On May 19 2017 in Taylor v Huerta(1) the US Court of Appeals for the DC Circuit vacated a rule requiring individuals who fly small – weighing between 0.55 and 55 pounds on takeoff – drones and other model aircraft for hobby or recreational purposes to register with the Federal Aviation Administration (FAA).
Taylor serves as a reminder that, despite rapid advancements in drone technology, the regulators – and society – are still in the early stages of figuring out how to integrate these versatile devices into US airspace.
In December 2015 in response to concerns that "hundreds of thousands" of consumer drones would be unleashed on unsuspecting airspace during the holiday season,(2) the FAA issued the Registration and Marking Requirements for Small Unmanned Aircraft Rule.(3) The registration rule targeted 'model aircraft', which are unmanned aircraft capable of sustained flight in the atmosphere, flown within the visual line of sight of the operator for hobby or recreational purposes.(4)
The registration rule required individuals aged 13 or older who operate any model aircraft weighing more than 0.55 pounds (250 grammes)(5) to register with the FAA (for further information please see "Rise of the drones"). Registration was effective for three years, cost $5 and required the operator to provide the FAA with their name, home address, email and credit card information. Failure to comply could result in civil penalties, fines of up to $250,000 and even prison time.(6)
The registration rule faced immediate opposition from hobbyists and hobby organisations.(7) John Taylor, an attorney and model aircraft enthusiast, filed a pro se challenge to the registration rule on December 24 2015.(8)
Taylor alleged that the FAA had violated Section 336 of the FAA Modernisation Act 2012, known as the 'Special Rule for Model Aircraft'.(9) Section 336(a) of the act prohibits the FAA from promulgating "any rule or regulation regarding a model aircraft".(10)
The Administrative Procedure Act defines a 'rule' as "a statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy".
The registration rule expressly referenced model aircraft in its text – and even used the exact same definition for 'model aircraft' as the act – and prescribed new obligations and requirements for such aircraft.(11)
As a result, the DC Circuit held that the registration rule was a "rule regarding model aircraft". Because such rules are prohibited by the act, the registration rule was unlawful. As Judge Kavanaugh stated: "statutory interpretation does not get much simpler."(12)
Taylor is narrow in scope. It applies only to model aircraft, which are small unmanned aircraft flown for recreational or hobby purposes. All other uses, including commercial uses, of unmanned aircraft remain bound by the registration and certification requirements of the Federal Aviation Regulations Part 107.
Taylor reinforces the fact that Congress has tied the FAA's hands with regards to model aircraft regulation. As a result, any further attempts to regulate consumer use of drones for recreational purposes would need Congressional authorisation or some other means of bypassing Section 336 of the act.
It will be interesting to see if the FAA decides to lobby Congress to grant it authority over model aircraft in the coming weeks and months. There is an opportunity for Congress to grant it such authority because the FAA is going through its reauthorisation process this year.
For further information on this topic please contact Joshua A Druckerman at Katten Muchin Rosenman LLP's New York office by telephone (+1 212 940 8800) or email ([email protected]). Alternatively contact Timothy J Lynes or Brett Seifarth at Katten Muchin Rosenman LLP's Washington DC office by telephone (+1 202 625 3500) or email ([email protected] or [email protected]). The Katten Muchin Rosenman LLP website can be accessed at www.kattenlaw.com.
Endnotes
(1) Taylor v Huerta, 15-1495 (DC Circuit May 19 2017).
(2) Press Release – FAA Announces Small UAS Registration Rule, Federal Aviation Administration (December 14 2015).
(3) Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed Reg 78593 (December 16 2015).
(4) FAA Modernisation and Reform Act of 2012, Pub L 112-95, 126 Stat 11 (codified at 49 USC Section 40101) Section 336(c) (2012).
(5) The FAA helpfully clarified that 250 grammes was approximately the weight of "two sticks of butter", "Your guide to obeying the new drone laws", CNN.com (December 25 2015).
(6) Registration and Marking Requirements for Small Unmanned Aircraft.
(7) Academy of Model Aeronautics, Update – UAS Registration Frequently Asked Questions, AMA Government Relations Blog (February 4 2016).
(8) Taylor also challenged the FAA's Advisory Circular 91-57A, which prohibited the operation of model aircraft in certain areas such as the restricted zone around Washington DC on similar grounds. However, 49 USC Section 46110(a) requires that any challenge to an FAA order be filed within 60 days of the issuance. Taylor's challenge to the Advisory Circular was untimely, and was therefore denied. Taylor, at *9-10.
(9) FAA Modernisation and Reform Act of 2012, Pub L No 112-95, 126 Stat 11 (codified at 49 USC Section 40101) Section 336 (2012).
(11) Registration and Marking Requirements for Small Unmanned Aircraft.
(12) Taylor, 15-495 at *7 (DC Cir May 19 2017).
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