Drone Law Update: Appellate Court Bars FAA from Requiring Hobbyists to Register
The Federal Aviation Administration estimates that small unmanned aerial systems (“UAS”) in the U.S. will increase from 2.5 million in 2016 to 7 million in 2020, 4.3 million hobbyist and 2.7 million commercial. In response to concerns about how the rapid expansion of recreational use may impact the safety of the national airspace system and of people and property on the ground, the FAA issued a rule in December 2015 titled “Registration and Marking Requirements for Small Unmanned Aircraft,” which requires web-based registration for small UAS, including model aircraft (the “Registration Rule”). Failure to register small UAS under the Registration Rule could subject operators to civil and criminal penalties. On May 19, 2017, the United States Court of Appeals for the District of Columbia Circuit struck down the FAA’s authority to issue those registration requirements as to model aircraft. (Taylor v. Huerta, 15-1495, D.C. Cir. 2017.) The Court’s ruling completely changes the regulatory landscape for hobbyist drone operators who could ultimately face different registration processes and requirements in different jurisdictions, and for local regulatory agencies that could now face greater burdens as they develop and administer new registration rules that regulate local drone use.
Appellate Court’s Ruling
Section 336 of the FAA Modernization and Reform Act of 2012 (the “Act”) states that “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.” The Petitioner in Taylor challenged the application of the Registration Rule to model aircraft as unlawful under the Act. The District of Columbia Circuit rejected the FAA’s arguments that the Regulation Rule is consistent with the Act and ruled that “the FAA’s 2015 Registration Rule is a ‘rule or regulation regarding a model aircraft.’ Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.”
The decision in Taylor does not impact the Regulation Rule to the extent that it requires non-model aircraft operators to register their UAS. However, the FAA will now have to find a different way to achieve its goals of ensuring the safe operation of model aircraft UAS or Congress will have to pass legislation amending the Act to grant the FAA authority to promulgate rules and regulations regarding model aircraft.
What’s Next for Public Safety and Privacy Concerns?
The FAA’s inability to impose the Registration Rule requirements on model aircraft may impact efforts by local agencies to address safety and privacy concerns raised by citizens regarding model aircraft use. For example, some local agencies are considering restrictions on model aircraft use in public parks and other public property. It is important to note that the FAA is tasked with ensuring that drones are operated safely within navigable airspace, but the FAA has declined to address the privacy rights of citizens on the ground. Instead, state and local governments are responsible for addressing privacy concerns raised by members of the public.
The Registration Rule required that model aircraft operators display a unique identifier on their small UAS. In the event of an incident or accident, this would allow local agencies to identify model aircraft operated in a dangerous or impermissible manner and trace that model aircraft back to the owner based on the identifier. Registration also provided an opportunity for the FAA to educate model aircraft owners on safety practices before they begin operating. Prior to Taylor, local agencies could have utilized a combination of minimal local regulations and more detailed regulations found in the Regulation Rule to help ensure that model aircraft were appropriately operated.
Unless Congress amends the Act to permit the FAA to impose regulations and rules on model aircraft use, local agencies might now be in the position of considering their own more comprehensive rules and regulations to address citizen concerns regarding model aircraft UAS use. Under this scenario, local agencies would have to take on the administrative burdens that the FAA had been handling, such as processing registration applications (paper and web-based), assessing and collecting fees, managing registration expiration and renewals, and determining and enforcing non-compliance. As a result of Taylor, local agencies might now have to do more than simply report model aircraft operators for failure to register small UAS under the Registration Rule.