model aircraft with AMA,” the academy said. “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.”
Responding to a rash of rogue drone sightings by airline pilots, often in the vicinity of major airports, the U.S. Department of Transportation (DOT) under former secretary Anthony Foxx announced plans to establish a national registry to keep track of recreational drone users in October 2015. It planned to activate the registry by the end of that year through an “interim final rule,” a provision that allows a federal agency, upon finding “good cause,” to produce a regulation without following the usual notice-and-comment process.
Within 10 days of the DOT announcement, the FAA named a 26-member task force to help it develop the registration process. The members represented aviation and unmanned aircraft trade associations, drone and camera suppliers, and major retailers including Amazon, Wal-Mart and Best Buy. They settled on 250 grams—about half a pound—as the minimum weight of a drone requiring that its owner register, and 13 years old as the minimum age. The FAA accepted those recommendations and added a $5-per-person fee. The final rule, which contained a new Part 48 online registration process, became effective on Dec. 21, 2015.
On December 23 that year, Taylor, of Silver Spring, Maryland, a senior government relations counsel with a major insurance company, filed suit in the U.S. District Court of Maryland seeking an injunction to stop the registry before Christmas day. The judge conducted a hearing the same afternoon by telephone, and gave the FAA 11 days to respond by brief, he said. The agency instead advised Taylor to file suit with the D.C. Circuit, which has jurisdiction over petitions for review of federal regulations. Taylor then contacted Rupprecht, who in a lengthy overnight call helped him draft the filing by December 24.
A collaboration of four lawyers—Rupprecht, Alkalay, Peter Sachs and Kathy Yodice—helped Taylor draft and edit court filings during the proceedings. The D.C. Area Drone Users Group raised more than $5,000 through a crowdfunding campaign to help him cover copying and filing fees.
Discussing the case with AIN, Taylor acknowledged that the FAA is challenged to ensure safe and responsible flights by recreational drone users. “It’s a challenge; I admit that,” he said. “I’m not sure what the solution is, but this registry wasn’t it. The registry has never been used to hold anyone accountable. It doesn’t have much potential to work because nobody’s going to leave their number on (a drone) and fly recklessly—if they’ve even registered. A year and a half of this, millions of dollars spent, hundreds of thousands of Americans having to register with the federal government and they’ve got absolutely nothing to show for it.”