Drone Lawsuits

Drone Lawsuits & Litigation Database (2020)

 in Drone Lawsuits

drone-lawsuitsInterested in learning about drone lawsuits?

I have compiled the various drone lawsuits/litigation/prosecutions into the list below.

There has been a wide range of drone-related cases in the last couple of years ranging from flamethrowers mounted on drones to a drone crashing into a wedding guest.  I’m going to refer them collectively as drone lawsuits.

Some of the drone lawsuits I have written in-depth articles on, while other drone lawsuits I might just cite an article.  If you know of a drone lawsuit that I have NOT put up here, please send me an email! :)

The drone lawsuits list below is broken up into Federal courts, Federal administrative courts (e.g. NTSB), and then state courts. Note that for criminal cases, I ONLY included cases where the prosecutor has chosen to file charges. There are many more individuals who have been arrested for flying a drone but the prosecutors for whatever reason did not choose to file charges. I did not include any drug transportation or prison-drop related prosecutions since those really aren’t drone cases but just drug or contraband cases. 

Notice: I try to keep this drone lawsuits list up to date. This page MIGHT not be up to date with rulings. Think of this page more of a starting point to research further into the final outcomes. 

If you are a person who has a drone-related matter outside of Florida, but you want to work with me, hire a local attorney in your state and tell them to contact me. If you are an attorney and need my help for a drone-related matter, please contact me.

Who in the Drone Industry is Getting Sued? I know.

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Quick Summary on Drone Lawsuits/Litigation:

Most of the criminal cases tend to be prosecuted under the state law equivalent of careless and reckless endangerment or something along those lines. The other batch of prosecutions has to do with violations of exporting technology associated with military drones.

DJI’s lawsuits involve them being on the receiving end of a class action or DJI being the plaintiff in a patent infringement lawsuit.

Then there is everything else. The civil drone lawsuits are all over the place (an Equal Protection Clause challenge against a state drone law, injured people suing drone flyers, products liability, breach of contract, etc.).

Drone Lawsuits in Federal Courts

Federal Circuit Court

  • EPIC v. Department of Transportation– EPIC is suing claiming the Drone Advisory Committee’s use of sub groups that are meeting privately is a violation of the Federal Advisory Committee Act. There are other claims but that is the big one. The D.C. District Court ruled against them and EPIC is appealing it to the D.C. Circuit Court of Appeals.
  • John Taylor v. FAA II  (4th case)- Adjudicated.
  • John Taylor v. FAA I (Really 3 cases. Court consolidated them. ) –  Adjudicated. Taylor beat the FAA. D.C. Circuit held the drone registration rules were illegally created. Keep in mind the National Defense Authorization Act of 2017 overruled this case.
  • Tech Freedom v. FAA – Voluntarily dismissed because this missed statutory time to file. They joined as an amicus brief to the Taylor I set of cases.
  • EPIC v. FAA  II (2016) – Adjudicated.
  • UAS AMERICA FUND, LLC, SKYPAN INTERNATIONAL INC., PETER SACHS (individually and d/b/a Drone Pilots Association), and FPV MANUALS, LLC (d/b/a GetFPV and Lumenier),  – This case has been in abeyance. The plaintiffs were challenging the FAA’s 2014 model aircraft interpretation as violating Section 336 of the FAA Modernization and Reform Act of 2012.
  • Academy of Model Aeronautics v. FAA – This case has been in abeyance since 2014. Same thing as above.
  • EPIC  v. FAA I (2015) – Dismissed.
  • Texas Equusearch v. FAA – Dismissed by the court because an email from a FAA investigator was not the FAA’s final consummation on the issue.

Federal District Court

  • United States v. Jason Muzzicato. Jason is alleged to have used a DJI Phantom 3 with explosives to terrorize his ex-girlfriends house. Failing to register the drone is one of the count.
  • United States v. Eric Lee Brown. Prosecuted for a drone drug drop but what is really interesting is one of the criminal charges was for failing to register the drone. There was a plea agreement.
  • Autel Robotics USA LLC v. DJI -patent infringement action case in US District Court for the Southern District of New York. Complaint here.
  • EPIC v. FAA, Drone Advisory Committee RTCA, & more. – Lawsuit under the Administrative Procedures Act and the Federal Advisory Committee Act to obtain records from the the Drone Advisory Committee.
  • Robert Taylor v. FAA – Class action lawsuit over the registration regulations currently being litigated in the D.C. Circuit seeking around $840 million in damages and fees. Dismissed.
  • Reichert v. FAA – Currently being litigated. Class action lawsuit against the FAA seeking to destroy the FAA registry and get the money back to all those who have registered.
  • Singer v. City of Newton – Struck down the local drone law as illegal.  Federal District Court of Massachusetts struck down the local drone ordinance as being unconstitutional. It was appealed by the City to the appeals court but the City asked for the case to be dismissed which the court granted.
  • FAA v. Haughwout case (the kid with the gun and the drone) is currently being litigated a federal district court in Connecticut and the only order was that the FAA’s subpoena powers were very broad.
  • Flores v. State of Texas -Southern Federal District Court of Texas  case on whether the Texas state drone law violates the Equal Protection Clause.
  • FAA v. Skypan case in the federal North District Court of Illinois.
  • Boggs v. Meredith case in the federal Western District Court of Kentucky which was dismissed. Boggs’ drone was shot down by Meredith. Boggs sued in federal court claiming the drone was in navigable airspace (which means he was not trespassing in Meredith’s airspace) and was entitled to compensation. The court dismissed the case because the court did not have the subject matter jurisdiction to decide the case and the case should be resolved in Kentucky state court.
  • DJI v. Yuneec – DJI is suing Yuneec alleging patent infringement.
  • DJI v. Autel –  DJI files a patent infringment lawsuit.
  • Garmin v. uAvionix- Garmin filed suit against uAvionix for patent infringement.
  • Sives v. DJI  – Class Action lawsuit against DJI regarding software update that allegedly damaged the drones.
  • Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.
  • Justice Laub v. Nicholas Horbaczewski et al – Laub alleges that Horbaczewski breached a contract. They are demanding $9,900,000 from Horbaczewski and Drone Racing League, Inc.  Both Horbaczewski and Drone Racing League, Inc. have sued in New York state court asking for a declaration that Laub is not an owner of Drone Racing League.
  • United States v. Porrata – Defendant was sentenced to 5 years in prison and a $1.5 million fine for scamming investors with their sham drone manufacturing company.
  • Hobbico is doing Chapter 11 banktupcy.
  • Ehang filed for Bankruptcy. 
  • The Inspector General for the Department of Transportation mentioned that their have been some investigations by the Department of Transportation against drone flyers.  “Finally, prosecuting UAS owners who violate FAA regulations or engage in illegal flight activities has been challenging. Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions. Ultimately, further attention is needed to ensure FAA has strong oversight and enforcement mechanisms in place so it can effectively identify violations and mitigate the safety risks associated with increased UAS operations.”
  • Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. et al. Filed April 16, 2018 in California Central District Court. Holly Cal Productions was hired to film a wedding which resulted in a patron being hit in the eye and going blind.  The lawsuit is surrounding the insurance policy’s aircraft exclusion.
  • QFO Labs, Inc. v. Parrot, Inc., Parrot S.A., and Parrot Drones, S.A.S., – QFO sued Parrot for patent infringement.
  • UNITED STATES OF AMERICA v. CORVUS EYE PRODUCTIONS LLC – FAA was investigating Corvus and the owner. They sent a subpoena to the owner of Corvus. One thing led to another and the FAA worked with a U.S. Attorney to request a federal judge to order Corvus and owner to comply with the subpoena. The judge ordered the subpoena because the owner defaulted.

United States Court of Federal Claims

FAA and/or National Transportation Safety Board

From the U.S. Government Accountability Office report dated October 17, 2019,

“Of the 158 enforcement investigations opened from October 2015 to October 2018, 98 resulted in administrative action or legal enforcement action, such as a warning notice or a civil penalty. Of the 98 completed actions, 51 involved the assessment of civil penalties, 44 resulted in administrative actions, and 3 resulted in the suspension or revocation of UAS remote pilots’ certificates, according to the data FAA provided. During this time frame, FAA levied civil penalties ranging from $250 to $55,000.”

From the U.S. Government Accountability Office May 2018 report,

drone-enforcement-actions-table

 

 

  • In the matter of Space-Crafting, Inc. – Before DOT Administrative Law Judge.
  • FAA v. Pirker case that was all over the news was appealed only up to the full National Transportation and Safety Board (NTSB).
  • See my  23 FAA enforcement actions analysis below.
  • FAA v. Mical Caterina – FAA started investigating Mical for a flight. FAA subpoened him. Mical sent in some information. FAA prosecuted Mical for $55,000.
  • FAA v. Ralph Rebaya– FAA revoked the private pilot certificate of Rebaya.
  • Conflicting numbers:
    • At least 70 enforcement actions since 2014. A senior attorney from the FAA had this in this slide from the 2018 FAA Symposium.
    • 49 as evidenced from the GAO report on page 32.

Federal International Trade Commission

  • Autel filed a complaint against DJI in the Federal International Trade Commission. on August 30, 2018.

Federal Communications Commission

Other: (Because I don’t know anything else).

  • Department of Transportation has been doing some investigations on some UAS operators.  The DOT IG’s office testified, “Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and 9 were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions.”  23-10-9= 4 still open?

Drone Lawsuits in State Courts

California 

Colorado

  • Boustred & Horizon Hobby v. Align Corporation – On appeal, court affirmed lower courts judgment denying Align’s motion to dismiss the case against them. Align is a Taiwanese company who sells model aircraft through Horizon Hobby. Boustred lost an eye when the toy helicopter broke and is now suing Align and Horizon Hobby under strict product liability. The appeals court affirmed the trial courts ruling that personal jurisdiction can be held over a Taiwanese company.
  • Richard T. Jacky and Tamsin Jacky v. Parrot, S.A. et al. – Products liability lawsuit where a guy injured his eye with a Parrot rolling spider drone.

Connecticut

  • Pedro Rivera, v. Brian Foley, Edward Yergeau, & Hartford Police Department– Plaintiff works for a TV station and responded to a police scene while NOT working (his own free time). Plaintiff flew his drone and the police officer responded to the plaintiff’s flight. Police officer called Plaintiff’s employer and made suggestions that Plaintiff should be disciplined to maintain goodwill. Plaintiff was suspended for a week. Plaintiff sued claiming his constitutional rights were violated.

Florida

Kentucky

  • Commonwealth of Kentucky v. Meredith – The famous “drone slayer” case where Meredith shot down the drone. He was prosecuted for criminal mischief and wanton endangerment. The judge dismissed the case saying, “He had a right to shoot at this drone, and I’m gonna dismiss this charge[.]” Note: there is also a federal district court case associated with this case.

Lousiana

  • State v. Benson – Drone pilot was arrested and charged with flying a drone with the intent to surveil.

Michigan

Nevada

New Hampshire

  • Ellis v. Billcliff
  • Ellis v. Searles Castle – Billcliff, the groom, was getting married at Searles Castle. He was flying a drone. He went to go dance and put his drone down. Someone flew the drone and crashed it into a wedding guest, Ellis. She is now suing Billcliff and also the Searles Castle for damages.
  • Eaton, the other girl injured along with Ellis, is also suing Billcliff and Searles Castles.

New Jersey

  • Russel Percenti shot down a drone and was prosecuted for possession of a weapon for an unlawful purpose and criminal mischief.

New Mexico

New York

  • State v. Beesmer – Adjudicated not guilty. Flew his drone outside a hospital and was charged with unlawful surveillance. Held not guilty by jury.
  • State v. Daniel Verley –  New York City teacher crashed his drone into U.S. Open tennis match. He was prosecuted. They entered a plea deal to do community service.
  • State v. Riddle –  Guy crashed into the Empire State Building. Was prosecuted. Pleaded guilty to disorderly conduct. He has to pay a $200 fine and complete two days of community service.

North Dakota

  • State v. Turgeon – Adjudicated not guilty. Criminal prosecution for flying a drone allegedly near an airplane near the Dakota Pipeline protests. He was charged with a felony and two misdemeanors.
  • State v. Dewey – Criminal prosecution for stalking. Dewey was flying a drone during the Dakota Pipeline protests.
  • State v. Brossart – Not really a drone case, but a predator drone was used to track down a man. The crazy part is this was in 2012! This is more of a 4th amendment case.

Pennsylvania

Tennessee

  • State v. Haddox – Haddox was flying his drone during “CMA Fest activities and the Predators watch party on Broadway.” He was arrested and charged with reckless endangerment and trespass. The “reckless endangerment charge stems from Haddox being unable to maintain line of sight of the drone and flying it over a ticketed event with thousands of persons present.” The two dockets are here.

Washington State

  • City of Seattle v. Skinner – First drone flyer ever to be sentenced to jail for flying a drone. He flew over a gay pride parade and the drone crashed into a woman.
  • The woman who was injured is suing Skinner to recover damages for the crash.
  • City of Seattle v. Kelley – This is the famous Seattle Space Needle crash that was all over the internet.  Kelley was charged with reckless endangerment. He pleaded guilty to reckless endangerment and “received a suspended jail sentence of 364 days after entering his guilty plea” and “was also fined $5,000 with $4,750 suspended.”

Wisconsin

Other:

GoPro received a class action shareholder lawsuit. The lawsuit surrounds statements made by the CEO regarding their drone which was later canceled.  A second class action against GoPro was also filed. 

 

FAA Enforcement Actions Prior to June 2016.

Keep in mind that Part 107 or 101 was not in effect at this time.

(June 11, 2016)  – Recently released documents from a FOIA request reveal a total of 23 FAA enforcement actions against drone operators. Here are the important take-aways I’ve found with the cases that have been released via Jason’s great work over at Motherboard.

Quick Summary (Explanations and Graphs Below)

  • Not everything was released.
  • None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited.
  • None of the notices or orders say anything about 333 exemptions.
  • Two drone companies were targeted.
  • Defendants received reduced penalties when an attorney was involved.
  • No one had a 333 exemption in effect at the time of the flights.
  • Two certificated pilots were targeted.
  • 1 case started with a subpoena.
  • 151 days is the average from the date of the first violation to a notice from the FAA.
  • Phantoms were the most popular aircraft.
  • Many of the flights occurredin Class B Airspace.
  • The FAA enforcements appear to be spread out chronologically but not geographically.
  • 4 of the flights were commercial.
  • 5 notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying.
  • 9 of the cases also had some type of arrest or fine under state or local law for the flight.
  • The FAA did NOT charge the defendants with all the regulations that were violated.

Note: I’m not going to be citing directly to legal sources because I don’t want to educate my competition. Take a look at my drone attorney bio and you’ll see a graph of the drone law firms with the number of 333 exemptions they have filed. You’ll see that a really large majority of them don’t have much drone law experience. Remember, when hiring an attorney, don’t hire a poser, hire an attorney who is a commercial pilot.

If you want to use the graphs, I only require that you leave the watermark intact. :)

Not everything was released.  There are more enforcement actions that I know of than what was released. I won’t say anything else so as to not “inflame” their situations due to media attention.

None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited. This is a very important point. A 333 would provide a defense to those charges, provided the operator was following the exemption, but you have to remember, all the regulations apply. The 333 only exempts you from some of the regulations, not ALL. The 333 exemption isn’t your own little world to operate in. The Federal Aviation Regulations still apply.

Drone law violations

Compare with the regulations that are in an exemption:

  • 14 C.F.R. § 61.23(a) & (c)
  • 14 C.F.R. § 61.101(e)(4) & (5)
  • 14 C.F.R. § 61.113(a)
  • 14 C.F.R. § 61.315(a)
  • 14 C.F.R. § 91.7(a)
  • 14 C.F.R. § 91.119(c)
  • 14 C.F.R. § 91.121
  • 14 C.F.R. § 91.151(a)(1)
  • 14 C.F.R. § 91.405(a)
  • 14 C.F.R. § 91.407(a)(1)
  • 14 C.F.R. § 91.409(a)(1) & (2)
  • 14 C.F.R. § 91.417(a) & (b)

What is the take away here? Everyone of the flights could have been cited with many more violations of the regulations. The FAA left a lot on the table with charges. So why would anyone get a 333? Because the 333 exemption would keep additional charges from the second list above “off the table,” provided you were operating under the 333. It would be beneficial as a partial defense.

Another take away is that the FAA treats 91.13(a) like bacon, they put it on everything to make it better.

None of the notices or orders say anything about 333 exemptions. This does give us a clue of the future dynamics when everyone has a 107 certificate. A 107 certificate being suspended or revoked would be bad when mostly everyone has one in the future. Remember that suspension actions, civil penalties, and revocations go on your record.

Two companies were targeted. Most individuals think the FAA is targeting individuals only but they have targeted at least two companies here. Without getting into the distinctions of how involved the drone operators were involved in the companies fined, this is one of the reasons why large companies hire 333 operators so they are not “on the hook” for the flight of the drone operator. What is interesting is the FAA didn’t go after the individuals operating the drones as well! However, SkyCamUSA, LLC managed to escape this but their pilot David Quinones, the “mistletoe” pilot from back in 2014 who cut a reporters nose, received a pilot license suspension of 90 days while the company was not fined separately. Future enforcement actions could see the 333 operator AND the pilot on the receiving end of enforcement actions.

Defendants received reduced penalties when an attorney was involved. Except for Skypan, because it has not yet settled, every case that had an attorney representing the defendant resulted in a reduction in the proposed civil penalty from the original notice. In the following graph, the cases where an attorney was involved are navy blue while the pro se defendants are light blue.

attorney negotiations chart

One important thing to remember is that the attorney-client privilege applies to communications between an attorney and his client, not an attorney and a “consultant.” This is an important distinction because a prosecutor could subpoena the consultant to turn over documents or to testify as a witness in an enforcement action against you!

No one had a 333 exemption in effect at the time of the flights. Four of the flights were commercial but the operators didn’t have 333s in effect at the time. This means we don’t know if the FAA has or will pull a 333/COA as part of an enforcement action.

Two certificated pilots were targeted. Two of the cases involved people with pilot licenses. A student pilot license was voluntarily revoked for a reduction in fine from $5,000 to $3,000 and a commercial certificate was voluntarily suspended for 90 days. These will show up on their airmen records. As time goes on, many more people are obtaining manned aircraft certificates or their 107 certificate.

1 case started with a subpoena. There are three situations, at least that I know of, where subpoenas have been issued at the front end to go on fishing expeditions to figure out more evidence against the potential defendants. Skypan is the first example of this and the third instance is the Connecticut gun drone kid which is being fought out currently. The FAA might be switching up tactics to file a subpoena first and then use the evidence gathered as grounds for more violations. If they don’t “get” you on the civil penalty, they will at least get you to spend time and money on an attorney fighting the subpoena.

151 days is the average from the date of the first violation to a notice from the FAA. 

days between drone violation and letter

Note: Adam Rupeka’s says “0” because the scan of the document was so bad I could not determine the letter date.

Phantoms were the most used aircraft.  Yes, you guessed it. The majority of the aircraft involved in these enforcement actions were Phantoms. I just lumped them all into one category as opposed to breaking down into different models of the Phantom. The Phantom is starting to be like the AK-47 of the drone world.

Drones

Many of the flights occurred in Class B Airspace. Class B airports tend to be in major cities. The radius for Class B airspace extends 5 nautical miles out (10 NM diameter) and in some instances even more. Here is a graph of all the types of airspace that the defendants flew in. Notice that a defendant can fly in different types of airspace for one flight.

drone airspace violations

The FAA enforcements appear to be spread out chronologically but not geographically. Some of the notices appear to have been filed around the same date. Maybe the prosecutor “batched” them on the side of their desk.

drone law violation notices timeline

FAA Enforcement Team Regions

FAA Regions To Understand Drone Law Enforcement

4 of the flights were commercial.  The FAA is not targeting only recreational flyers but also commercial.

5 of the notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying. This is an important distinction because Section 336(b) is the FAA’s good old fallback position in enforcements. FPV racers take note. The FAA explained its view in the 2014 Model Aircraft Interpretation and said that FPV racing is not compliant with Section 336’s definition of model aircraft requiring line of sight and therefore would not be protected.

Other Drone Facts

9 of the cases also had some type of arrest or fine under state or local law for the flight. You can be prosecuted under state/local law as well as federal law at the same time for the same flight. Also, keep in mind that a 333/COA is helpful for getting local law enforcement off your back as they are generally trying to find operators who do not have 333s. A good example of this is with the City of LA’s ordinance. Law enforcement officers were going around asking people if they had a 333 or not. If you didn’t have one, you could be arrested.

The FAA did NOT charge the defendants with all the regulations that were possible. I went through the facts and noticed a lot of regulation violations. Each flight should have been a $5,500 fine at a minimum. Why? With a typical drone operator, at least 5 regulations are usually being violated in each flight. If the operator switched out batteries, that would be a 2x multiplier because they are violating each of those 5 a second time on the second flight. A two battery job could compile a fine of around $11,000 if a prosecutor really wanted to go after you. It appears that the FAA’s prosecutors were either disorganized as to how to fully prosecute these cases or they were too embarrassed to “throw the book” at the drone operator. As time goes on, I believe the prosecutors will get better at their game and there will be more and more pressure to vigorously prosecute violators. I asked my friend Craig Thompson, a Dallas Aerial Photographer, what he thought of this data and he said, “Given that more than a million drones have been sold in the U.S., the fact that only two dozen fines have been levied is surprising and likely reflects the FAA’s lack of resources, rather than a lack of desire.” I think his statement is correct. As time goes on, we can expect to see many more of these enforcement actions to be more fully prosecuted.

Potential Benefits to the Drone Community.  The FAA’s lack of enforcement has been the catalyst for many states, counties, cities, and towns enacting some laws governing drones. The release of this information can have a positive effect by
showing that the FAA IS doing something. I would suggest giving this article out to any of your elected officials who plan on doing something regarding regulating drones. Tell them to give the FAA time to get “up to speed” on the situation before they pass any laws that will stifle this industry.

EPIC v. FAA, Drone Advisory Committee RTCA, & more.

 in Drone Lawsuits

Brief Summary of the Lawsuit:

April 2018, the Electronic Privacy Information Center (EPIC) sued:

in the United States District Court for the District of Columbia with counts alleging:

  1. Violation of the FACA: Failure to Open Meetings to the Public
  2. Violation of the APA: Agency Action Unlawfully Withheld
  3. Violation of the APA: Unlawful Agency Action
  4. Violation of the FACA: Failure to Make Records Available for Public Inspection
  5. Violation of the APA: Agency Action Unlawfully Withheld
  6. Violation of the APA: Unlawful Agency Action
  7. Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

EPIC alleges, “Although the DAC has been regularly meeting and advising the FAA since September 2016, it has conducted much of its work in secret and released only a small number of committee records.” They are suing to obtain records not released and also to open the DAC’s sub-committees to public access.

EPIC has sued the FAA/DOT at least 3 other times over issues surrounding drones according to my drone lawsuit/litigation database. EPIC currently has another case pending  before the D.C. Circuit Court of Appeals which has consolidated with the 4th Taylor v. FAA case.

Actual Text of EPIC’s Complaint:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER

v.
DRONE ADVISORY COMMITTEE;

FEDERAL AVIATION ADMINISTRATION; DANIEL K. ELWELL, in his official capacity as Acting Administrator of the Federal Aviation Administration and Designated Federal Officer of the Drone Advisory Committee and RTCA Advisory Committee;

RTCA ADVISORY COMMITTEE;

UNITED STATES DEPARTMENT OF TRANSPORTATION; DAVID W. FREEMAN, in his official capacity as Committee Management Officer of the Department of Transportation;

Civ. Action No. 18-833

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–706; and the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for injunctive and other appropriate relief to compel the Drone Advisory Committee (“DAC” or “Committee”) to comply with its transparency obligations.

2. Plaintiff Electronic Privacy Information Center (“EPIC”) specifically challenges (a) Defendants’ failure to make advisory committee meetings “open to the public,” as required by 5 U.S.C. app. 2 § 10(a)(1); and (b) Defendants’ failure to make “available for public inspection and copying” the “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” of the DAC, as required by 5 U.S.C. app. 2 § 10(b).

3. Access to these nonpublic meetings and records would reveal how, if at all, the Drone Advisory Committee has addressed the threat that the deployment of Unmanned Aerial Vehicles (“UAVs” or “aerial drones” or simply “drones”) would pose to the privacy rights of persons in the United States.

Jurisdiction and Venue
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 5 U.S.C. § 704. This Court has personal jurisdiction over Defendants.

5. Venue is proper in this district under 5 U.S.C. § 703 and 28 U.S.C. § 1391. Parties

6. Plaintiff EPIC is a nonprofit organization, incorporated in Washington, D.C., established in 1994 to focus public attention on emerging privacy and civil liberties issues. Central to EPIC’s mission is oversight and analysis of government activities that impact individual privacy. EPIC is a membership organization. The Members of EPIC’s Advisory Board include distinguished experts in law, technology, and public policy.

7. EPIC is the leading organization in the United States addressing the privacy issues that arise from the deployment of drones in the National Airspace System (“NAS”). As early as 2005, EPIC warned the public and policymakers about the adverse impact that drone surveillance would have on individual privacy.1

8. EPIC filed a petition with the FAA in 2012—joined by over 100 organizations, experts, and members of the public—demanding that the agency issue privacy regulations to safeguard the interests of the American public.2 EPIC has also twice brought suit against the FAA to enforce the agency’s obligation to establish privacy protections against drone surveillance. EPIC first sued the FAA when the agency denied EPIC’s 2012 petition and failed to address privacy issues in its first drone rulemaking. EPIC v. FAA, 821 F.3d 39 (D.C. Cir. 2016). EPIC subsequently filed suit to challenge the FAA’s final rule on small drones, a case which is currently pending before the U.S. Court of Appeals for the D.C. Circuit. EPIC v. FAA, No. 16- 1297 (D.C. Cir. argued Jan. 25, 2018).

9. EPIC recently filed a Freedom of Information Act (“FOIA”) suit against the Department of Homeland Security to obtain the agency’s drone policies, reports, and procedures. EPIC v. DHS, No. 18-545 (D.D.C. filed Mar. 8, 2018). In 2016, EPIC obtained key documents through a FOIA request concerning the work of the FAA’s Drone Registration Task Force. And in 2015, an EPIC FOIA case identified significant privacy and maintenance problems with the Department of Defense JLENS program, in which the Department conducted domestic surveillance using blimp-mounted radar and video equipment. EPIC v. Dep’t of the Army, No.  14–776 (D.D.C. filed May 6, 2014). After a JLENS surveillance blimp broke free, downed multiple power lines, and crash-landed in Pennsylvania, the program was eventually cancelled.

10. EPIC maintains one of the most popular privacy websites in the world, https://epic.org, which provides EPIC’s members and the public with access to current information about emerging privacy and civil liberties issues. EPIC’s website includes extensive information about the privacy risks arising from drone surveillance. EPIC frequently posts documents obtained under the FOIA and other open government statutes in order to educate the public about the privacy implications of government programs and activities.

11. Defendant Drone Advisory Committee (“DAC”) is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). Ex. 1 at 3.5 The DAC was established and is utilized by the Federal Aviation Administration (“FAA”) and the United States Department of Transportation (“DOT”). The DAC includes a Drone Advisory Subcommittee (“DACSC” or “Subcommittee”) and at least three task groups: Task Group 1, Task Group 2, and Task Group 3 (collectively, “DAC Task Groups” or “Task Groups”). The DAC, the DACSC, and the DAC Task Groups are all under and part of the RTCA Advisory Committee (“RTCA”).

12. Defendant RTCA Advisory Committee is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). The RTCA is utilized—and was established as a federal advisory committee—by both the FAA and the DOT. The RTCA is also an umbrella organization comprising at least 26 constituent advisory committees, including the DAC.

13. Defendant Federal Aviation Administration is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3). The FAA is also a sub-agency of the DOT.

14. Defendant Daniel K. Elwell is the Acting Administrator of the FAA. Mr. Elwell is also the Designated Federal Officer (“DFO”) of the DAC and the RTCA within the meaning of 5 U.S.C. app. 2 § 10(e)–(f).

15. Defendant United States Department of Transportation is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3).

16. Defendant David W. Freeman is the Committee Management Officer (“CMO”) of the DOT within the meaning of 5 U.S.C. app. 2 § 8(b). Mr. Freeman is responsible for controlling and supervising the DAC, the RTCA, and the DFO of both committees (currently Mr. Elwell). Id.

Facts

The Growing Privacy Risks Posed by Drones

17. The integration of drones into the National Airspace System will adversely affect millions of Americans. Reports of drones threatening the safety of aircraft, civilians, first responders, and law enforcement officers—as well as reports of surveillance by drones on private property and “drone stalking”—are increasing.

18. Many operators enable their drones to surreptitiously observe, record, or otherwise collect information from individuals without their knowledge or consent, even through walls or from thousands of feet in the air.

19. Drones are routinely equipped with high definition cameras that greatly increase the capacity for domestic surveillance.9 Drones can also gather sensitive, personal information using infrared cameras, heat sensors, GPS, automated license plate readers, facial recognition devices, and other sensors.10 Drones are even “capable of locking-on to an individual and following them while shooting video and avoiding obstacles,” including in “a dense forest or urban environments like a warehouse.”

20. Drone use and drone sales are rapidly growing. U.S. drone sales more than doubled between 2016 and 2017,12 and commercial drones are representing an ever-larger share of the worldwide drone market.13 Meanwhile, President Trump has taken steps to effect a “quick and dramatic expansion of drone use” in the NAS.14 Unwelcome Visit, N.Y. Times (Jan. 27, 2016), https://www.nytimes.com/2016/01/28/style/ neighbors-drones-invade-privacy.html.

21. Despite these alarming trends, the FAA has refused to promulgate generally applicable regulations to address the privacy risks posed by drones—even ignoring a Congressional command to do so in the FAA Modernization and Reform Act of 2012.

22. The Drone Advisory Committee, which directly advises the FAA on drone deployment, has the obligation to present to the FAA proposals and recommendations to address widespread and obvious public concerns about the impending risks of drone surveillance in the United States.

23. Yet there is no evidence that the DAC has fulfilled its essential responsibility to assess these risks to the public interest. References to privacy are extremely sparse in the few public DAC records, while the vast majority of DAC records and subcommittee meetings remain closed to the public in violation of the FACA.

The Formation and Structure of the DAC

24. On May 4, 2016, then-FAA Administrator Michael Huerta stated that the FAA was “establishing” the DAC, which he described as “a broad-based advisory committee that will provide advice on key unmanned aircraft integration issues.” Ex 2.16

25. The DAC was in fact “established” by the FAA on or before August 31, 2016. Ex. 3.17 The DAC was “formed under the RTCA federal advisory committee.” Id.

26. The chairman and the original members of the DAC were appointed by the FAA on or before August 31, 2016. Id. The Committee held its first public meeting on September 16, 2016, in Washington, D.C. Ex. 4.18

27. As of March 2018, the DAC was comprised of thirty-two members. Ex. 14.19 Eighteen Committee members are affiliated with corporations or organizations engaged in the design, manufacture, operation, or management of drones. Id. Nine members are affiliated with traditional aircraft operators, airport authorities, or associations of aviation professionals. Id. Two members are university-affiliated researchers, and three members are public officials (only one of whom is elected). Id. No privacy, consumer safety, or other general public interest groups are represented on the DAC.

28. The DAC Terms of Reference—which the FAA “issued,” Ex. 10 at 420—charge the DAC with providing an “open venue” for Committee members to “identify and recommend a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aircraft systems] into the NAS and to develop recommendations to address those issues and challenges.” Ex. 1 at 2.

29. According to the FAA, DAC members are to “discuss key issues and challenges associated with integrating unmanned aircraft in the world’s busiest and most complicated airspace system.” Ex. 2. However, the Committee is to “conduct more detailed business through a subcommittee and various task groups that will help the FAA prioritize its activities, including the development of future regulations and policies.” Id.

30. The DAC Subcommittee was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5.21 The date of the Subcommittee’s first meeting, as with nearly all DACSC proceedings, was not announced and is not publicly known.

31. The DACSC Terms of Reference—which the FAA “issued,” Ex. 10 at 4—state that the Subcommittee’s role is to “support” the DAC, to “present findings to DAC,” and to “[f]orward recommendations and other deliverables to DAC for consideration.” Ex. 6 at 1, 3.22 However, contrary to the DACSC Terms of Reference, FAA officials have repeatedly circumvented the full DAC and worked directly with the Subcommittee.

32. For example, FAA officials have “brief[ed]” and “educat[ed]” the DACSC, Ex. 10 at 8; provided “guidance and assistance to the DAC Subcommittee,” Ex. 11 at 2;23 and personally participated in multiple DAC meetings at which the Subcommittee delivered reports on its work. See, e.g., Ex. 5 at 2–3; Ex. 10 at 3–4, 8; Ex. 12 at 2, 7.24

33. Moreover, the DAC’s Designated Federal Officer—previously Acting FAA Deputy Administrator Victoria B. Wassmer, now Acting Administrator Elwell—is required by both the RTCA Charter and the FACA to be intimately involved in the proceedings of the DACSC. The “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3;25 see also 5 U.S.C. app. 2 § 10(e)–(f).

34. The DAC also includes at least three “FAA-approved Task Groups,” each of which must “have a specific, limited charter” that is “approved by the FAA Administrator.” Ex. 1 at 2. According to the FAA, the agency’s “traditional way of providing tasking” to Task Groups is to “finalize and approve the tasking statement and forward it to the [Committee] to execute.” Ex. 5 at 10.

35. Task Group 1 was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 1 to “[d]evelop a set of consensus based recommendations” concerning “the roles and responsibilities of federal, state, and local governments in regulating and enforcing drone laws.” Ex. 7 at 7.26

36. Task Group 2 was also established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 2 to “provide recommendations on UAS operations/missions beyond those currently permitted” and “define procedures for industry to gain access to the airspace.” Ex. 8 at 1.27

37. Task Group 3 was established sometime between the second full DAC meeting (January 31, 2017), Ex. 5, and the third full DAC meeting (May 3, 2017), Ex. 10. The FAA instructed Task Group 3 to “develop recommendations as to the UAS community’s preferred method(s) for 26 Tasking Statement from Victoria B. Wassmer, Acting Deputy Adm’r, FAA, to DAC Task Group 1 (Jan. 31, 2017).

38. The DACSC Terms of Reference nominally require the Task Groups to perform their work “at the direction of the DACSC,” Ex. 6 at 3, rather than at the direction of FAA officials. In October 2017, Mr. Elwell, then the FAA Deputy Administrator, explained to the Washington Post: “If we [the FAA] meddle, if we get in there, they’re not advising us.” Ex. 20.29 Nevertheless, FAA officials have personally directed, guided, participated in, and received the work and recommendations of the Task Groups.

39. For example, in early 2017, Acting Deputy Administrator Wassmer “issued” the detailed tasking statements for all three Task Groups. Ex. 10 at 4. The tasking statements included factfinding assignments for each Task Group, topics that each Task Group should advise on, and deadlines by which each Task Group should deliver its recommendations and reports. See Ex. 7; Ex. 8; Ex. 9. As Wassmer made clear to the DAC, “tasking statements from the FAA should guide the work of the DAC, DACSC, and TGs.” Ex. 10 at 4.

40. Wassmer and Acting Administrator Elwell also personally attended DAC meetings at which the Task Groups delivered substantive recommendations and reports. See, e.g., Ex. 10 at 2, 9–17; Ex. 11 at 1, 3–9; Ex. 12 at 2, 8–18.

41. And because the Task Groups constitute subcommittees of the DAC, Wassmer and Elwell were (or are) required to be intimately involved in the proceedings of the Task Groups in their capacity as Designated Federal Officer. Under the RTCA Charter, the “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3; see also 5 U.S.C. app. 2 § 10(e)–(f).

The Transparency Obligations of the DAC

42. The DAC, according its Terms of Reference, must conduct its work in the “open, transparent venue of a federal advisory committee (FAC). As with all FACs, the Drone Advisory Committee (DAC) will be designed to: ensure transparency, include broad and balanced representation across the industry, encourage innovation and remain consistent with US anti-trust laws.” Ex. 1 at 1.

43. Under the FACA, the meetings of each advisory committee—defined as any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” which is “established or utilized” by an agency—“shall be open to the public.” 5 U.S.C. app. 2 §§ 3(2), 10(a)(1).

44. The Charter of the RTCA—of which the DAC, the DACSC, and the DAC Task Groups are all part—confirms that “RTCA Advisory Committee and subcommittee meetings will be
open to the public, except as provided by section 10(d) of the FACA and applicable regulations. Meetings will be announced in the Federal Register at least 15 days before each meeting, except in emergencies.” Ex. 13 at 3.

45. The DAC Terms of Reference further underscore that “The DAC functions as a Federal advisory committee with meetings that are open to the public, unless otherwise noted as authorized by section 10(d) of the FACA and applicable regulations . . . .” Ex. 1 at 3.

46. Under the FACA, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).

47. The RTCA Charter confirms that “[s]ubject to the Freedom of Information Act, 5 U.S.C. § 552, records, reports, transcripts, minutes, or meeting summaries, and other materials presented to or prepared for the RTCA Advisory Committee are available for public inspection.” Ex. 13 at 4.

48. The DAC Terms of Reference state that “[i]n accordance with the Federal Advisory Committee Act, meeting summaries and related information will be available to the public via RTCA’s website. Documents undergoing final review can be obtained by contacting RTCA.” Ex. 1 at 6.

49. The RTCA Charter also states that the “records of the committee, formally and informally established subcommittees, or other work or task subgroup of the subcommittee, shall be handled in accordance with the General Records Schedule 6.2, or other approved agency records disposition schedule.” Id.

50. General Records Schedule 6.2 “covers Federal records created or received by Federal advisory committees and their subgroups pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and records related to the management of these committees by their sponsoring agencies or departments.” Nat’l Archives & Records Admin., General Records Schedule 6.2: Federal Advisory Committee Records 130 (Sep. 2016), Ex. 15.

51. General Records Schedule 6.2 requires the “[p]ermanent” preservation of “records related to the establishment of the committee”; “records related to committee membership”; “records of committee meetings and hearings”; “records related to committee findings and recommendations”; “records created by committee members,” including “correspondence documenting discussions, decisions, or actions related to the work of the committee”; “records related to research collected or created by the committee”; “documentation of advisory committee subcommittees”; “records that document the activities of subcommittees that support their reports and recommendations to the chartered or parent committee.” Id. at 130–32.

52. The General Services Administration, which is “responsible for all matters relating to advisory committees,” and “prescribe[s] administrative guidelines and management controls applicable to advisory committees,” 5 U.S.C. app. 2 § 7, instructs that: “Whether subcommittees are open to the public or not, the agency must . . . [c]omply with recordkeeping requirements (i.e., minutes)” and “[a]llow public access to subcommittee records.” Federal Advisory Committee Act Training Course 192 (2017), Ex 16.

53. FACA regulations also dictate that a committee or agency “may not require members of the public or other interested parties to file requests for non-exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA.” 41 C.F.R. § 102-3.170.

The Activities of the DAC and DAC Subcomponents

54. On September 16, 2016, the DAC held its first full Committee meeting in Washington, D.C. Ex. 4. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

55. DAC Secretary Al Secen presented the results of a survey of DAC members at the September 2016 meeting. DAC members identified privacy as the second-highest public concern around drones, narrowly trailing safety and reliability:

56. Yet in the same survey, DAC members ranked privacy dead last among their regulatory and policy concerns:

57. During the September 2016 meeting, the DAC identified as an action item: “Establish a WG to describe the privacy concerns, and to identify the respective roles and responsibilities for dealing with privacy concerns across local, state, regional and federal entities.” However, there is no public record of the DAC ever forming a working group focused on privacy.

58. During the same meeting, the DAC also identified “[e]stablishing a standing DAC Subcommittee,” “[e]stablish[ing] a task group” as action items. Ex. 4 at 2.

59. Between the DAC’s September 2016 and January 2017 meetings, the DACSC, Task Group 1, and Task Group 2 were formed and began engaging in official Committee business. See Ex. 5 at 2–7.

60. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

61. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its January 2017 meeting.

62. On January 31, 2017, the DAC held its second full Committee meeting in Reno, Nevada. Ex. 5. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

63. The DACSC, Task Group 1, and Task Group 2 each delivered a progress report to the DAC at the January 2017 meeting. Id. at 2–7. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 3–7. The DAC also “approved the DACSC to go through the process of creating TG3 [Task Group 3]” based on the tasking statement issued by the FAA. Id. at 10.

64. According to the publicly available records of the January 2017 meeting, the privacy implications of drones were referenced only once in passing.

65. Between the DAC’s January 2017 and May 2017 meetings, the DACSC, Task Group 1, and Task Group 2 continued engaging in official Committee business. See Ex. 10 at 8–14. Task Group 3 was also formed during this period and began engaging in official Committee business. See id. at 14–16.

66. Although members of the DACSC and the Task Groups met and conferred during this period, see Ex. 10 at 8–16, Defendants failed to publicly notice or announce any such meetings.

67. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its May 2017 meeting.

68. On May 3, 2017, the DAC held its third full Committee meeting in Herndon, Virginia. Ex. 10. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

69. The DACSC and each of the Task Groups delivered a progress report to the DAC at the May 2017 meeting. Id. at 8–16. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 8–14.

70. According to the publicly available records of the May 2017 meeting, the privacy implications of drones were referenced only twice in passing.

71. Between the DAC’s May 2017 and July 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 11 at 3–9.

72. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

73. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its July 2017 meeting.

74. On July 21, 2017, the DAC held its fourth full Committee meeting via digital conference. Ex. 11. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting as the Committee’s newly appointed DFO. Id. at 2. Elwell also delivered remarks during the meeting. Id. at 2–3.

75. Task Group 1 and Task Group 3 both delivered a progress report and recommendations to the DAC at the July 2017 meeting. Id. at 3–9. Task Group 3 also presented an interim report intended for the FAA concerning funding mechanisms for the introduction of drones into the NAS. Id. at 3–7.

76. San Francisco Mayor Ed Lee, who served on the DAC until his death in December 2017, sent a representative to the July 2017 meeting to speak on his behalf. The representative told the DAC that Mayor Lee “remained concerned about privacy and ensuring broader input in the[DAC] discussion from partners such as law enforcement agencies and other local government representatives. The desire is to have an equal, one-to-one representation of local government to industry members.”

77. According to the publicly available records of the July 2017 meeting, Mayor Lee’s statement was the sole reference made by the DAC to the privacy implications of drones.

78. During the July 2017 meeting, the DAC approved the interim funding report presented by Task Group 3. The RTCA officially delivered the Task Group 3 report to then-Deputy Administrator Elwell on September 11, 2017. Ex. 17.30 The RTCA Advisory Committee does not appear to have collectively reviewed or approved the Task Group 3 report before transmitting it to the FAA.

79. Between the DAC’s July 2017 and November 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 12 at 8–18.

80. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any meetings.

81. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its November 2017 meeting.

82. On October 23, 2017, the Washington Post published a report that Task Group 1—a group that includes “industry insiders with a financial stake in the outcome” of the Committee process—“has been holding confidential meetings to shape U.S. policy on drones, deliberating privately about who should regulate a burgeoning industry that will affect everything from package delivery to personal privacy.” Ex. 21.31

83. The Washington Post also reported that the Task Group 1 process had “been riven by suspicion and dysfunction” and that “[m]onths of tensions came to a head” when “an FAA contractor that manages the group told members they had to sign a far-reaching confidentiality agreement to keep participating. After some raised concerns, several groups were blocked from
30 Letter from Margaret Jenny, President, RTCA, to Daniel K. Elwell, Deputy Adm’r, FAA (Sep. 11, 2017).

84. On November 8, 2017, Mayor Ed Lee sent a letter to DAC Chairman Brian Krzanich warning that “Task Group 1’s process has been marred by a lack of transparency and poor management,” including “lack of agendas, last minute rescheduling of meetings, failure to have minutes of any proceedings, conflicting advice and guidance by RTCA and Requirements to sign documents that public employees cannot sign.” Ex. 19 at 1. Mayor Lee added: “Additionally, there is a stark imbalance of perspectives and viewpoints favoring industry interests at the expense of local and state governments and members of the public. Because the process was flawed, the recommendations produced by that process are also flawed.” Id.

85. On the same day—November 8, 2017—the DAC held its fifth full Committee meeting at the Amazon Meeting Center in Seattle, Washington. Ex. 12. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting and delivered remarks. Id. at 2–6.

86. The DACSC and each of the Task Groups delivered a progress report to the DAC at the November 2017 meeting. Id. at 7–18. Each Task Group discussed its substantive recommendations to the FAA. Id. at 8–14.

87. Task Group 2 also presented a final report intended for the FAA concerning drone access to airspace. Id. at 12–16. The DAC approved the report. Id. at 16.

88. According to the publicly available records of the November 2017 meeting, the privacy implications of drones were referenced only four times: once in a question posed to Task Group 2 and three times in a presentation about local government views on drone deployment.

89. On information and belief, the DACSC and the DAC Task Groups have continued to meet, confer, and engage in official Committee business since the November 2017 meeting.

90. Defendants have failed to publicly notice or announce any meetings of the DACSC or the DAC Task Groups from this period.

91. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection.

92. On March 9, 2018, the DAC held its sixth full Committee meeting in McLean, Virginia. Sixth Drone Advisory Committee (DAC) Meeting, 83 Fed. Reg. 7,284, 7,284 (Feb. 20, 2018).

93. To date, Defendants have failed to release minutes from the March 2018 meeting. However, Acting Administrator Elwell was scheduled to attend and speak at the meeting as the Committee’s DFO. Id.

94. The DAC’s next full Committee meeting is scheduled for July 17, 2018. Drone Advisory Committee (DAC), RTCA (2018).32

EPIC’s Attempts to Obtain DAC Records

95. On March 20, 2018, EPIC sent a records request via email to Acting FAA Administrator Elwell, DOT Committee Management Officer David W. Freeman, DAC Secretary Al Secen, and the RTCA’s general information email address. Ex. 18.

96. In its request, EPIC stated that it wished to access “all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by’ the DAC or any DAC subcomponent. 5 U.S.C. App. 2 § 10(b).” Id.

97. EPIC asked the agency and Committee recipients to “direct EPIC to the URL or location where the full collection of DAC and DAC subcomponent records is available for public inspection and copying.” Id.

98. EPIC also advised the FAA, DAC, and RTCA of its records disclosure obligations under the FACA. Id.

99. As of April 11, 2018, EPIC has received no response to its request.

100. On April 6, 2018, EPIC Counsel John Davisson called and left a voicemail message for DAC Secretary Al Secen. Mr. Davisson reiterated EPIC’s desire to obtain access to DAC records and left a return number for Mr. Secen to call.

101. As of April 11, 2018, EPIC has received no response to this message.

Count I
Violation of the FACA: Failure to Open Meetings to the Public

102. Plaintiff asserts and incorporates by reference paragraphs 1–101.

103. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public.

104. Defendants’ failure to open DACSC and DAC Task Group meetings to the public is a violation of 5 U.S.C. app. 2 § 10(a)(1).

105. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(a)(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

106. Plaintiff has exhausted all applicable administrative remedies.

Count II
Violation of the APA: Agency Action Unlawfully Withheld

107. Plaintiff asserts and incorporates by reference paragraphs 1–101.

108. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public, as required by 5 U.S.C. app. 2 § 10(a)(1).

109. Defendants’ failure to make these meetings open to the public constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

110. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

111. Plaintiff has exhausted all applicable administrative remedies.

Count III
Violation of the APA: Unlawful Agency Action

112. Plaintiff asserts and incorporates by reference paragraphs 1–101.

113. Defendants have held numerous nonpublic meetings of the DACSC and DAC Task Groups in violation of 5 U.S.C. app. 2 § 10(a)(1).

114. By holding nonpublic meetings, Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

115. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

116. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By holding nonpublic DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

117. Plaintiff has exhausted all applicable administrative remedies.

Count IV
Violation of the FACA: Failure to Make Records Available for Public Inspection

118. Plaintiff asserts and incorporates by reference paragraphs 1–101.

119. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

120. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

121. Defendants’ failure to make these records available for inspection and copying is a violation of 5 U.S.C. app. 2 § 10(b).

122. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(b). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

123. Plaintiff has exhausted all applicable administrative remedies.

Count V
Violation of the APA: Agency Action Unlawfully Withheld

124. Plaintiff asserts and incorporates by reference paragraphs 1–101.

125. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

126. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

127. Defendants’ failure to make these records available to Plaintiff constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

128. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

129. Plaintiff has exhausted all applicable administrative remedies.

Count VI
Violation of the APA: Unlawful Agency Action

130. Plaintiff asserts and incorporates by reference paragraphs 1–101.

131. Since September of 2016, Defendants have held multiple meetings of the DAC, the DACSC, and the DAC Task Groups; engaged in substantive deliberations within and between the DAC, the DACSC, and the DAC Task Groups; issued official recommendations, reports, findings, and conclusions on behalf of the DAC, the DACSC, and the DAC Task Groups; assigned “action items” on behalf of the DAC to the FAA, the RTCA Advisory Committee, the DACSC, and the DAC Task Groups; and undertaken other official DAC business.

132. Defendants have engaged in this conduct without making “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

133. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

134. By undertaking official Committee business without publicly disclosing records covered by U.S.C. app. 2 § 10(b), Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

135. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

136. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By undertaking official Committee business without publicly disclosing numerous records covered by U.S.C. app. 2 § 10(b), Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

137. Plaintiff has exhausted all applicable administrative remedies.

Count VII
Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

138. Plaintiff asserts and incorporates by reference paragraphs 1–101.

139. Plaintiff is entitled under 28 U.S.C. § 2201(a) to a declaration of the rights and other legal relations of the parties with respect to the claims set forth in Counts I–VI.

Requested Relief

WHEREFORE, Plaintiff requests that this Court:

A. Order Defendants to preserve all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

B. Order Defendants to produce an index of all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

C. Order Defendants to make available for inspection and copying all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

D. Order Defendants to notice and open to the public all future meetings of the DACSC, DAC Task Groups, and any other DAC subcomponent hereafter established;

E. Enjoin the DAC, DAC subcomponents, DAC officers, and DAC members from holding meetings; conducting deliberations; issuing recommendations, reports, findings, or conclusions; and engaging in other official DAC business until Defendants are in full compliance with 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

F. Hold unlawful and set aside any actions, findings, and conclusions of the DAC, the DACSC, and the DAC Task Groups which predate Defendants’ full compliance 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

G. Award EPIC costs and reasonable attorney’s fees incurred in this action; and

H. Grant such other relief as the Court may deem just and proper.

Respectfully Submitted,
MARC ROTENBERG, D.C. Bar #422825
EPIC President and Executive Director
/s/ Alan Butler
ALAN BUTLER, D.C. Bar #1012128
EPIC Senior Counsel
JOHN DAVISSON, D.C. Bar #153191433
EPIC Counsel
ELECTRONIC PRIVACY
INFORMATION CENTER
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
(202) 483-1140 (telephone)
(202) 483-1248 (facsimile)
Attorneys for Plaintiff EPIC
Dated: April 11, 2018

Robert Taylor v. FAA- 2nd Drone Registration Class Action Lawsuit

 in Drone Lawsuits

drone-registration-lawsuit

Quick Summary:

This is NOT John Taylor who was instrumental in having the drone registration regulations vacated in the Taylor v. Huerta case. This is Robert Taylor who is John Taylor’s brother.  Just to mention, I’m NOT involved in this case. This is a class action lawsuit (of at least 836,796 members) against the FAA.

Count I is alleging that the FAA collected personal information and money under the Part 48 registration regulations which were declared illegal under the Taylor v. Huerta case. Even after the Taylor v. Huerta ruling, the FAA continued to collect and retain all of the personal information and money. They did not delete the registry or refund the money. “The Privacy Act mandates that agencies that maintain a ‘system of records’ must ‘maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.'” 5 U.S.C. § 552a(e)(1).” The FAA maintained the personal information of the individuals when the FAA lacked statutory authority, made clear by the Taylor v. Huerta case, and thus violated the Privacy Act. Because the FAA acted intentionally or willfully, each injured party is entitled to $1,000 in statutory damages.

Count II of the lawsuit alleges that under the Little Tucker Act, the Federal Government’s sovereign immunity is waived when the government takes money from individuals in violation of a statute. This is the same thing being alleged in another class action against the FAA, Reichert v. FAA, regarding the FAA illegally taking the $5 during registration. They want everyone’s $5 back.

Count III alleges that the FAA “violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.” Basically, the constitutional right was the right to judicial review in Article III of the Constitution and the FAA just ignored the D.C. Circuit’s ruling.

Count IV alleges unjust enrichment by collecting over 4 million in fees.

The lawsuit is seeking $5 back for the class ($4,183,980), Privacy Act violation statutory damages of $1,000 EACH for the members of the class ($ 836,796,000).

In sum, we’re looking at almost 841 million PLUS attorneys fees.

Interested in more drone lawsuits? Check out my Drone Lawsuits and Litigation Database.

Brief Background to the Lawsuit:

In 2012, the FAA Modernization and Reform Act of 2012 was passed which provided a Section 336 that protected a certain group of model aircraft from regulation from the FAA.  The FAA in 2015 created the Part 48 registration regulations which governed this protected class of model aircraft. John Taylor filed suit in the D.C. Circuit Court of Appeals. That court ruled that the FAA violated Section 336 and that the Part 48 registration regulations as applied to model aircraft were illegal.

During this period AFTER the registration regulations were declared illegal, the FAA did not delete the database of registered names or refund the money. The FAA instead created a difficult process, using paper and requiring more sensitive data, to facilitate deregistration and refunds. This process was not well publicized until I posted about it. John Taylor then filed another lawsuit in the Federal District Court of Maryland for Robert Taylor seeking injunctive relief based on, among others things, the Privacy Act. The FAA argued that Taylor could not get injunctive relief under the Privacy Act and that Taylor could not seek remedies for others – only himself. John Taylor dismissed the Maryland case and the class action suit was filed in Washington, D.C. by a D.C. law firm.

In December 2017, the National Defense Authorization Act of 2017 was passed which overturned the Taylor v. Huerta ruling putting the registration regulations back into effect.

This lawsuit was filed on January 5, 2018.

If you are in need of help with filing Part 107 waivers, please contact me.  I have helped over 70 clients obtain waiver approvals.

Actual Text of the Lawsuit:

Robert C. Taylor

vs.

Federal Aviation Administration

and

Michael Huerta

CLASS ACTION COMPLAINT
Plaintiff Robert C. Taylor, on behalf of himself and all others similarly situated, by counsel, Carr Maloney P.C., brings this Class Action against Defendants Federal Aviation Administration (“FAA”) and Michael P. Huerta, in his official capacity as Administrator of the FAA, and states as follows:

PARTIES
1. Plaintiff is a natural person and a citizen of the United States, residing in the state of Maryland.
2. Defendant FAA is part of the United States Department of Transportation and is located at 800 Independence Avenue SW, Washington D.C. 20591. Defendant Huerta serves as the Administrator of the FAA.

JURISDICTION AND VENUE
3. This Court has jurisdiction over this matter because it involves federal questions pursuant to 28 U.S.C. § 1331. This is also a civil action arising under the United States Constitution. Furthermore, this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332. Plaintiff brings this Complaint on behalf of a nationwide class, and at least one Class member is a citizen of a state different from Defendants. The Class consists of at least 836,796 Class members and the matter in controversy exceeds $5,000,000.
4. Venue is proper in this Court under 28 U.S.C. § 1391 because the FAA and Huerta are located in the District of Columbia, and the FAA regularly conducts business in this District. Moreover, a substantial part of the events asserted in this Complaint occurred and continues to occur in this District. Venue is also proper pursuant to 5 U.S.C.A. § 552a(g)(5).

FACTUAL ALLEGATIONS
5. In 2012, Congress passed the FAA Modernization and Reform Act of 2012, 126 Stat. 11. The Act provided that the FAA could not “promulgate any rule or regulation regarding model aircraft” that meet certain criteria described in the Act. Pub. L. 112-95, § 336(a).
6. Section 336(c) of the FAA Modernization and Reform Act of 2012 defines 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 or recreational purposes.”
7. On December 16, 2015, despite Congress’s explicit prohibition against rulemaking involving Model Aircraft, the FAA promulgated the Registration and Marking Requirements for Small Unmanned Aircraft (the “Registration Rule”). The Registration Rule required that beginning December 21, 2015, owners of Model Aircraft operated for hobby or recreational purposes must register with the FAA. 80 Fed. Reg. 78593.
8. As part of the registration under the Registration Rule, owners of Model Aircraft were required to provide the FAA with personal information including their names, email addresses, and home addresses. They also had to pay a $5.00 registration fee. Model Aircraft Owners who did not register were subject to three years in prison and fines of up to $250,000. 80 Fed. Reg. 78593, 78630.
https://www.gpo.gov/fdsys/pkg/FR-2015-12-16/pdf/2015-31750.pdf
9. In fact, the FAA threatened that failing to register would result in civil penalties up to $27,500 and criminal penalties up to $250,000 and three years in prison. https://web.archive.org/web/20151224033152/www.faa.gov/uas/registration/faqs Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 3 of 16
10. Plaintiff is a Model Aircraft hobbyist who owns multiple Model Aircraft and uses them for hobby or recreational purposes.
11. Following the effective date of the Registration Rule, Plaintiff registered his Model Aircraft with the FAA, provided the required personal information, and paid the $5.00 registration fee.
12. No less than 836,796 owners of Model Aircraft registered their Model Aircraft for hobby or recreational purposes from December 21, 2015 through November 14, 2017. http://dronecenter.bard.edu/drone-registrations.
13. On May 19, 2017, the United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) vacated the Registration Rule “to the extent that it applies to Model Aircraft,” because the Registration Rule was among those actions specifically prohibited by § 336(a). Taylor v. Huerta, 856 F.3d 1089, 1090, 1094 (D.C. Cir. 2017). “The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.” Id. at 1090. Thus, the registrations that were based upon the promulgation of the invalid and vacated Registration Rule, had no lawful existence.
14. Also on May 19, 2017, the FAA issued a press release stating that the FAA will “continue to encourage registration for all drone operators,” despite the D.C. Circuit’s decision vacating the Registration Rule and making clear that the FAA had no authority to promulgate the Registration Rule. https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21674
15. Despite the judicial vacatur of the regulation establishing the FAA’s model aircraft registry, the FAA did not delete Plaintiff’s personal information from the registry or refund his $5.00 registration fee. Nor did the FAA delete the other registered owners of Model Aircrafts’ personal information or return their registration fees. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 4 of 16
16. Though it did not voluntarily delete the now clearly-unlawful registry, the FAA ultimately did create a form whereby registrants could seek to delete their registrations and receive a refund. However, the FAA did not distribute the form to registrants through their email or physical addresses on file with the FAA, or take other reasonable steps to make registrants aware of the process. Further, the form, without lawful justification, required registrants to make certifications as to how they “always” operate their Model Aircraft, and to provide personal banking information. The form is no longer available on the FAA website.
17. On December 12, 2017, President Donald Trump signed the National Defense Authorization Act. Section 1092(d) of the National Defense Authorization Act states that “The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.” Plaintiff and the Class do not concede that the National Defense Authorization Act is valid. The National Defense Authorization Act, by its terms, is not retroactive. Therefore, any personal information and registration fees collected from owners of Model Aircraft pursuant to the Registration Rule between December 21, 2015 and December 11, 2017, was, and remains, unlawful.
19. The FAA’s actions were willful or intentional. Section 336(a) clearly prohibited the promulgation of the Registration Rule. As the court noted, “[s]tatutory interpretation does not get much simpler.” Taylor, 856 F.3d at 1092. The FAA knew, or should have known, that its actions were unlawful, but proceeded to act in willful and flagrant violation of the rights of hundreds of thousands of Model Aircraft hobbyists. The FAA’s actions were so patently egregious and unlawful that anyone undertaking the conduct should have known it to be unlawful. The FAA’s actions were committed without grounds for believing them to be lawful, and in flagrant disregard of the rights of those whom it unlawfully registered. Nor did the FAA relent when the Registration Rule was challenged in court. Lastly, despite an order of the Court of Appeals vacating the Regulation Rule to the extent that it applied to Model Aircraft, the FAA did not refund their $5.00 registration fees and continued not only to maintain, but to build upon its unlawful registry, knowing it to be illegal. In addition, the FAA’s unlawful, and uncirculated, “deregistration” process further reveals the intentional and willful nature of the FAA’s efforts to maintain its unlawful registry.

CLASS ACTION ALLEGATIONS
20. Plaintiff brings this action individually and on behalf of all others similarly situated individuals pursuant to Rule 23 of the Federal Rules of Civil Procedure. The proposed class is as follows:
All owners of Model Aircraft who registered with the FAA for hobby or recreational purposes from December 21, 2015 through December 11, 2017.
21. The Class is so numerous that joinder of all individual plaintiffs would be impracticable. Plaintiff avers that the class consists of at least 836,796 Class members, the number of individuals who registered Model Aircraft for hobby or recreational purposes as of November 14, 2017. The precise number of Class members is known by the FAA and can be ascertained through its own records.
22. There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. All members of the Class have been subject to and affected by the same course of unlawful conduct. In violation of § 336(a) of the FAA Modernization and Reform Act of 2012, the FAA unlawfully registered Class members,
and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the same registration fees.
23. Plaintiff’s claims are typical of the claims of the Class, in that they arise from the same operative facts and course of conduct, are based on the same legal theories, and based upon the FAA’s violation of § 336(a) of the Modernization and Reform Act of 2012. In violating § 336(a), the FAA unlawfully registered Class members, and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the Class members’ registration fees.
24. Plaintiff will fairly and adequately represent and protect the interests of the Class. Plaintiff is committed to vigorously litigating this matter. Plaintiff has no interest antagonistic to those of other Class members. Plaintiff has secured counsel experienced in handling class actions. Neither Plaintiff nor his counsel have any interests which might cause them not to vigorously pursue the claims in this lawsuit.25. A class action is superior to other available methods of the fair and efficient adjudication of this controversy under Rule 23(b)(3). The expense and burden of individual litigation would make it impracticable or impossible for Class members to prosecute their claims individually. The interest of Class members in individually controlling the prosecution of separate claims against the FAA is relatively small, and such complex individual litigation against the federal government, who has unlimited resources, would be cost prohibitive if the suits were prosecuted individually. Further, such numerous individual suits (perhaps a number approaching one million or more) would burden the court system. Management of the Class’s claims is likely to present significantly fewer difficulties and is in the best interest of the Class members, judicial economy, and the court system. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 7 of 16
26. Class certification is also appropriate under Rule 23(b)(2) given that the FAA acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the Class as a whole. Despite a clear ruling by the D.C. Circuit Court that the FAA violated § 336(a) of the Modernization and Reform Act of 2012, the FAA continued to collect and did not return registration fees, and did not delete the unlawfully collected personal information.
27. Furthermore, this action should be maintained as a class action because the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members which would establish incompatible standards of conduct for the parties opposing the Class, as well as a risk of adjudications with respect to individual members which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impended their ability to protect their interests.

COUNT I: VIOLATION OF THE PRIVACY ACT OF 1974, 5.U.S.C.A. § 552a
28. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-27 of the Complaint as if fully set forth herein.
29. The Privacy Act mandates that agencies that maintain a “system of records” must “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” 5 U.S.C.A. § 552a(e)(1).
30. Plaintiff and the Class meet the definition of an “individual” within the meaning of 5 U.S.C.A. § 552a(a)(2). Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 8 of 16
31. The FAA is an agency that must comply with 5 U.S.C.A. § 552a(e)(1) in its maintenance of records.
32. The personal information of Plaintiff and the Class collected and maintained by the FAA is a “system of records” within the meaning of 5 U.S.C.A. § 552a(a)(5). Moreover, the Plaintiff and the Class’s personal information was incorporated into a “system of records.”
33. The D.C. Circuit ruled that the FAA lacked statutory authority to promulgate the Registration Rule and thus vacated the Registration Rule. Taylor v. Huerta, 856 F.3d 1089, 1093-94 (D.C. Cir. 2017). As such, the FAA lacked authority to collect registration fees from Plaintiff and the Class and to collect from and maintain their personal information.
34. Thus, the maintenance of a “system of records” for Plaintiff and the Class from December 21, 2015 to December 11, 2017 was not only not relevant or necessary, but it was unlawful. Accordingly, the FAA violated 5 U.S.C.A. § 552a(e)(1) by promulgating the Registration Rule and maintaining a registry of Model Aircraft owners from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President.
35. Section 552a(g)(1)(D) provides that a civil action can be brought when an agency “fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.”
36. Plaintiff and the Class can bring and maintain an action for civil remedies against Defendants under 5 U.S.C.A. § 552a(g)(1)(D) for the FAA’s failure to comply with 5 U.S.C.A. § 552a(e)(1).
37. Plaintiff and the Class experienced adverse effects due to the FAA’s violation of 5 U.S.C.A. § 552a(e)(1), including actual damages. The damages suffered by Plaintiff and other Class members included pecuniary harm. The FAA charged Plaintiff and the Class a $5.00 fee to collect and unlawfully maintain information about Plaintiff and other Class members in the FAA’s system of records. In addition, the FAA deprived Plaintiff and other Class members of use of those funds.

38. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim under 5 U.S.C.A. § 552a(g)(1)(D).

39. The FAA acted willfully and intentionally within the meaning of 5 U.S.C.A. § 552a(g)(4) because it knew or should have known that it lacked the statutory authority for promulgating the Registration Rule, but it did so anyway. Further, once the D.C. Circuit vacated the Registration Rule, the FAA did not delete the personal information of Plaintiff and the Class members and did not refund their registration fees. In addition, the FAA continued the registration process even after the D.C. Circuit held that the FAA was prohibited from doing so.
40. Plaintiff and the Class members are each entitled to statutory damages in a sum of no less than $1,000 plus attorneys’ fees and costs. 5 U.S.C.A. § 552a(g)(4).

COUNT II: VIOLATION OF THE LITTLE TUCKER ACT, 28 U.S.C. § 1346
41. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-40 of the Complaint as if fully set forth herein.
42. The Little Tucker Act waives sovereign immunity for Plaintiff and the Class to bring this cause of action and this lawsuit against the federal government.
43. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim and lawsuit under the Little Tucker Act.
44. Courts routinely recognize illegal exaction claims when the government takes money from individuals in violation of a statute. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 10 of 16
45. Plaintiff and the Class bring this claim under the Little Tucker Act for the Defendants’ illegal exaction of $5.00 registration fees and personal information from at least 836,7960 owners of Model Aircraft between December 21, 2015 and December 11, 2017, despite the lack of statutory authority to do so given the D.C. Circuit’s decision in Taylor v. Huerta.
46. As set forth above, Plaintiff and the Class have suffered damages and are each entitled to damages of not more than $10,000 each under 28 U.S.C. § 1346(a)(2).

COUNT III: CONSTITUTIONAL VIOLATION
47. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-46 of the Complaint as if fully set forth herein.
48. Defendants have a duty to Plaintiff and the Class to act in a manner consistent with their constitutional rights and to not deprive them of those rights.
49. Plaintiff and the Class have a right to be free from acts and omissions of Defendants that deprive Plaintiff and the Class of rights protected by the Constitution of the United States, including privacy rights guaranteed by the Constitution.
50. Plaintiff and the Class have a right to the protections afforded to them through the process of judicial review under Article 3 of the Constitution of the United States, which declared the FAA’s Registration Rule unlawful.
51. Plaintiff and the Class have a right not to be subject to the requirements of the Registration Rule from December 21, 2015 to December 11, 2017, which was declared unlawful by a court of competent jurisdiction.
52. Plaintiff and the Class have a right to be free from civil and criminal penalties for their failure to comply with a regulation that has been declared unlawful by a court of competent jurisdiction.
53. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.
54. Plaintiff and the Class have exhausted any administrative remedies.
55. As a result of the Defendants’ violation of Plaintiff and the Class’s Constitutional and privacy rights, Plaintiff and the Class have suffered damages.

COUNT IV: UNJUST ENRICHMENT
56. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-55 of the Complaint as if fully set forth herein.
57. Plaintiff and the Class conferred a benefit to the Defendants through providing them their personal information and over $4,183,980 in ill-gotten registration fees.
58. The Defendants knowingly accepted and retained the benefit as they unlawfully maintained a registry of Plaintiff and the Class’s personal information and collected over $4,183,980 in registration fees in violation of the law.
59. Given the D.C. Circuit’s decision which declared that the Registration Rule was unlawful, it would be unjust for the Defendants to retain the personal information of over 836,796 owners of Model Aircraft and over $4,183,980 in registration fees.
60. The Defendants should not be permitted to maintain the personal information and registration fees of Plaintiff and owners of Model Aircraft from December 21, 2015 until December 11, 2017 because the Defendants unlawfully and unjustly received them as a result of its unlawful actions described herein.
61. As set forth above, the Defendants have waived sovereign immunity for this lawsuit.
62. Notwithstanding statutory damages for other claims, Plaintiff and the Class also seek restitution in an additional amount of no less than $4,183,980 for the Defendants’ unjust enrichment, as well as interest and attorneys’ fees and costs.

COUNT V: DECLARATORY RELIEF
63. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-62 of the Complaint as if fully set forth herein.
64. There exists an actual controversy between Plaintiff and the Class, and the Defendants.
65. Pursuant to 28 U.S.C. § 2201, this Court may declare the rights and other legal relations of any interested parties seeking a declaration. Any such declaration shall have the force and effect of a final judgment.
66. The Registration Rule from December 21, 2015 to December 11, 2017 was unlawful. Therefore, the no less than 836,796 registrations of owners of Model Aircraft for
hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017 were unlawful.
67. Thus, the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful.
68. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017.
69. The FAA violated the Privacy Act, 5 U.S.C.A. §552a(e)(1) by maintaining a registry of owners of Model Aircraft from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President. Further, it was unlawful. As such, Plaintiff and the Class are each entitled to statutory damages from the FAA in a sum of no less than $1,000 plus attorneys’ fees and costs. Moreover, Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the FAA’s unjust enrichment of registration fees.

JURY DEMAND

Plaintiff and the Class request a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff and the Class pray for an Order as follows:
A. Finding that this action satisfies the prerequisites for maintenance as a class action and certifying the Class defined herein; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 14 of 16
15
B. Designating Plaintiff as the representative of the Class and undersigned counsel as Class Counsel;
C. Declaring that the Registration Rule from December 21, 2015 to December 11, 2017 was unlawful;
D. Declaring that there were no less than 836,796 registrations of owners of Model Aircraft for hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017, which were unlawful;
E. Declaring that the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful;
F. Declaring that the Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017;
G. Declaring that the FAA violated §552a(e)(1) of the Privacy Act and that Plaintiff and the Class are each entitled to an award of no less than $1,000 plus attorneys’ fees and costs;
H. Declaring that the Defendants violated the Little Tucker Act and that Plaintiff and the Class are each entitled to an award of up to $10,000;
I. Declaring that Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the Defendants’ unjust enrichment of registration fees;
J. Ordering the deletion of records collected and maintained by the Defendants regarding Plaintiff and the Class collected between December 21, 2015 and December 11, 2017;
K. Entering judgment in favor of Plaintiff and the Class against Defendants; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 15 of 16
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L. Awarding Plaintiff and the Class a sum of no less than $836,796,000 for violations of the Privacy Act and the Little Tucker Act, and a sum of no less than $4,183,980 for the ill-gotten registration fees;
M. Awarding Plaintiff and the Class attorneys’ fees and costs, including interest, as allowed or required by law;
N. Granting all further and other relief as the Court deems just and appropriate.

ROBERT C. TAYLOR

Section 107.23 Hazardous operation

 in Commercial Drone Rules (Part 107) / Drone Lawsuits

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Section 107.23 Hazardous operation.

No person may:

(a) Operate a small unmanned aircraft system in a careless or reckless manner so as to endanger the life or property of another; or

(b) Allow an object to be dropped from a small unmanned aircraft in a manner that creates an undue hazard to persons or property.

My Commentary on Section 107.23 Hazardous operation.

This is like a catch-all regulation for when the FAA doesn’t know how to get you for other regulations they will cite you for a violation of this.

Advisory Circular 107-2 on Section 107.23 Hazardous operation.

Careless or Reckless Operation of sUAS. Part 107 also prohibits careless or reckless operation of an sUAS. Flying an sUAS while driving a moving vehicle is considered to be careless or reckless because the person’s attention would be hazardously divided. Therefore, the remote PIC or person manipulating the flight controls cannot operate an sUAS and drive a moving vehicle in a safe manner and remain in compliance with part 107.

Careless or Reckless Operation. As with manned aircraft, remote PICs are prohibited from engaging in a careless or reckless operation. We also note that because sUAS have additional operating considerations that are not present in manned aircraft operations, there may be additional activity that would be careless or reckless if conducted using an sUAS. For example, failure to consider weather conditions near structures, trees, or rolling terrain when operating in a densely populated area could be determined as careless or reckless operation.

FAA’s Discussion on Section 107.23 Hazardous operation from the Final Small Unmanned Aircraft Rule

As discussed previously, this rule will allow operation of small UAS from land and water-based vehicles over sparsely populated areas. However, the FAA emphasizes that this rule will also prohibit careless or reckless operation of a small UAS. The FAA considers flying a small UAS while purposely distracted by another task to be careless or reckless. The FAA cannot envision at this time an instance of a person driving a vehicle while operating a small UAS in a safe manner that does not violate part 107. Additionally, other laws, such as State and local traffic laws, may also apply to the conduct of a person driving a vehicle. Many states currently prohibit distracted driving and State or local laws may also be amended in the future to impose restrictions on how cars and public roads may be used with regard to a small UAS operation. The FAA emphasizes that people involved in a small UAS operation are responsible for complying with all applicable laws and not just the FAA’s regulations.

………

In a joint submission, PlaneSense and Cobalt Air stated that the language in proposed § 107.19(b) sets a different standard from that in § 107.23 (hazardous operation). They noted that while § 107.19(b) requires that small UAS operations “pose no undue hazard to other aircraft, people or property[,]” § 107.23(b) prohibits persons from operating a small UAS in a “careless or reckless manner so as to endanger the life or property of another[.]” The commenters argued that these two standards are not consistent, because § 107.23 does not include other aircraft within the scope of the third parties who must be protected. The commenters went on to say that these discrepancies create inconsistencies which result in incomplete guidance for the operators of small UAS, and may result in an increase in danger to the public. The commenters suggested that the appropriate standard is to be found in § 107.19(b), and that § 107.23 should be changed to match it. Finally, the commenters asked the FAA to clarify whether “other aircraft” includes other unmanned aircraft.

Part 107 prohibits a small UAS operation from endangering life or property, and prohibits a remote pilot from operating a small UAS in a careless or reckless manner. Property includes other aircraft, including other unmanned aircraft. These two requirements complement, rather than contradict, one another, and provide the remote pilot with the flexibility to adjust his or her operation according to the environment in which he or she is operating. For example, if the operation takes place in a residential area, the remote pilot in command could ask everyone in the area of operation to remain inside their homes while the operation is conducted. If the operation takes place in an area where other air traffic could pose a hazard, the remote pilot could advise local air traffic control as to the location of his or her area of operation and add extra visual observers to the operation so that they can notify the remote pilot if other aircraft are approaching the area of operation. These precautions would be one way to ensure that the operation will not pose an undue hazard to other aircraft, people or property in the event of a loss of control of the aircraft.Additionally, during the operation of the small unmanned aircraft, the remote pilot in command is prohibited from operating the aircraft in a careless and reckless manner, further ensuring that the operation does not pose an undue hazard to other aircraft, people, or property in the event of a loss of control of the aircraft.

……..

The FAA adds this performance-based approach requirement in response to concerns that small UAS operations may present a hazard to manned aircraft operating at low altitudes in the vicinity of airports in both controlled and uncontrolled airspace. Due to the requirements for remote pilots to not operate in a careless or reckless manner and to yield the right of way to all other aircraft, the FAA does not consider it necessary to prohibit small UAS operations in the vicinity of an airport in uncontrolled airspace. Like ballooning, skydiving, banner towing, and other non-traditional aeronautical activities, the FAA expects that remote pilots will work with airport operators to identify ways to safely integrate small UAS operations into the flow of other operations at the airport.
………..

Current FAA regulations (codified in 14 CFR 91.13(a)) prohibit a person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another. The NPRM proposed to apply similar regulations in § 107.23 to ensure that a small UAS is not operated in a hazardous manner. For the reasons discussed below, the FAA will finalize this provision as proposed in the NPRM.

One commenter stated that § 107.23 must have the same force and effect as 14 CFR 91.13. Two commenters said that “careless and reckless” is a vague and subjective standard, with one stating that it is unenforceable unless the FAA describes concretely what constitutes careless or reckless behavior.

Section 107.23(a) will prohibit a person from operating a small UAS in a careless or reckless manner so as to endanger the life or property of another. This provision is derived from a similar prohibition on careless/reckless conduct that currently exists for manned aircraft in § 91.13(a), and as such, the FAA expects that these two provisions will have similar effects.

The determination of whether conduct is careless or reckless is made on a case-bycase basis through NTSB caselaw. The FAA has issued guidance (FAA Order 8900.1, vol. 14, ch. 3, sec. 5) summarizing the pertinent caselaw, which provides illustrative examples of conduct that is considered to be careless or reckless.

One commenter suggested that the FAA should permit local law enforcement authorities to enforce the prohibition against careless or reckless operations. In response, the FAA notes that, as discussed in section III.I of this preamble, the FAA cannot delegate its formal enforcement functions.

One commenter asked the FAA to clarify what evidence would be used to prove that a remote pilot operated in a careless or reckless manner. Another commenter suggested that a flight data recorder be required to facilitate the enforcement of the prohibition against careless or reckless operations.

A flight data recorder requirement would add cost, complexity, and weight to small unmanned aircraft without a corresponding incremental safety benefit. The FAA notes that enforcement of violations will be similar to enforcement conducted for part 91 operations: in addition to conducting routine surveillance of part 107 operations, the FAA will act on reports of violations to conduct further investigations. The FAA relies on many sources to further investigate complaints, such as accounts from witnesses, video, and reports from Federal, State, and local law enforcement agencies.

…….

In §107.23(b) of the proposed rule, the FAA proposed to prohibit an object from being dropped from a small unmanned aircraft if such action endangers the life or property of another. The FAA received approximately 15 comments in response to this proposed provision.

CAPA and one individual commenter expressed concern about the proliferation of small UAS and their accessibility to persons with limited or no aviation experience. Both commenters asserted that it requires great skill to drop an object safely from an aircraft. CAPA also expressed concerns about the potential security risks of permitting objects to be dropped from small unmanned aircraft. Similarly, two individual commenters worried that small unmanned aircraft equipped for package delivery could be used to carry out terrorist activities, such as dropping canisters of poisonous gases into populated areas such as shopping malls.

The FAA disagrees with the commenters that airmen operating under part 107 will lack the skill necessary to safely drop an object from a small UAS. As discussed in section III.E.1 of this preamble, all small UAS operations must be conducted either by a certificated remote pilot or under the direct supervision of a certificated remote pilot in command. In order to obtain a remote pilot certificate under part 107, an applicant will be required to demonstrate his or her knowledge of how to safely operate a small UAS under part 107. Thus, operations under part 107 will be conducted and overseen by certificated airmen who will have the knowledge necessary to safely conduct various part 107 operations, including safely dropping objects from a small UAS.

With regard to dropping dangerous objects, the FAA notes that, as discussed in section III.C.1 of this preamble, this rule will prohibit the carriage of hazardous material by small unmanned aircraft. With regard to terrorism and criminal activities more broadly, as discussed in section III.J.2 of this preamble, there already exist criminal statutes that prohibit criminal and terrorist activities.

Five commenters suggested that the language in the final rule regarding the dropping of objects should mirror the language in 14 CFR 91.15. These commenters suggested that while proposed § 107.23(b) does not necessarily differ in substance from 91.15, it should be made explicit that the rule does not prohibit the dropping of any object if reasonable precautions are taken to avoid injury or damage to persons or property. DJI suggested that the FAA adopt the “hazard to persons or property” standard used in § 91.15 for external load and towing operations.

Section 91.15 prohibits an object from being dropped from an aircraft in flight in a manner that creates a hazard to persons or property. Section 107.19(b) of this rule uses a similar standard of “undue hazard” with regard to loss of positive control of a small unmanned aircraft. In order to promote regulatory consistency throughout part 107, the FAA has rephrased the regulatory text of § 107.23(b) to use the “undue hazard” standard specified in § 107.19(b). The revised § 107.23(b) will prohibit dropping objects from a small unmanned aircraft in a manner that creates an undue hazard to persons or property.

DJI noted that the term “hazard” is inherently subjective. DJI acknowledged that “it may be impossible to adopt a non-subjective standard,” and requested that the FAA provide guidance on the types of operations that the FAA would consider to be hazardous.

As discussed earlier, § 107.23(b) will prohibit dropping an object from a small unmanned aircraft in a manner that creates an undue hazard to persons or property. For purposes of this rule, a falling object creates an undue hazard to persons or property if it poses a risk of injury to a person or a risk of damage to property. This standard will be applied on a fact-specific basis. For example, a small unmanned aircraft that drops a heavy or sharp object capable of injuring a person in an area where there are people who could be hit by that object would likely create an undue hazard to persons. The remote pilot in command of the operation could take reasonable precautions prior to flight by moving people away from the drop site to a distance where they would not be hit by a falling object if something goes wrong with the operation. Guidance associated with the enactment of part 107 will provide additional examples to help remote pilots comply with § 107.23(b).

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Section 107.9 Accident reporting.

 in Commercial Drone Rules (Part 107) / Drone Lawsuits

Section 107.9 requires certain accidents to be reported to the FAA within a certain time period. This regulation has also caused a lot of confusion and headaches for people who crashed their drone and were frantically trying to determine if they have to report or not. Section 107.9 says,

“No later than 10 calendar days after an operation that meets the criteria of either paragraph (a) or (b) of this section, a remote pilot in command must report to the FAA, in a manner acceptable to the Administrator, any operation of the small unmanned aircraft involving at least:

(a) Serious injury to any person or any loss of consciousness; or

(b) Damage to any property, other than the small unmanned aircraft, unless one of the following conditions is satisfied:

(1) The cost of repair (including materials and labor) does not exceed $500; or

(2) The fair market value of the property does not exceed $500 in the event of total loss.”

Keep in mind that this is what is required to be reported to the FAA, there are also regulations that require reporting to the NTSB if certain things happen. I created a giant article on what to do after a drone crash.

Advisory Circular 107-2 on Section 107.9 Accident reporting.

Accident Reporting. The remote PIC of the sUAS is required to report an accident to the
FAA within 10 days if it meets any of the following thresholds:
1. At least serious injury to any person or any loss of consciousness. A serious injury is an injury that qualifies as Level 3 or higher on the Abbreviated Injury Scale (AIS) of the Association for the Advancement of Automotive Medicine (AAAM). The AIS is an anatomical scoring system that provides a means of ranking the severity of an injury and is widely used by emergency medical personnel. Within the AIS system, injuries are ranked on a scale of 1 to 6, with Level 1 being a minor injury, Level 2 is moderate, Level 3 is serious, Level 4 is severe, Level 5 is critical, and Level 6 is a nonsurvivable injury. The FAA currently uses serious injury (AIS Level 3) as an injury threshold in other FAA regulations.

Note: It would be considered a “serious injury” if a person requires hospitalization, but the injury is fully reversible (including, but not limited to, head trauma, broken bone(s), or laceration(s) to the skin that requires suturing).

2. Damage to any property, other than the small UA, if the cost is greater than $500 to repair or replace the property (whichever is lower).

Note: For example, a small UA damages a property whose fair market value is $200, and it would cost $600 to repair the damage. Because the fair market value is below $500, this accident is not required to be reported. Similarly, if the aircraft causes $200 worth of damage to property whose fair market value is $600, that accident is also not required to be reported because the repair cost is below $500.

Submitting the Report. The accident report must be made within 10 calendar-days of the operation that created the injury or damage. The report may be submitted to the appropriate FAA Regional Operations Center (ROC) electronically or by telephone. Electronic reporting can be completed at www.faa.gov/uas/. To make a report by phone, see Figure 4-1, FAA Regional Operations Centers Telephone List. Reports may also be made to the nearest jurisdictional FSDO (http://www.faa.gov/about/office_org/field_offices/fsdo/). The report should include the following information:
1. sUAS remote PIC’s name and contact information;
2. sUAS remote PIC’s FAA airman certificate number;
3. sUAS registration number issued to the aircraft, if required (FAA registration number);
4. Location of the accident;
5. Date of the accident;
6. Time of the accident;
7. Person(s) injured and extent of injury, if any or known;
8. Property damaged and extent of damage, if any or known; and
9. Description of what happened.

LOCATION WHERE ACCIDENT OCCURRED: TELEPHONE:
DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
AL, CT, FL, GA, KY, MA, ME, MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
AK, AS, AZ, CA, CO, GU, HI, ID, MP, MT, NV, OR, UT, WA, and WY 425-227-1999
AR, IA, IL, IN, KS, LA, MI, MN, MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006

National Transportation Safety Board (NTSB) Reporting. In addition to the report submitted to the ROC, and in accordance with the criteria established by the NTSB, certain sUAS accidents must also be reported to the NTSB. For more information, visit www.ntsb.gov.

FAA’s Discussion on Section 107.9 Accident reporting from the Final Small Unmanned Aircraft Rule 

To ensure proper oversight of small UAS operations, the NPRM proposed to require a small UAS operator to report to the FAA any small UAS operation that results in: (1) any injury to a person; or (2) damage to property other than the small unmanned aircraft. The report would have to be made to the FAA within 10 days of the operation that resulted in injury or damage to property. After receiving this report, the FAA may conduct further investigation to determine whether any FAA regulations were violated.

The NPRM invited comments as to whether this type of accident reporting should be required. The NPRM also invited comments as to whether small UAS accidents that result in minimal amounts of property damage should be exempted from the reporting requirement, and, if so, what threshold of property damage should trigger the accident reporting requirement. For the reasons discussed below, this rule will require accident reporting of accidents that result in at least: (1) serious injury to any person or any loss of consciousness; or (2) damage to any property, other than the small unmanned aircraft, unless the cost of repair (including materials and labor) or fair market value in the event of total loss does not exceed $500.

Most of the commenters who addressed this issue generally supported an accident reporting requirement. However, the commenters questioned whether the proposed requirement to report any injury or property damage is too broad because it does not consider the severity of the injury or property damage. To correct what they also saw as an overly broad accident reporting requirement, most of the commenters recommended the proposed requirement be amended to stipulate that reporting is required only for operations that cause injury or property damage above certain thresholds.
A number of commenters recommended general thresholds for reportable injuries and property damage. For example, the Drone User Group Network said an operation should be reportable if it involves “significant” injury or property damage. The University of North Dakota’s John D. Odegard School of Aerospace Sciences said an operation should be reportable if it involves “serious” injury or “substantial” property damage; such a requirement, the commenter pointed out, is in line with the NTSB definition of “occurrence” and the FAA definition of “accident.” AIA suggested a reporting requirement for operations causing “serious bodily harm (those requiring hospitalization, for instance)” or “substantial” property damage. AUVSI, University of North Carolina System, and Prioria said operations resulting in minor injuries or minimal damage to property should not be required to be reported in the same manner as more serious injuries or substantial damage to property. UPS said an operation should be reportable if it causes an injury that requires medical attention or property damage that exceeds a threshold amount “sufficient to exclude insignificant incidents.” An individual commenter recommended a reporting requirement for operations that result in injury or property damage “which is over the upper monetary limit of the small claims court jurisdiction.”

Several commenters recommended more specific thresholds for reportable injuries and property damage. These commenters generally recommended a requirement that the injury caused by the operation be one that necessitates some sort of medical attention and that the property damage caused by the operation exceed some minimum monetary threshold, ranging from $100 to $25,000. For example, commenters recommended some of the following specific thresholds be added to the proposed accident reporting requirement:

• Modovolate Aviation and Aviation Management said an operation should be reportable if it causes injury requiring “hospitalization or other treatment by a provider of medical care,” or “professional medical assistance,” respectively, or property damage of $1,000.
• NBAA said an operation should be reportable if a person has to seek medical treatment as a result of the operation or if property damage exceeds $1,000 or if a police report is filed.
• NAMIC said an operation should be reportable if it causes injury “requiring professional medical treatment” or property damage greater than $2,000.
• The Travelers Companies said an operation should be reportable if it causes “‘serious’ injuries caused by impact of the UAS” or property damage of over $5,000.
• Clean Gulf Associations said an operation should be reportable if it causes injury “which requires professional medical treatment beyond first aid or death to any person” or property damage greater than $10,000.
• Jam Aviation said an operation should be reportable if it causes injury “that requires emergency medical attention” or property damage that exceeds $25,000 or fair market value in the event of total loss, whichever is less.
• Skycatch, Clayco, AECOM, and DPR Construction said an operation should be reportable if it causes injury “requiring assistance of trained medical personnel” or property damage in excess of $20,000.

The California Department of Transportation, Virginia Commonwealth University Honors Students, Southern Company, and a few individual commenters suggested that the accident reporting requirement in this rule should be modeled after the accident reporting requirement for manned aircraft, which, among other things, requires an operator to notify NTSB of an accident resulting in death or “serious injury” (see 49 CFR 830.2) or of damage to property, other than the aircraft, estimated to exceed $25,000 for repair (including materials and labor) or fair market value in the event of total loss, whichever is less. (See 49 CFR 830.5(a)(6)).

The Kansas State University UAS Program and Cherokee Nation Technologies said the FAA should follow the NTSB reporting requirement for property damage, but made no comment regarding the injury component of the proposed accident reporting requirement. NTSB also pointed to the manned-aircraft reporting requirement for property damage and suggested the FAA take this, and other criteria included in 49 CFR part 830, into account. An individual commenter pointed out that the NTSB has specific reporting requirements for UAS, and said the FAA’s proposed accident reporting requirement should therefore be amended to begin with the phrase: “In addition to UAS accident/incident reporting requirement of the National Transportation Safety Board… .”
Several other commenters also only addressed the property damage component of the accident reporting requirement. An individual commenter said no accident need be reported where the property damage is considered inconsequential by the owner of the property. SkySpecs recommended a reporting requirement for property damage above $100, or if an insurance report is filed. The Center of Innovation-Aerospace, Georgia Department of Economic Development recommended a $500 threshold, which it said is a common deductible amount for property and automobile insurance. The Oklahoma Governor’s Unmanned Aerial Systems Council (which explicitly supported the proposed requirement to report all accidents resulting in any injury) expressed concern that a threshold lower than $1,000 would result in unnecessary and burdensome reporting of information and data that would not be beneficial to the FAA, the public, or the industry in general. The American Insurance Association recommended a $5,000 threshold for property damage. The Small UAV Coalition (who also supported the proposed requirement to report accidents causing any injury) said accidents resulting in property damage should only be reportable if the damage caused is to the property of someone not involved in the operation. The commenter did not propose a minimum monetary threshold for this property damage to be reportable.

DJI, which opposed applying the NTSB accident reporting criteria to small UAS, suggested that the FAA look to how other Federal agencies, such as the National Highway Traffic Safety Administration, categorize injury by level of severity. Airport Council International-North America and Clean Gulf Associations said the injury component of the proposed accident reporting requirement should be expanded to include a requirement to report all accidents resulting in death.

Two commenters specifically addressed operations in an industrial setting that may result in injury or property damage. The American Chemistry Council said there should be no reporting requirement for operations in an industrial setting that cause workplace injuries that are covered by OSHA reporting requirements or cause less than $25,000 in damage to private property that is owned and operated by the facility owner. Associated General Contractors of America also encouraged the FAA to exclude any operations resulting in “OSHA-recordable” injuries. The commenter further recommended the FAA exclude operations resulting in “de minimis” property damage from the reporting requirement.

The FAA agrees with commenters who suggested that injuries and property damage falling below certain thresholds should not be reportable. Requiring remote pilots in command to report minimal injuries (such as a minor bruise from the unmanned aircraft) or minimal property damage (such as chipping a fleck of paint off an object) would impose a significant burden on the remote pilots. This burden would not correspond to a safety/oversight benefit because an operation resulting in minimal injury or minimal property damage may not correspond with a higher likelihood of a regulatory violation.

In determining the threshold at which to set injury reporting, the FAA agrees with commenters who suggested that the threshold should generally be set at serious injury. A serious injury is an injury that qualifies as Level 3 or higher on the Abbreviated Injury Scale (AIS) of the Association for the Advancement of Automotive Medicine. The AIS is an anatomical scoring system that provides a means of ranking the severity of an injury and is widely used by emergency medical personnel. Within the AIS system, injuries are ranked on a scale of 1 to 6, with Level 1 being a minor injury, Level 2 moderate, Level 3 serious, Level 4 severe, Level 5 critical, and Level 6 a non-survivable injury. An AIS Level 3 injury is one that is reversible but usually involves overnight hospitalization.

ALIS LEVELSeverityType of Injury
1MinorSuperficial
2ModerateReversible Injury; medical attention required

 

3SeriousReversible injury; hospitalization required
4SevereLife threatening; not fully recoverable without medical care.
5CriticalNon-reversible injury; unrecoverable even with medical care
6Virtually Un-SurvivableFatal

The FAA currently uses serious injury (AIS Level 3) as an injury threshold in other FAA regulations.154 DOT and FAA guidance also express a preference for AIS methodology in classifying injuries for the purpose of evaluating the costs and benefits of FAA regulations.155 Additionally, the U.S. National Highway Traffic Safety Administration (NHTSA) uses AIS level 3 injuries as the metric evaluating the effectiveness of occupant safety measures for automobiles156 and for estimating the costs
associated with automobile accidents.157 The FAA has significant operational experience administering the serious-injury threshold and because the AIS Level 3 standard is widely used and understood, it is the appropriate injury threshold to use in this rule.

In addition to serious injuries, this rule will also require accident reporting for accidents that result in any loss of consciousness because a brief loss of consciousness may not rise to the level of a serious injury. However, the confined-area-of-operation regulations discussed in section III.E.3 of this preamble, such as the general prohibition on flight over people, are designed with the express purpose of preventing accidents in which a small unmanned aircraft hits a person on the head and causes them to lose consciousness or worse. Thus, if there is a loss of consciousness resulting from a small UAS operation, there may be a higher probability of a regulatory violation.

With regard to the threshold for reporting property damage, the FAA agrees with the Center of Innovation-Aerospace, Georgia Department of Economic Development, which suggested a property damage threshold of $500. Property damage below $500 is minimal and may even be part of the remote pilot in command’s mitigations to ensure the safety of the operation. For example, a remote pilot in command may mitigate risk of loss of positive control by positioning the small UAS operation such that the small unmanned aircraft will hit uninhabited property in the event of a loss of positive control. However, property damage above $500 is not minimal, and as such, this rule will require reporting of a small UAS accident resulting in property damage exceeding $500.

In calculating the property damage, the FAA notes that sometimes, it may be significantly more cost-effective simply to replace a damaged piece of property rather than repair it. As such, for purposes of the accident-reporting requirement of part 107, property damage will be calculated by the lesser of the repair price or fair market value of the damaged property. For example, assume a small UAS accident that damages a piece of property whose fair market value is $200. Assume also that it would cost $600 to repair the damage caused by the small UAS accident. In this scenario, the remote pilot in command would not be required to report the accident because the fair market value would be lower than the repair cost, and the fair market value would be below $500. The outcome would be the same if the values in the scenario are reversed (repair cost of $200 and fair market value of $600) because the lower value (repair cost) would be below $500.

Transport Canada questioned whether small UAS operators would be permitted to continue operating their UAS after experiencing an accident/incident, or whether they would be expected to cease operations until the accident has been reported and the causal factors addressed. In response, the FAA notes that a remote pilot would need to cease operations only if the FAA revokes or suspends the remote pilot certificate or the unmanned aircraft, as a result of the accident, is no longer in a condition for safe operation in accordance with part 107.

A few commenters recommended changes to the 10-day deadline for reporting operations that result in injury or property damage. The American Insurance Association said the reporting deadline should be changed to 10 business days. The Kansas State University UAS Program recommended a 3-day reporting deadline. The Professional

Helicopter Pilots Association and Virginia Department of Aviation recommended a 48-hour reporting deadline, while an individual commenter suggested a 24-hour deadline. The Oregon Department of Aviation also recommended the FAA shorten the proposed 10-day reporting deadline, but did not suggest an alternative deadline. DroneView Technologies suggested a 3-hour reporting deadline.
An accident triggering the reporting requirement of § 107.9 may involve extensive injuries or property damage. The remote pilot in command’s first priority should be responding to the accident by, among other things, ensuring that any injured people receive prompt medical attention. Having to immediately draft an accident report for the FAA may interfere with that priority, and as such, the FAA declines to make the reporting deadline shorter than the 10 calendar days proposed in the NPRM. The FAA also declines to extend the reporting deadline beyond 10 calendar days because 10 days should provide a sufficient amount of time to respond to the accident and draft an accident report for the FAA.

Several other commenters, including NBAA, and NAMIC, recommended that the FAA create an online reporting system. NBAA also recommended the FAA work with NASA to determine what modifications if any would be required to the Aviation Safety Reporting System (ASRS) to accommodate small UAS reports. An individual commenter similarly recommended the ASRS be expanded to allow small UAS operators to make reports of unsafe actions on the part of manned aircraft or other small UAS operators. That commenter also suggested the FAA consider creating an online reporting mechanism for operators to voluntarily provide operational data without fear of enforcement actions being taken against them. GAMA requested that the FAA review the agency’s Near-Midair

Collision System (NMACS) incident reporting system to ensure that the existing business rules for reporting NMACs appropriately consider UAS. Texas A & M University-Corpus Christi/LSUASC suggested the COA online portal be used for accident reporting. Virginia Commonwealth University Honors Students also stated that reporting of incident data to the U.S. Department of Interior’s SAFECOM system should continue as well.

This rule will allow an accident report to be submitted to the FAA electronically. The part 107 advisory circular provides guidance about how to electronically submit an accident report.
Several commenters recommended that certain incidents other than operations resulting in injury or property damage should also be reportable. The State of Nevada, the Nevada Institute for Autonomous Systems, and the Nevada FAA-designated UAS Test Site, commenting jointly, said the accident reporting requirement should be expanded to include a requirement to report any “lost platform” incident. ALPA, AIA, AUVSI, and University of North Carolina System also said the proposed rule should include a reporting requirement for “lost link” or “fly away” incidents. ALPA asserted that such a reporting requirement will allow the FAA to develop hard data on the reliability of these systems and therefore more accurately evaluate risk.
Modovolate said operations that involve complete loss of control or failure of automated safety systems such as airspace exclusion or return to home should also be reportable. An individual commenter said reports should be filed for operations where there is: failure of the control device, failure of the flight control system, flyaway (lateral or vertical), loss of control as a result of either electrical failure or radio interference, or a close encounter with a manned aircraft where the manned aircraft was observed to make “an abrupt avoidance maneuver.” Airport Council International-North America similarly recommended the accident reporting requirement be expanded to include an operation where an operator was required to take evasive action to avoid manned aircraft, especially in cases where such actions took place within 5 miles of airports. The Professional Helicopter Pilots Association recommended a reporting requirement for all accidents involving other aircraft during flight (whether manned or unmanned), as well as all accidents resulting in substantial damage to the operator’s UAS.

CAPA noted that the proposal does not address reporting “HATR or other incidents that do not rise to the level or property damage or injury.” The commenter recommended these incidents be reported and tracked “to ensure this policy is effective and continues to provide safe operating procedures for small UAS operations as they interface with commercial and civil aviation traffic.” ALPA suggested there would be a potential safety benefit to establishing a process for small UAS owners to report malfunctions, identified defects, and other in-service problems. ALPA noted that this operational data could be used in subsequent risk evaluation.

The purpose of the accident-reporting requirement in this rule is to allow the FAA to more effectively allocate its oversight resources by focusing on potential regulatory violations that resulted in accidents. The FAA declines to mandate reporting of other events, such as the ones suggested by the commenters, because they do not rise to the level of a significant accident. The FAA notes, however, that a regulatory violation can occur
482
without resulting in a serious accident and any regulatory violation may be subject to enforcement action.
The FAA also notes that the Aviation Safety Reporting System (ASRS) is available for voluntary reporting of any aviation safety incident or situation in which aviation safety may have been compromised. The FAA offers ASRS reporters guarantees and incentives to encourage reporting by holding ASRS reports in strict confidence and not using ASRS information against reporters in enforcement actions. Further, the FAA agrees that data collection is a valuable tool for determining a baseline for performance, reliability, and risk assessment. The FAA plans to develop a tool where remote pilots of small UAS can voluntarily share data which may not meet the threshold for accident reporting. This would provide a means for evaluation of operational integrity for small UAS.
NOAA supported the proposed accident reporting requirement, but said it should be expanded to include a requirement to report an operation that results in injury to protected wildlife. NOAA asserted that because many wildlife are also federally regulated, managed, and/or protected species, it is critical that the FAA require reporting of injury to these species, so other Federal agencies and interested parties can assess potential hazards caused by small UAS.
The FAA currently provides a way for all aircraft operators in the NAS to voluntarily report wildlife strikes. Small UAS remote pilots who encounter a wildlife strike may also submit a report. Further, remote pilots may be obligated to report death or injury to wildlife under Federal, State, or local law.

A few commenters opposed the imposition of an accident reporting requirement. Trimble argued that the damage a small UAS can cause is “sufficiently small” that operators should not have an obligation to report an accident to the FAA or NTSB. Instead, the commenter said, if an operator is unable to land a small UAS safely and an incident occurs, the operator should only be required to notify local law enforcement. An individual commenter who opposed a reporting requirement recommended “developing law enforcement relationships to facilitate investigations, insurance claims, etc.”
The FAA disagrees with commenters who suggested that no data should be reported to the FAA. As discussed earlier, the FAA plans to use data collected from these reports to more effectively allocate its oversight resources. In response to the argument that accidents caused by small UAS are small, the FAA notes that reporting for accidents resulting in minor injuries or property damage below $500 will not be required.

The FAA has long-established relationships with law enforcement and values the assistance that law enforcement provides during accident/incident investigations. However, as discussed earlier, the FAA cannot delegate its formal enforcement authority to other entities such as local law enforcement personnel.

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Singer v. City of Newton-(Case Declaring Local Drone Law Illegal)

 in Drone Lawsuits / Federal Drone Law / State Drone Law

Update: The City of Newton appealed it to the circuit court but later asked for the case to be dismissed which the court granted.

The City of Newton, Massachusetts passed a drone ordinance on December 19, 2016. The ordinance requires all drones to be registered, bans drones below 400ft above ground level without property owner permission, and prohibits flights beyond the visual line of sight of the operator.

Dr. Michael Singer, a medical doctor and professor at Harvard, filed suit in the federal district court of Massachusetts. On September 21, 2017, the court ruled that four provisions of the local ordinance were conflict preempted.

To read more drone law cases, go to my Drone Lawsuit/Litigation Database.

Table of Contents:

The Problematic Provisions of Newton’s Drone Ordinance

The City of Newton passed an ordinance which regulated the flight of all unmanned aircraft. The ordinance that passed had multiple provisions but Singer challenged 4 of them. Interesting to note, at the time of this lawsuit, Massachusetts didn’t have an state level drone laws.  I have organized the ordinance provisions below to ease in conceptualization.

1. Registration.
Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

2. Operational Restrictions.
A. Altitude
Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

B. Beyond Line of Sight of the Operator
Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Brief Discussion on Preemption

Article 6 of the United States Constitution basically stands for where federal and state law interact/conflict, federal law wins. This is called preemption. There are two types of preemption: express and implied preemption. Express is easy to figure out as the law states it clearly. However, with implied preemption, things are more difficult. Courts have to figure what to do, or really what Congress should have said, but didn’t, and now the court has to clean up the mess. There are two types of implied preemption: field and conflict. Field preemption is where courts infer that Congress has regulated the area so much that they did not intend to leave any area of that field available to be regulated by the states. Conflict preemption is where courts imply that Congress did not intend to allow state laws to substantially frustrate the implementation of the federal law.
Dr. Michael Singer filed the lawsuit and alleged the 4 provisions above were field and conflict preempted by federal statutes and federal regulations.

District Court’s Ruling:

The court ruled the local ordinance was conflict preempted. Singer raised 4 issues and the court responded to each them.

1. Registration.

Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

Court: The City of Newton argued that the Taylor v. FAA case created a void to allow registration however there is no void created by the Taylor case. The FAA intended to be the exclusive register of unmanned aircraft. Therefore, this ordinance is conflict preempted.

2. Operational Restrictions.
A. Altitude

Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Court: This is conflict preempted because Congress intended the FAA to use airspace to integrate drones. The FAA picked 0-400ft above ground level for non-recreational flyers. This ordinance effectively frustrates Congress’ and FAA’s implementation of the integration of drones into the national airspace from 0-400ft above the ground level.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

Court: This is conflict preempted because there is no altitude limit, it goes up into navigable airspace.

B. Beyond Line of Sight of the Operator

Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Court: The Ordinance seeks to regulate the method of operating of drones, necessarily implicating the safe operation of aircraft. Courts have recognized that aviation safety is an area of exclusive federal regulation. The Ordinance limits the methods of piloting a drone beyond that which the FAA has already designated, while also reaching into navigable space. Intervening in the FAA’s careful regulation of aircraft safety cannot stand; thus subsection (c)(1)(b) is preempted.

In short, drone registration, complete drone bans, regulating navigable airspace, or limiting “the methods of piloting a drone beyond that which the FAA has already designated” are conflict preempted.

How Does the Singer v. City of Newton Case Affect Me?

This case is only binding in the jurisdiction of the federal district court of Massachusetts. It only struck down 4 provisions of the ordinance, not all of it.  Courts from other jurisdictions can look at this ruling but do NOT need to follow it. I suspect, however, other courts will likely follow the same rationale and invalidate state and local drone laws on the grounds they are conflict preempted ONLY. They will likely not answer field preemption questions.

Keep in mind that this case can be appealed to the 1st Federal Circuit Court of Appeals (Rhode Island, Massachusetts, New Hampshire, and Maine) and ruled upon which would result in more people being affected. I don’t know if it will be appealed.

How Can I Use This Case?

This case is extremely important in giving state and local governments guidance on what not to do. You should send this case to any elected officials who have passed a drone law or who are considering passing a drone law.

Warning to States, Cities, and Local Governments:

Many states, cities, towns, etc. have passed drone laws which would most likely be held by this judge to be conflict preempted. This ruling is only for the jurisdiction of the federal district court of Massachusetts, but other courts around the country can be persuaded by the reasoning in this ruling. In other words, this judge teed up how other courts can easily answer these preemption laws.

This judge ruled that drone registration, complete drone bans, regulating navigable airspace, and limiting “the methods of piloting a drone beyond that which the FAA has already designated” are all conflict preempted.

Problems With This Ruling/Issues Not Addressed:

• The court ruled on the grounds of conflict preemption but did not rule that aviation was field preempted or whether the airspace was expressly preempted.
• United States v. Causby is a U.S. Supreme Court case which raises the idea of a person owning airspace from the ground up to the “immediate reaches of the enveloping atmosphere.” What if the City of Newton were to create drone laws that applied to Causby airspace over their property or require permission to operate in Causby airspace over private property?
• The judge gave too much deference to the FAA’s guidance document to state and local governments when preemption is primarily focusing on Congress, not an agency’s thoughts, which constantly change, on what it thinks Congress wanted.
• With conflict preemption, the City of Newton can just go back and rework the law and see if Singer files suit again or see if they get struck down again. It would have been more beneficial for the drone industry to have a ruling on whether the airspace was expressly preempted or the field of aviation is field preempted. Instead, the court ruled very narrowly to resolve the case, but leave many issues on the table.
• The court struck down particular provisions which means other states and sub-divisions will just rework their laws to not step on any of the particular “land mines” that the City of Newton stepped on.
• How low does navigable airspace descend for drones? I would argue it goes all the way to the blade of grass because that is where drones take off and land from but the judge seems to indicate navigable airspace is somehow related to 14 CFR 91.119.
• What happens if the state or government does a copy-paste of the FAA regulations or says something along the lines of “You must do whatever the FAA says”?

Actual Text of the Ruling

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL S. SINGER,

Plaintiff,

CITY OF NEWTON,

Defendant.

YOUNG, D.J. September 21, 2017

FINDINGS OF FACT, RULINGS OF LAW, & ORDER

 

  1. INTRODUCTION

The crux of this dispute is whether portions of a certain

ordinance (the “Ordinance”) passed by the City of Newton

(“Newton”) on December 19, 2016 are preempted. First Am. Compl.

Declaratory and Injunctive Relief, ECF No. 12. Michael S.

Singer (“Singer”) challenges portions of the Ordinance which

require that all owners of pilotless aircraft (commonly referred

to as “drones” or “UAS”) register their pilotless aircraft with

Newton, and also prohibit operation of pilotless aircraft out of

the operator’s line of sight or in certain areas without permit

or express permission. Id.; Def. City Newton’s Mem. Law Supp.

Cross Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J., Ex. 2, Newton

Ordinances § 20-64, ECF No. 40-3.

 

In early March, Newton answered Singer’s complaint, Answer

Def. City of Newton First Am. Compl., ECF No. 17, and both

parties appeared before the Court soon after, when they agreed

to cross-file motions for summary judgment and proceed on a case

stated basis,1 Electronic Clerk’s Notes, ECF No. 21. Both

parties subsequently filed motions for summary judgment, Pl.’s

Corrected Mot. Summ. J., ECF No. 34; Def. City of Newton’s Cross

Mot. Summ. J., ECF No. 39, and fully briefed the issues, Pl.’s

Corrected Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), ECF No. 35;

Pl.’s Resp. Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”), ECF No.

50; Pl.’s Resp. City’s Statement Undisputed Facts (“Pl.’s Resp.

Facts”), ECF No. 51; Def. City Newton’s Mem. Law Supp. Cross

Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J. (“Def.’s Mem.”), ECF

No. 40; Def. City of Newton’s Statement Undisputed Facts Supp.

Cross Mot. Summ. J. and Resps. Pl.’s Statement Undisputed

Material Facts Supp. Mot. Summ. J. (“Def.’s Facts”), ECF No. 41;

1 The case stated procedure allows the Court, with the

parties’ agreement, to render a judgment based on the largely

undisputed record in cases where there are minimal factual

disputes. TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6

(1st Cir. 2007). In its review of the record, “[t]he [C]ourt is

. . . entitled to ‘engage in a certain amount of factfinding,

including the drawing of inferences.’” Id. (quoting United

Paperworkers Int’l Union Local 14 v. International Paper Co., 64

F.3d 28, 31 (1st Cir. 1995)).See also Amici Curiae Br. (“Amicus Br.”), ECF No. 57.2 After

oral argument on June 13, 2017, this Court took the matter under

advisement. Electronic Clerk’s Notes, ECF No. 59.

 

2. FINDINGS OF FACT

Newton is a municipality in the Commonwealth of

Massachusetts and is organized under a charter pursuant to the

Home Rule Amendment of the Massachusetts Constitution. Pl.’s

Resp. Facts ¶ 1; Def.’s Facts ¶ 1. Singer resides in Newton.

Am. Compl. ¶ 22. He is a Federal Aviation Administration

(“FAA”)-certified small unmanned aircraft pilot and owns and

operates multiple drones in Newton. Id. ¶¶ 22, 25. Singer does

not operate or register his drones as a hobbyist. Tr. Case-

Stated Hearing (“Tr.”) 20:15-18, ECF No. 60.

In August 2015, members of Newton’s City Council proposed

discussing the possibility of regulating drones for the

principal purpose of protecting the privacy interests of

Newton’s residents. Pl.’s Resp. Facts ¶ 3; Def.’s Facts ¶ 3.

On March 23, 2016, an initial draft of the Ordinance was

presented for discussion. See Def.’s Mem., Ex. 3, Public Safety

& Transportation Committee Report dated Mar. 23, 2016 1, ECF No.

40-4. Following further inquiry and amendment, see, e.g.,

Def.’s Mem., Ex. 7, Public Safety & Transportation Committee

Report dated May 5, 2016 1, ECF No. 40-8; Def.’s Mem., Ex. 9,

Public Safety & Transportation Committee Report dated Sept. 7,

2016 6-7, ECF No. 40-10, but without FAA approval, Def.’s Mem.,

Ex. 16, Def. City of Newton’s Answers Pl.’s First Set Interrogs.

(“Def.’s Answers Interrogs.”) 3, ECF No. 40-17, Newton’s City

Council approved the final Ordinance on December 19, 2016,

Def.’s Mem., Ex. 12, Public Safety & Transportation Committee

Report dated Dec. 19, 2016 1, ECF No. 40-13.

 

The Ordinance states in part:

Purpose: The use of pilotless aircraft is an increasingly

popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also

protecting the privacy of residents throughout the City.

In order to prevent nuisances and other disturbances of the

enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is

intended to promote the public safety and welfare of the

City and its residents. In furtherance of its stated

purpose, this section is intended to be read and

interpreted in harmony with all relevant rules and

regulations of the Federal Aviation Administration, and any

other federal, state and local laws and regulations.

 

 

Def.’s Mem., Ex. 2, Newton Ordinances § 20-64, ECF No. 40-3.

“Pilotless aircraft” is defined as “an unmanned, powered aerial

vehicle, weighing less than 55 pounds, that is operated without

direct human contact from within or on the aircraft.” Id. § 20-

64(a). In section (b), the Ordinance imposes certain

registration requirements upon owners of all pilotless aircraft.

Id. § 20-64(b). Section (c) sets forth operating prohibitions, including, inter alia, a ban on the use of a pilotless aircraft

below an altitude of 400 feet over private property without the

express permission of the owner of the private property, id.

  • 20-64(c)(1)(a), “beyond the visual line of sight of the

Operator,” id. § 20-64(c)(1)(b), “in a manner that interferes

with any manned aircraft,” id. § 20-64(c)(1)(c), over Newton

city property without prior permission, id. § 20-64(c)(1)(e), or

to conduct surveillance or invade any place where a person has a

reasonable expectation of privacy, id. § 20-64(c)(1)(f)-(g).

Violations of the Ordinance are punishable by a $50 fine

following a one-time warning. Id. § 20-64(f).

 

III. RULINGS OF LAW

Specifically, Singer challenges four subsections of the

Ordinance: the registration requirements of section (b) and the

operation limits of subsections (c)(1)(a), (c)(1)(b), and

(c)(1)(e). Pl.’s Mem 3-4; Pl.’s Resp. i. Singer argues that

the Ordinance is preempted by federal law because it attempts to

regulate an almost exclusively federal area of law, Pl.’s Mem.

6-15, in a way that conflicts with Congress’s purpose, id. at

14-15. In turn, Newton posits that the Ordinance is not

preempted by federal law because it falls within an area of law

that the FAA expressly carved out for local governments to

regulate, Def.’s Mem. 8-10, and thus can be read in harmony with

federal aviation laws and regulations, id. at 10-11.

A. Preemption Standards

The Supremacy Clause of the United States Constitution

provides that federal laws are supreme, U.S. Const. art. VI, cl.

2, thus requiring that federal laws preempt any conflicting

state or local regulations, see Maryland v. Louisiana, 451 U.S.

725, 746 (1981) (citing McCulloch v. Maryland, 4 Wheat. 316, 427

(1819)). Under our federalist system, however, a court must be

wary of invalidating laws in areas traditionally left to the

states unless the court is entirely convinced that Congress

intended to override state regulation. See, e.g., Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991) (citing Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). In contrast, if a

state government attempts to regulate an area traditionally

occupied by the federal government, a court need not seek to

avoid preemption. See United States v. Locke, 529 U.S. 89, 108

(2000). Neither of these circumstances requires that Congress

explicitly have stated its purpose; “[t]he question, at bottom,

is one of statutory intent.” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 383 (1992).

 

If Congress has not expressly preempted an area of law,

then a court must determine whether field or conflict preemption

is evident. See French v. Pan Am Express, Inc., 869 F.2d 1, 2

(1st Cir. 1989). Field preemption occurs where federal

regulation is so pervasive and dominant that one can infer

Congressional intent to occupy the field. See Massachusetts

Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 179 (1st

Cir. 1999) (citing Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947); French, 869 F.2d at 2). Conflict preemption

arises when compliance with both state and federal regulations

is impossible or if state law obstructs the objectives of the

federal regulation. See Grant’s Dairy – Me., LLC v.

Commissioner of Me. Dept. of Agric., Food & Rural Res., 232 F.3d

8, 15 (1st Cir. 2000) (citing Gade v. National Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).

B. The Federal Aviation Administration

Congress has stated that “[t]he United States Government

has exclusive sovereignty of airspace of the United States.” 49

U.S.C. § 40103(a)(1). This declaration does not preclude states

or municipalities from passing any valid aviation regulations,

see Braniff Airways v. Nebraska State Bd. of Equalization &

Assessment, 347 U.S. 590, 595 (1954), but courts generally

recognize that Congress extensively controls much of the field,

see, e.g., Chicago & S. Air Lines, Inc. v. Waterman Steamship

Corp., 333 U.S. 103, 105, 107 (1948); United Parcel Serv., Inc.

Flores-Galarza, 318 F.3d 323, 336 (1st Cir. 2003).

Accordingly, where a state’s exercise of police power infringes

upon the federal government’s regulation of aviation, state law

is preempted. See City of Burbank v. Lockheed Air Terminal

Inc., 411 U.S. 624, 638-39 (1973).

In the FAA Modernization and Reform Act of 2012, Congress

directed the FAA to “develop a comprehensive plan to safely

accelerate the integration of civil unmanned aircraft systems

into the national airspace system,” FAA Modernization and Reform

Act of 2012, Pub. L. No. 112-95 § 332, 126 Stat. 11, 73 (2012)

(codified at 49 U.S.C. § 40101 note), while limiting the FAA

from “promulgat[ing] any rule or regulation regarding a model

aircraft,” id. § 336(a). Under this directive, the FAA

promulgated 14 C.F.R. part 107, which declares that it “applies

to the registration, airman certification, and operation of

civil small unmanned aircraft systems[3] within the United

States.” 14 C.F.R. § 107.1(a). The rule requires, inter alia,

that anyone controlling a small unmanned aircraft system

register with the FAA, id. §§ 91.203, 107.13; and keep the

aircraft within the visual line of sight of the operator or a

designated visual observer, id. §§ 107.3, 107.31, and below an

altitude of 400 feet above ground level or within a 400 foot

radius of a structure, id. § 107.51(b).

 

 

  1. Field Preemption

Singer argues that because the federal government regulates

unmanned aircraft and local aircraft operations, there is

federal intent to occupy the field. Pl.’s Mem. 6-11; Pl.’s

Resp. 3; see also Amicus Br. 7-29. Newton does not challenge

that aviation is a traditionally federal field, but counters

that federal regulations explicitly grant local authorities the

power to co-regulate unmanned aircraft. Def.’s Mem. 8-11.

The FAA has stated:

 

[C]ertain legal aspects concerning small UAS use may be

best addressed at the State or local level. For example,

State law and other legal protections for individual

privacy may provide recourse for a person whose privacy may

be affected through another person’s use of a UAS.

. . . The Fact Sheet also summarizes the Federal

responsibility for ensuring the safety of flight as well as

the safety of people and property on the ground as a result

of the operation of aircraft. Substantial air safety

issues are implicated when State or local governments

attempt to regulate the operation of aircraft in the

national airspace. The Fact Sheet provides examples of

State and local laws affecting UAS for which consultation

with the FAA is recommended and those that are likely to

fall within State and local government authority. For

example, consultation with FAA is recommended when State or

local governments enact operation UAS restrictions on

flight altitude, flight paths; operational bans; or any

regulation of the navigable airspace. The Fact Sheet also

notes that laws traditionally related to State and local

police power — including land use, zoning, privacy,

trespass, and law enforcement operations — generally are

not subject to Federal regulation.

 

81 Fed. Reg. 42063 § (III)(K)(6). Thus, the FAA explicitly

contemplates state or local regulation of pilotless aircraft,

defeating Singer’s argument that the whole field is exclusive to the federal government. The FAA’s guidance, however, does not

go quite as far as Newton argues — rather than an express

carve-out for state and localities to regulate, the guidance

hints that whether parallel regulations are enforceable depends

on the principles of conflict preemption.4

D. Conflict Preemption

Singer argues that the challenged sections of the Ordinance

obstruct federal objectives and directly conflict with federal

regulations. Pl.’s Mem. 11-17. Newton fails to respond

specifically to these arguments, again asserting that the FAA

has granted states and localities the power to co-regulate

pilotless aircraft. Def.’s Mem. 8-11. The Court addresses each

challenged subsection of the Ordinance in turn.

 

  1. Section (b)

Singer argues that section (b) of the Ordinance infringes

upon and impermissibly exceeds the FAA’s exclusive registration

requirements. Pl.’s Mem. 11-15; Pl.’s Resp. 6-7. Section (b)

states: “Owners of all pilotless aircraft shall register their

pilotless aircraft with the City Clerk’s Office, either

individually or as a member of a club . . . .” Newton

Ordinances § 20-64(b). The Ordinance defines “pilotless aircraft” as “an unmanned, powered aerial vehicle, weighing less

than 55 pounds, that is operated without direct human contact

from within or on the aircraft.” Id. § 20-64(a).

The FAA has also implemented mandatory registration of

certain drones. See 14 C.F.R. §§ 48.1-48.205. Although such

registration initially applied both to model and commercial

drones, the FAA may not require registration of model aircraft,

because doing so would directly conflict with the Congressional

mandate in the FAA Modernization and Reform Act. See Taylor v.

Huerta, 856 F.3d 1089, 1092, 1094 (D.C. Cir. 2017). Newton

argues that this space creates a void in which the city may

regulate drones. Tr. 9:5-10:1. The FAA, however, explicitly

has indicated its intent to be the exclusive regulatory

authority for registration of pilotless aircraft: “Because

Federal registration is the exclusive means for registering UAS

for purposes of operating an aircraft in navigable airspace, no

state or local government may impose an additional registration

requirement on the operation of UAS in navigable airspace

without first obtaining FAA approval.” Def.’s Mem., Ex. 14,

State and Local Regulation of Unmanned Aircraft Systems (UAS)

Fact Sheet5 (“FAA UAS Fact Sheet”) 2, ECF No. 40-15. Newton did

5 Although the FAA UAS Fact Sheet is not a formal rule, it

is the FAA’s interpretation of its own rule, which this Court

accords deference under Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 413-14 (1945). not obtain FAA approval before enacting the Ordinance. Def.’s

Answers Interrogs. 3. Further, regardless of whether there is

some space that would allow Newton to require registration of

model drones, here Newton seeks to register all drones, Tr.

10:3-14, without limit as to the at which altitude they operate,

in clear derogation of the FAA’s intended authority.

Accordingly, the Ordinance’s registration requirements are

preempted.

 

  1. Subsections (c)(1)(a) and (c)(1)(e)

Singer argues that subsections (c)(1)(a) and (c)(1)(e)

conflict with FAA-permitted flight, Pl.’s Mem. 11, and restrict

flight within the navigable airspace, id. at 12-14. Subsection

(c)(1)(a) prohibits pilotless aircraft flight below an altitude

of 400 feet over any private property without the express

permission of the property owner. Newton Ordinances § 20-

64(c)(1)(a). Subsection (c)(1)(e) prohibits pilotless aircraft

flight over public property without prior permission from

Newton. Id. § 20-64(c)(1)(e). Notably, subsection (c)(1)(e)

does not limit its reach to any altitude. See id. This alone

is a ground for preemption of the subsection because it

certainly reaches into navigable airspace, see 49 U.S.C.

40102(a)(32); 14 C.F.R. § 91.119. Subsections (c)(1)(a) and

(c)(1)(e) work in tandem, however, to create an essential ban on

drone use within the limits of Newton. Nowhere in the city may an individual operate a drone without first having permission

from the owner of the land below, be that Newton or a private

landowner.

 

The FAA is charged with “prescrib[ing] air traffic

regulations on the flight of aircraft . . . for —

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground; [and]

(C) using the navigable airspace efficiently.” 49 U.S.C.

40103(b)(2). In 2012, Congress tasked the FAA with

“develop[ing] a comprehensive plan to safely accelerate the

integration of civil unmanned aircraft systems into the national

airspace system.” Pub. L. No. 112-95 § 332. In so doing, the

FAA mandated that drone operators keep drones below an altitude

of 400 feet from the ground or a structure. 14 C.F.R.

107.51(b). Newton’s choice to restrict any drone use below

this altitude thus works to eliminate any drone use in the

confines of the city, absent prior permission. This thwarts not

only the FAA’s objectives, but also those of Congress for the

FAA to integrate drones into the national airspace. Although

Congress and the FAA may have contemplated co-regulation of

drones to a certain extent, see 81 Fed. Reg. 42063

  • (III)(K)(6), this hardly permits an interpretation that

essentially constitutes a wholesale ban on drone use in Newton.

Accordingly, subsections (c)(1)(a) and (c)(1)(e) are preempted.

 

  1. Subsection (c)(1)(b)

Singer argues that subsection (c)(1)(b) conflicts with the

FAA’s visual observer rule and related waiver process, which

only the FAA can modify. Pl.’s Mem. 13 (citing 49 U.S.C.

  • 106(f)(2), (g)(1); 14 C.F.R. §§ 107.31, 107.205). Subsection

(c)(1)(b) states that no pilotless aircraft may be operated “at

a distance beyond the visual line of sight of the Operator.”

Newton Ordinances § 20-64(c)(1)(b). The Ordinance neither

defines the term “Operator,” nor sets an altitude limit.

The FAA “requires a delicate balance between safety and

efficiency, and the protection of persons on the ground . . . .

The interdependence of these factors requires a uniform and

exclusive system of federal regulation.” City of Burbank, 411

U.S. at 638-39 (internal citations omitted). The Ordinance

seeks to regulate the method of operating of drones, necessarily

implicating the safe operation of aircraft. Courts have

recognized that aviation safety is an area of exclusive federal

regulation. See, e.g., Goodspeed Airport LLC v. East Haddam

Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 208 (2d

Cir. 2011) (“Congress has established its intent to occupy the

entire field of air safety, thereby preempting state regulation

of that field.”); US Airways, Inc. v. O’Donnell, 627 F.3d 1318,

1326 (10th Cir. 2010) (“[F]ederal regulation occupies the field

of aviation safety to the exclusion of state regulations.”); Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007)

(“Congress has indicated its intent to occupy the field of

aviation safety.”). The First Circuit, in fact, has ruled “that

Congress intended to occupy the field of pilot regulation

related to air safety.” French, 869 F.2d at 4. In French, the

First Circuit took note of Congress’s delegation of authority to

the FAA to issue the certificate — and the terms for obtaining

it — required for any person to pilot a commercial aircraft.

See id. at 3. Concluding that this grant of authority and the

FAA’s subsequent regulations expressed Congress’s intent to

preempt any state law in the area, id. at 4, the First Circuit

struck down Rhode Island’s statute requiring airline pilots to

submit to drug testing, see id. at 7.

 

The circumstances are not so different here. Congress has

given the FAA the responsibility of regulating the use of

airspace for aircraft navigation and to protect individuals and

property on the ground, 49 U.S.C. § 40103(b)(2), and has

specifically directed the FAA to integrate drones into the

national airspace system, Pub. L. No. 112-95 § 332. In

furtherance of this duty, the FAA has designated specific rules

regarding the visual line of sight for pilotless aircraft

operation. See 14 C.F.R. §§ 107.31-35, 107.205. First, the FAA

requires either that (1) a remote pilot both command and

manipulate the flight controls or (2) a visual observer be able to see the drone throughout its flight. Id. § 107.31. The

regulations define “visual observer” as “a person who is

designated by the remote pilot in command to assist the remote

pilot in command and the person manipulating the flight controls

of the small UAS to see and avoid other air traffic or objects

aloft or on the ground.” Id. § 107.3. Second, the FAA allows

waiver of the visual observer rule. Id. §§ 107.200, 205.

The Ordinance limits the methods of piloting a drone beyond

that which the FAA has already designated, while also reaching

into navigable space. See Newton Ordinances § 20-64(c)(1)(b).

Intervening in the FAA’s careful regulation of aircraft safety

cannot stand; thus subsection (c)(1)(b) is preempted.

 

CONCLUSION

For the foregoing reasons, this Court holds that Ordinance

sections (b), (c)(1)(a), (c)(1)(b), and (c)(1)(e) are preempted

and judgment will enter so declaring. As it is unchallenged,

the remainder of Newton’s Ordinance stands. Of course, nothing

prevents Newton from re-drafting the Ordinance to avoid conflict

preemption.

 

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE

 

Actual Text of Newton’s Ordinance

Sec. 20-64. Pilotless Aircraft Operation.

Purpose: The use of pilotless aircraft is an increasingly popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also protecting the privacy of residents throughout the City. In

order to prevent nuisances and other disturbances of the enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is intended to promote the public safety and welfare of the City

and its residents. In furtherance of its stated purpose, this section is intended to be read and interpreted in harmony

with all relevant rules and regulations of the Federal Aviation Administration, and any other federal, state and

local laws and regulations.

 

(a) Definitions:

Pilotless Aircraft – an unmanned, powered aerial vehicle, weighing less than 55 pounds, that is operated

without direct human contact from within or on the aircraft.

(b) Registration: Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office,

either individually or as a member of a club, as follows:

(1) Individual Registration: Individual owners of pilotless aircraft shall register each pilotless aircraft with the

City Clerk’s office, prior to operation. The cost of registration shall be $10.00 per Owner and such cost of

registration shall include all pilotless aircraft owned by the Owner. Owners must have proof of

registration in their possession when operating a pilotless aircraft. Registration shall include the

following:

  1. a) The owner’s name, address, email address and phone number;
  2. b) The make, model, and serial number, if available, of each pilotless aircraft to be registered;
  3. c) A copy of the Owner’s Federal Aviation Administration Certificate of Registration for pilotless

aircraft;

 

(2) Club Registration: Members of a pilotless aircraft hobby club may register their pilotless aircraft through a

responsible adult member of the Club. Each Club shall be issued a single identifying registration number

by the City Clerk’s Office to be affixed to each pilotless aircraft belonging to members of the Club. The

cost of Club Registration shall be $10 per Club and the cost of registration shall include all members of

that Club. The responsible adult member shall update the Club’s roster of members with the Clerk’s

office on an annual basis. All other requirements of Section 2(a)(i-iii) shall apply to Club registration.

(c) Operating Prohibitions. The use and operation of all pilotless aircraft within the City shall be subject to the

following prohibitions.

(1) No pilotless aircraft shall be operated:

  1. a) over private property at an altitude below 400 feet without the express permission of the owner of said private property;
  2. b) at a distance beyond the visual line of sight of the Operator;
  3. c) in a manner that interferes with any manned aircraft;
  4. d) in a reckless, careless or negligent manner;
  5. e) over any school, school grounds, or other City property or sporting event without prior permission

from the City, unless a permit is required as in Section 4, below;

  1. f) for the purpose of conducting surveillance unless expressly permitted by law or court order;
  2. g) for the purpose of capturing a person’s visual image, audio recording or other physical impression in

any place where that person would have a reasonable expectation of privacy;

  1. h) over any emergency response efforts;
  2. i) with the intent to harass, annoy, or assault a person, or to create or cause a public nuisance;
  3. j) in violation of federal or state law, or any Ordinance of the City of Newton.

(2) The Chief of Police, or designee, may prohibit the use or operation of pilotless aircraft where it is allowed,

or allow the operation of pilotless aircraft where it is prohibited, during an impending or existing

emergency, or when such use or operation would pose a threat to public safety.

(d) Permit May be Required:

 

(1) Individual Permits: A permit may be required to use land maintained by the Parks and Recreation

Department, or by any other Department or Commission of the City, to launch or land a pilotless aircraft.

Such permits may be issued by the Parks and Recreation Department Head, or designee, or the City entity

charged with managing the property, or designee. Individual operators shall adhere to the registration

requirements of Section 2 above.

 

(2) Event Permits: The Parks and Recreation Department, or any Department or Commission charged with

managing land owned by the City, may issue Permits for groups and special events. Such Event Permits

will be issued to a responsible person who will insure that all operators participating in the event adhere to

the requirements of this ordinance, except that individual participants in an event under this subsection are

not required to register in accordance with Section 2.

 

(3) Educational Permits: The Parks and Recreation Department, or any other City agency with authority over

the use and maintenance of City land, may permit the operation of pilotless aircraft for educational

purposes. Educational permits must be issued to a responsible adult, and in conjunction with an

educational purpose sanctioned by an educational organization.

 

(e) Noise Ordinance: All Operators shall comply with the Noise Ordinance at Section 20-13, as amended, at all

times while operating pilotless aircraft within the City.

(f) Penalties: A violation of any section of this Ordinance shall result in a warning for the first offense and shall

be punishable by a fine of $50.00 for each offense thereafter.

(g) Separate Violations: Action taken pursuant to this section shall not bar any separate action by any other City

Department for any other violations.

(h) Severability: If any provision of this section is held to be invalid by a court of competent jurisdiction then

such provision shall be considered severable from the remaining provisions, which shall remain in full force and

effect.

(i) Regulations: The City and its Departments may promulgate rules, regulations and policies for the

implementation of this Ordinance. (Ord. No. A-96, 12-19-16)

Reichert v. FAA-(Drone Registration Class Action Lawsuit)

 in Drone Lawsuits

drone-lawsuitsQuick Summary of Reichert v. FAA:

The FAA created a set of registration regulations, contrary to law, which resulted in a lawsuit from John Taylor. The D.C. Circuit Court of Appeals struck down the law as being illegal. Now the FAA is getting sued in a class action lawsuit. The complaint is asking the court to (1) refund the illegal $5 registration fee that the class members paid to the FAA, (2) destroy all records illegally collected or created for each class member, (3) remove any reference to each proposed member’s registration, and (4) pay all costs and attorney fees.

Before we dive into some of the facts of the case, I just wanted to remind you that if you are needing help with waivers, authorizations, navigating drone law, or other legal matters relating to drones, please feel free to contact me.

Also, wanting to read more drone law cases? Go to my Drone Lawsuit/Litigation Database. :)

Table of Contents

Background of Reichert v. FAA:

The FAA Modernization and Reform Act (“FMRA”) of 2012 created a special protection on model aircraft that restricted the FAA’s regulation of them. The Section of the FMRA that outlined the restriction on the FAA is in Section 336. The FAA created a new set of regulations in Part 48  governing the Section 336 protected model aircraft. John Taylor filed a lawsuit against the FAA challenging the FAA’s Part 48 regulations. The D.C. Circuit Court of Appeal agreed with Taylor and held the drone regulations to be illegally created. (Note there were MANY reasons why it was illegal but the court only ruled on one of them). If you want to get into the details, here is my complete guide to the Taylor v. Huerta lawsuits.

The FAA eventually came out with a de-registration and refund process somewhat discreetly. The FAA’s reasoning for how they chose to do things was explained in a FAA memo I have a copy of:

“Although it is possible to collectively identify those who registered as ‘hobbyists’ in the registration database, the FAA is continuing to encourage voluntary registration by all small UAS owners for purposes of continuing education, which is essential to the purpose of the agency. It would therefore be counterintuitive to automatically delete the entire subset of ‘hobbyist’ owners without allowing those who are already registered the opportunity to remain registered.”

The de-registration and refund process appears to be intentionally designed to be difficult and also designed to dissuade potential applicants. See my article on the 5 evidences of this. 

After the Taylor v. Huerta ruling, Reichert called 844-FL Y-MY-UA for assistance to get refunded and de-registered. He left a message. As of the filing date, Reichert had not received a return call. On June 12, 2017, Reichert’s attorneys filed a class action lawsuit in federal district court. It is currently being litigated.

After Reichert filed, on December 12, 2017, the National Defense Authorization Act of 2017 “restored the Part 48 registration regulations for model aircraft” which basically amounted to Congress overuling the court in the Taylor v. Huerta case.

Note: that there is an even bigger class action lawsuit going on right now with the Robert Taylor v. FAA case regarding the drone registration regulations.

Summary of the Reichert v. FAA Argument:

The Little Tucker Act, 28 USC Section 1346, removes sovereign immunity from the FAA and “provides jurisdiction to recover an illegal exaction by government officials when the exaction is based on an asserted statutory power.” Aerolineas Argentinas v. U.S, 77 F.3d 1564, 1573 (Fed. Cir. 1996).

Section 336 told the FAA to not create a regulation governing model aircraft. The FAA did that and the Taylor v. Huerta ruling confirms that the FAA illegally created it.  Thus, all money and information collected pursuant to it were illegally obtained.

Actual Text of Reichert v. FAA Complaint

MICHAEL REICHERT, et al.
Plaintiffs,
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION,

JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT

1. In 2012, Congress directed the Administrator of the Federal Aviation
Administration (“FAA”) not to “promulgate any rule or regulation regarding model aircraft” flown
for recreational or hobby use under the FAA Modernization and Reform Act of 2012. Pub. L. 112-
95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note) (hereafter “FAA
Modernization and Reform Act of 2012”). Contrary to this clear directive, the FAA has been
exacting money and personal data illegally since at least December 21, 2015, from the very
hobbyists Congress expressly exempted from FAA regulatory jurisdiction, by requiring the
registration of model aircraft for recreational or hobbyist purposes. Taylor v. Huerta, 856 F.3d
1089 (D.C. Cir. 2017).

2. Pursuant to the Little Tucker Act, 28 U.S.C. § 1346, Plaintiff Michael Reichert, on
behalf of himself and all members of the proposed Class of all owners of model aircraft who
registered their model aircraft with the FAA, seeks an order requiring the FAA to: (a) refund the
$5 registration fee that each proposed Class member paid; (b) destroy all records collected or
created for each proposed Class member; ( c) remove any reference to each proposed Class
member’s registration and ( d) pay all costs, disbursements and reasonable attorneys’ fees incurred
by the proposed Class in this action per 28 U.S.C. § 2412 or 28 U.S.C. § 1346.

THE PARTIES

3. Plaintiff Michael Reichert is a resident of Pulaski County, Arkansas.

4. Michael P. Huerta is the administrator of the FAA and is the appropriate individual
to sue in his official capacity on behalf of the FAA, which is part of the U.S. Department of
Transportation. The FAA’s address is 800 Independence Avenue SW, Washington, D.C. 20591.

JURISDICTION AND VENUE

5. This Court has original subject-matter jurisdiction over this action because it
involves a federal question under 28 U.S.C. § 1331 and a civil claim of not more than $10,000 per
claimant against the United States founded upon an act of Congress or a regulation of an executive
department under 28 U.S.C. § 1346(a)(2) of the Little Tucker Act.

6. Venue is proper under 28 U.S.C. § 1391 because the FAA is subject to personal
jurisdiction here and regularly conducts business in the Eastern District of Arkansas and because
a substantial part of the claims asserted herein occurred and continue to occur in this district.

FACTUAL ALLEGATIONS

7. In 2012, Congress put an end to the “debate over regulation of unmanned aircraft”
and passed the FAA Modernization and Reform Act of 2012, which “codified the FAA’s
longstanding hands-off approach to the regulation of model aircraft” under § 3 3 6 of the Act, called
the “Special Rule for Model Aircraft.” Taylor, 856 F.3d at 1091.

8. The FAA Modernization and Reform Act of2012 § 336(a) says, “Notwithstanding
any other provision of law relating to the incorporation of unmanned aircraft … the Administrator
of the Federal Aviation Administration may not promulgate any rule or regulation regarding model
aircraft …. “FAA Modernization and Reform Act of 2012.

9. The FAA Modernization and Reform Act of 2012 § 336(c) defines model aircraft
(hereafter “Model Aircraft”) as “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 or recreational purposes.” FAA Modernization and Reform Act of 2012.

10. In direct violation of Congress’s explicit prohibition against such rule-making, the
FAA promulgated rules or regulations December 16, 2015, to require all Model Aircraft hobbyists
to register online their Model Aircraft, pay a $5 registration fee, provide detailed information on
the owner and be subject to criminal jail time up to three years and fines up to $250,000 for not
registering these toys. Registration and Marking Requirements for Small Unmanned Aircraft, 80
Fed. Reg. 78594 (Dec. 16, 2015), which amended Title 14 of the Code of Federal Regulations
(“Registration Rule”).

11. Effective December 21, 2015, the Registration Rule requires “[a]ny small
unmanned aircraft to be used exclusively as [M]odel [A]ircraft that have never been operated” to
be registered with the FAA. Id.

12. Effective February 19, 2016, the Registration Rule requires “[s]mall unmanned
aircraft to be used exclusively as Model Aircraft and have been operated by their owner prior to
December 21, 2015,” to be registered with the FAA. Id.

13. After Plaintiff registered his Model Aircraft, paid a $5 registration fee and provided
the required personal information, the FAA issued him a Small UAS Certificate of Registration on
February 19, 2016.

14. As of December 21, 2016, more than 616,000 members of the proposed Class had
registered their Model Aircrafts with the FAA, paid the FAA a $5 registration fee and provided
personal information to the FAA. www.faa.gov/news/updates/?newsld=87049 (December 21,
2016).

15. On May 19, 2017, the U.S. Appeals Court forthe District of Columbia held, “The
FAA’ s 2015 Registration Rule, which applies to Model Aircraft, directly violates that clear
statutory prohibition . . . [so we] vacate the Registration Rule to the extent it applies to Model
Aircraft.” Taylor, 856 F.3d at 1090.

16. On May 19, 2017, the FAA issued a press release stating it would continue to
regulate Model Aircraft and continue to accept registrations.
https://www.faa.gov/news/press_releases/news_story.cfm?newsld=21674. The FAA stated, “We
continue to encourage registration for all drone operators.” Id.

17. Upon learning of the D.C. Circuit Court’s holding, Plaintiff electronically
communicated a request to the FAA on June 2, 2017, for a refund of his $5 registration fee and for
his name to be removed from the FAA’s databases. Later that day, the FAA through its
[email protected] address emailed the Plaintiff: “We recommend contacting
the FAA directly via [email protected] or by calling 844-FL Y-MY-U A for assistance. You can
also visit https://www.faa.gov/uas/faqs/ for more information.” As directed by the FAA email,
Plaintiff called the FAA that same day and left a message substantially similar to his email request.
As of the filing date, Plaintiff has not received a return call.

18. Despite having its rules against requiring Model Aircraft registration vacated by
Taylor, the FAA’s website as of today’s filing continues to require hobbyists to pay money
(www.faa.gov/uas/faqs/#reg) to register their Model Aircraft weighing more than 0.55 pounds and
to disclose personal information when the owners want to “fly for fun.”
https://www.faa.gov/uas/ getting_ started/.

CLASS ALLEGATIONS

19. Plaintiff brings this action individually and on behalf of all others similarly situated
under the Federal Rules of Civil Procedure, Rule 23. This action satisfies the numerosity,
commonality, typicality and adequacy prerequisites under Rule 23(a). In addition, this action
satisfies the requirements of rule 23(b)(3) and, alternatively, Rule 23(b)(2).

20. The proposed Class is defined as the following:
All owners of Model Aircraft who registered their Model Aircraft
with the FAA

21. Plaintiff reserves the right to modify or amend the definition of the proposed Class
before the Court determines whether certification is appropriate.

22. Proposed Class counsel, any judge who hears this case, and the United States and
its agencies and instrumentalities are excluded from the proposed Class.

23. The members of the proposed Class are so numerous that joinder is impractical.
The proposed Class consists of hundreds of thousands of members, the identity of whom is within
the knowledge of the FAA and can be ascertained by access to FAA records.

24. The claims of the representative Plaintiff are typical of the proposed Class
members’ claims. Each registered his or her Model Aircraft, paid the FAA a $5 registration fee
and disclosed personal information. The FAA’ s misconduct violated federal statutes that
specifically prohibit the agency from making the rules or regulations above, which similarly
damaged the representative Plaintiff and all members of the proposed Class.

25. Furthermore, the factual basis of the FAA requiring hobbyists to register their
Model Aircraft violates § 33 8 of the FAA Modernization and Reform Act of 2012. The FAA’ s
illegal conduct is common to all members of the proposed Class and represents a common thread
of illegal conduct resulting in injury to all members of the proposed Class.

26. There are multiple questions of law and fact common to the proposed Class, and
those common questions predominate over all questions affecting only individual proposed Class
members. Among the questions of law and fact common to the proposed Class are:

a. Whether the FAA’s actions applied generally to the proposed Class under
Rule 23(b )(2) because the FAA imposed the same illegal requirements on each Model Aircraft
owner: a registration fee, disclosure of personal data, and display of an FAA-issued unique
identifier on each Model Aircraft;
b. Whether the Registration Rule violated§ 336 of the FAA Modernization
and Reform Act of2012;
c. Whether the FAA continues to commit wrongdoing through its failure to
comply with§ 336 of the FAA Modernization and Reform Act of2012;
d. Whether restitution of registration fees is an appropriate remedy;
e. The proper method or methods by which to measure damages; and
f The proper injunctive relief

27. Plaintiffs claims are typical of the claims of other proposed Class members in that
they arise out of the same failure on the part of the FAA to comply with federal law, and Plaintiff
and all members of the proposed Class paid the same registration fee, had to disclose personal
information as part of the registration process, and are required to affix a unique identification
number to their Model Aircraft.

28. Plaintiff has suffered the harm alleged and has no interests antagonistic to the
interests of any proposed Class member.

29. Plaintiff is committed to the vigorous prosecution of this action and has retained
competent counsel experienced in the prosecution of class actions. Thus, Plaintiff is an adequate
representative and will fairly and adequately protect the interests of the proposed Class.

30. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy. Because the claim amount for each proposed Class member is
very small relative to the complexity of the litigation and the United States Government has
virtually unlimited financial resources, no proposed Class member could afford to seek legal
redress individually for the claims alleged herein. Therefore, absent a class action, each proposed
Class member will continue to suffer losses, expend needless energy resolving one’s claim and
protecting one’s privacy, and be at the mercy of the FAA’ s misconduct without remedy.

31. Even if each proposed Class member could afford to litigate individually, the court
system could not. Given the complex legal and factual issues involved, individualized litigation
would significantly increase the delay and expense to all parties and to the Court. Individualized
litigation also would create the potential for inconsistent or contradictory rulings. By contrast, a
class action presents far fewer management difficulties, allows claims to be heard which might
otherwise go unheard because of the relative expense of bringing individual lawsuits and provides
the benefits of adjudication, economies of scale and comprehensive supervision by a single court.

32. Alternatively, class certification is appropriate pursuant to Rule 23(b )(2). In acting
as alleged above, and in failing and refusing to cease and desist despite contrary directives from
Congress and rulings by the D.C. Circuit, Defendant has acted on grounds generally applicable to
the entire proposed Class, thereby making final injunctive relief and corresponding declaratory
and equitable relief appropriate with respect to the proposed Class as a whole. The prosecution of
separate actions by individual proposed Class members would create the risk of inconsistent or
varying adjudications with respect to individual proposed Class members that would establish
incompatible standards of conduct. In addition, injunctive relief is necessary to prevent further
unlawful and unfair conduct by Defendant. Money damages, alone, could not afford adequate and
complete relief, and injunctive relief is necessary.to restrain Defendant from continuing to commit
its illegal acts.

CLAIM FOR RELIEF: ILLEGAL EXACTION
(Violation of Little Tucker Act, 28 U.S.C. § 1346)

33. Plaintiff repeats paragraphs 1through32 above.

34. Plaintiff and the proposed Class bring this action under the Little Tucker Act, 28
U.S.C. § 1346, which waives sovereign immunity and “provides jurisdiction to recover an illegal
exaction by government officials when the exaction is based on an asserted statutory power.”
Aerolineas Argentinas. United States, 77F.3d 1564, 1572-74 (Fed. Cir. 1996)(allowing an illegal exaction
claim for excess user fees).

35. Regardless of whether a statute creates an express cause of action, courts have a
history of recognizing such illegal-exaction claims when the government takes money from a
claimant in violation of a statute. Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005).

36. Here, hundreds of thousands of people were forced to pay a registration fee, give
up personal information and suffer other indignities with little, if any, public gain because of aJ.)
overreaching administrator at the FAA who acted in violation of§ 338 of the FAA Modernization
and Reform Act of 2012.

3 7. Plaintiff and members of the proposed Class have sustained damages from the
FAA’ s disregard for Congressional authority forbidding the FAA from regulating hobbyist and
recreational use of Model Aircraft as alleged herein, which continues to also violate privacy rights
and has exacted money from hundreds of thousands of Model Aircraft owners.

3 8. Plaintiff, on behalf of himself and proposed Class members, demands a jury trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and all Class Members, request that
judgment be entered against Defendant and that the Court grant the following relief:

A. An order determining that this action may be maintained as a class action
pursuant to Rule 23(b)(3), or alternatively Rule 23(b)(2), of the Federal Rules of
Civil Procedure, that Plaintiff is a proper class representatives, that Plaintiff’s
attorneys be appointed Class counsel pursuant to Rule 23(g) of the Federal Rules
of Civil Procedure, and that Class notice be promptly issued;
B. Judgment against Defendant for Plaintiffs’ and Class Members’ asserted causes of
action;
C. Appropriate declaratory relief against Defendant;
D. An award of damages to Plaintiff and Class Members and restitution of all monies
collected during the registration process;
E. Preliminary and permanent injunctive relief against Defendant, including but not
limited to destruction of all records collected or created on every Class member
and removal of any reference to each Class member’s registration;
F. An award of reasonable attorney’s fees and other litigation costs reasonably
incurred pursuant to 28 U.S.C. § 2412, 28 U.S.C. § 1346 and any other applicable
law; and
G. Any and all additional relief to which Plaintiff and Class Members may be
entitled.

Complete Guide to Taylor v. FAA (Drone Registration Lawsuit)

 in Drone Lawsuits / Federal Drone Law / Model Aircraft Rules (Part 101)

IMPORTANT NOTE:  On December 12, 2017, the National Defense Authorization Act of 2017 was passed saying, “(d) Restoration Of Rules For Registration And Marking Of Unmanned Aircraft.—The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.”

The registration rules are currently back in force.

Since the regulations that were struck down were restored by Congress, I’m putting a strike through below on all the text since it should NOT be relied upon. It still contains important legal and historical pieces of information.

Summary of the Drone Registration Lawsuit

drone-registration-lawsuitJohn Taylor and some other attorneys (myself being one of them) challenged the FAA. There were three cases initially filed and consolidated. The basic way to understand the issues in all three cases is Section 336 of the FAA Modernization and Reform Act of  2012 which says 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 FAA switching interpretations from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule. (No rule or regulation).
  • The creation of Part 48 was a regulation “regarding model aircraft[;]” thus, it is illegal.
  • The switching interpretations to apply the Special Flight Rules Area around D.C. to model aircraft is an interpretive rule in violation of 336.

To read more drone law cases, go to my Drone Lawsuit/Litigation Database.

Table of Contents

Note: the FAA created a program to get your $5 registration refund and also your data deleted from the registry. 

Why This Drone Registration Lawsuit Was Important

The reason why this case is important is that this is the first real high-level court with a substantive ruling.

This is a federal circuit court – right below the United States Supreme Court.

This was a short unanimous decision with no concurring or dissenting opinions. That is sending a big message to the FAA that this is settled law.

Who Is Affected By This Ruling?

This ruling is only for those flying their aircraft in accord with Section 336. This ruling does NOT apply to commercial or public aircraft.  This means the model aircraft being flown must be:

(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 or recreational purposes.

AND

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Keep in mind that just because you are flying recreationally does NOT mean you are in this protected category. A great example is people flying recreationally but not in accord with a community-based organization’s safety guidelines. These people are really recreational flyers who are operating under Part 107.  See below in the myths and misconceptions area for more info.

Also, the ruling was regarding the application of a NEW regulation towards model aircraft, but the court never ruled on whether the FAA could apply Part 47 (the already created paper based form of registration) to Section 336 model aircraft.

Where Are We Going from Here?

The FAA can choose to ask for a rehearing, but the D.C. Circuit Handbook of Practice says, “[v]ery few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.”

Another option is to file a petition to the United States Supreme Court. Something like 1-2% of the cases appealed to the Supreme Court are granted certiorari to be argued at the U.S. Supreme Court. This means that there is a high chance this is the final stop for this case.

Additionally, this is NOT the only case. There are two other cases out there!

Taylor v. FAA – Part 2

There is a fourth case Taylor filed that was consolidated with Electronic Privacy Information Center‘s challenge. The fourth case can be summed up as Part 101 is a regulation created “regarding model aircraft.” Part 101 was literally a copy-paste of Part 336 which makes it a per se violation.

Why was this 4th lawsuit filed?

The big reason why is the FAA can cause a lot of problems by creating interpretations of the different portions of Part 101 and if challenged in court, they would have a high chance of winning under Chevron deference. 

The FAA could create some interpretation saying a community-based organization must meet such-n-such standards for it to be recognized or they could say within line of sight means no first person view flying but only using your eyeballs.

Based upon the court’s ruling, there is a chance Part 101 will be struck down. The FAA will likely lose a second time.

The Academy of Model Aeronautics Lawsuit

The Academy of Model Aeronautics filed a lawsuit in August 2014 challenging the FAA’s model aircraft interpretation. The case has sat in abeyance but recently, the AMA has indicated they will move forward with the case. I’m not sure why it has just lingered in the D.C. Circuit for 16 months.

How the Court Ruled:

Taylor’s Arguments

Court’s Ruling

The creation of Part 48 was a regulation.“[T]he 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. …. In short, the Registration Rule is a rule regarding model aircraft.”
The FAA switching interpretation from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule.Footnote 1. “Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.”
The interpretation regarding the Special Flight Rules Area around D.C. is an interpretation in violation of 336.“We need not consider that question because Taylor’s challenge is untimely.”

Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.

  • Whether the FAA has jurisdiction to regulate the lower portions of the sky?
  • Whether the interpretation now requiring registration under Part 47 is in violation of 336?
  • Whether the interpretation applying the special flight rules around D.C. apply to model aircraft in violation of 336?
  • Whether the FAA has jurisdiction to register people, not aircraft, under their enabling statutes in Title 49?
  • Whether Part 48, as applied to non-recreational operators, was created in violation of the Administrative Procedures Act?

To see very in-depth discussions on the issues NOT answered, see my articles:

 Here is the audio recording of the oral arguments before the judges.

Questions Left Unanswered

  • Does anyone get their $5 back?
  • What is the FAA going to do with the all the registration data?
  • Can the FAA still regulate model aircraft flyers under Part 47?

John Taylor and I talking about the Case on SUASNEWS:

Who Has Taken What Side In The Drone Registration Case Ruling

Favorable to Drone Registration:

  • AUVSI – “AUVSI is disappointed with the decision today by the U.S. Court of Appeals to reject the FAA’s rule for registering recreational unmanned aircraft systems (UAS). 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. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.” from AUVSI STATEMENT ON U.S. COURT OF APPEALS DECISION ON UAS REGISTRATION
  • Small UAV Coalition – “The viability and growth of the UAS industry is contingent on the safe and responsible integration of UAS technology. This is only possible if all operators – commercial and recreational alike – understand their responsibilities and remain informed of the evolving standards around UAS technology. Today’s ruling generates uncertainty by eliminating a tool developed to maintain accountability and enable streamlined communication between the FAA and recreational UAS operators.The FAA must have appropriate authority to maintain reasonable oversight of UAS operations, including management of a national UAS registry, which is the first step to identifying UAS operating in the national airspace. A lack of reasonable authority will 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. The Small UAV Coalition looks forward to working with lawmakers and regulators to ensure that the FAA has the authority necessary to facilitate the safe, widespread, and expeditious integration of UAS into the national airspace (NAS).” – Press Release on Small UAV Coalition Website
  • Commercial UAV Alliance – The Commercial Drone Alliance is committed to promoting the safety and security of the National Airspace System (NAS). We believe registering drones and having reliable identification of all operators is critically important to holding operators accountable, and enhances the safety of the NAS. The registration requirement also provided much-needed education around the rules for safe hobbyist drone flight. As a policy matter, we believe the lack of a registration requirement could ultimately jeopardize the safety and security of the NAS. The Alliance looks forward to working with Congress to ensure that the FAA has clear authority to require registration of all drones, including hobbyist drones. –Press Release
  • Drone Manufacturer’s Alliance – “DMA is studying the implications of today’s registration-related court ruling, but believes the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large. As we wait for word on whether the FAA will appeal this ruling, we hope all sides see the benefit of a reasonable and minimally restrictive form of basic regulation that has helped make drone operations in America overwhelmingly safe. We look forward to working with policymakers on a long-term legislative solution.” –Press Release
  • Helicopter Association International – “Helicopter Association International (HAI) strongly disagrees with the decision by the U.S. Court of Appeals to halt the registration of drones deemed to be “model aircraft.” Helicopters routinely operate at the same low altitudes as drones, and we in the helicopter industry are deeply concerned about our ability to fly safely in air space where pilots could encounter any unmanned aircraft, be it commercial or otherwise. One valuable component of the FAA’s drone registration program is the opportunity to educate the general population about the hazards of careless drone operation, and we believe that the FAA’s drone registration program serves to protect everyone in the air and on land. HAI strongly urges Congress to allow the FAA to do what the FAA does best; to provide safe and efficient use of our national airspace. We request that the FAA be given the governance and oversight over all forms of aircraft in order to ensure the safety of the National Airspace System.” – Press Release
  • (Ret.) Major General Poss who Founded ASSURE poss-tweet

In favor of the Court’s Ruling:

  • Drone Users Group – A statement that DUG supports the ruling is not needed. DUG has been the only organization that has helped the Taylor case by helping organize a fund to reimburse for court costs. DUG has been with Tayor right from the begining.
  • Academy of Model Aeronautics – “AMA is encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which our members operate. For 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.” – SUAS News

Other Interesting Quotes:

  • Federal Aviation Administration – “We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. 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. We are in the process of considering our options and response to the decision.” from Press Release – FAA Statement Regarding US Court of Appeals Decision
  • Brendan Schulman – ‘“The FAA’s innovative approach to drone registration was very reasonable, and registration provides for accountability and education to drone pilots,’ the company’s VP of Policy & Legal Affairs Brendan Schulman said in a statement offered to TechCrunch.’  ‘I expect the legal issue that impedes this program will be addressed by cooperative work between the industry and policymakers.'”  -Tech Crunch
  • Lisa Ellman – “‘The goal of the registration rule was to assist law enforcement and others to enforce the law against unauthorized drone flights, and to educate hobbyists that a drone is not just a toy and operators need to follow the rules,’ said Lisa Ellman, an attorney and specialist on the drone regulation with the law firm Hogan Lovells. ‘These are worthy goals, so if this ruling stands it wouldn’t surprise us to see a legislative response here.'” – Recode

Myths and Misconceptions Surround this Ruling

 

faa-drone-prosecution-336-model-aircraftMyth 1 – Recreational Drones Are Now Completely Unregulated. 

This is not true. The FAA already regulates recreational flying that does NOT fall into the Section 336 protected bubble -it’s called Part 107.

Section 336 says the FAA cannot create a rule or regulation regarding model aircraft if: …..

“(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization; …….

…….

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft[.]”

The bad actors we see on the news are not flying in accord with community-based organization SAFETY guidelines. (AMA safety code says,  model aircraft cannot be flown in a careless or reckless manner.) This means those recreational flyers do NOT even fall into the Section 336 protected category (big green circle to the left) and would be surprised to learn they fall into Part 107 which requires registration!

 

Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers

What might come as a shock to many, Congress gave the FAA the ability to prosecute Section 336 model aircraft flyers who “endanger the safety of the national airspace system.” (Small green circle inside the red circle to the left).  Section 336(b) says, “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.”

The FAA can regulate and prosecute non-336 recreational flyers and only prosecute model aircraft endangering the safety of the national airspace. The FAA has tools in their toolbox for both scenarios!

Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!

Was registration a tool that could be helpful? Yes. Was the way the FAA did it good? Definitely no.

1. History Repeating Itself. 

The next part sounds like history repeating itself. Let’s go back in time to 1988 where the U.S. Congress passed the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (‘‘DEA Act’’). Because the following text was so good, I just copied-pasted the following text from the FAA’s own Federal Register post from January 2007:

On March 12, 1990, the FAA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (55 FR 9270). The NPRM proposed changes to certain requirements concerning registration of aircraft, certification of pilots, and penalties for registration and certification violations. The NPRM also announced non-rulemaking procedural changes. We intended the changes to correct deficiencies in our systems and procedures identified in the FAA Drug Enforcement Assistance Act of 1988 (Pub. L. 100-690) (hereafter, “the Act”). The Act amended FAA’s authorizing legislation (49 U.S.C. 40101 et seq.) to-

……..

Modify the aircraft registration system to more  effectively serve the needs of buyers and sellers of aircraft, drug  enforcement officials, and other users of the system;

……..

The comment period closed on May 11, 1990. We received 373  comments, very few of which expressed support for the proposed changes. For the most part, commenters believed that the proposed changes would impose burdens only on law-abiding citizens, while criminals would simply circumvent them. As a result, FAA decided to delay the rulemaking process to assess whether specific technological improvements to the FAA Civil Aviation Registry (the Registry) could meet the intent of the Act. We believe we have now fulfilled most requirements of the Act through changes to systems and procedures used by the Registry. For this reason, we have withdrawn the 1990 NPRM in its entirety. Readers interested in the specific actions we have taken to fulfill the requirements of the Act should refer to the notice withdrawing the 1990 NPRM (70 FR 72403, Dec. 5, 2005).

To complete our obligations under the Act, we are proposing to address two deficiencies noted in the Act and not fully addressed through changes made to the Registry. The first issue concerns the proper identification of pilots. Law enforcement agencies must be able to establish the true identity of those who hold pilot certificates.  The second issue concerns the timely reporting of aircraft sales or other transfers of ownership. Law enforcement agencies must be able to determine who is the owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Wow. The FAA admitted they had deficiencies. And what could those be?

2. Aircraft Registration Deficiencies Identified by Congress and the FAA

Congress told us what some of the deficiencies were in the DEA Act in Section 7205:

“[The FAA] shall assure positive and verifiable identification of each person applying for or holding such a certificate and shall address, at a minimum, each of the following deficiencies in and abuses of the existing system:

(1) The use of fictitious names and addresses by applicants for such certificates.

(2) The use of stolen or fraudulent identification in applying for such certificates.

(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.

(4) The use of counterfeit and stolen airman’s certificates by pilots.

(5) The absence of information concerning physical characteristics of holders of such certificates.”

3. Comparison of Registry Deficiencies from the DEA ACT to Part 48

Let’s now compare these 5 points from the DEA ACT to the Part 48 registry as applied to model aircraft.

DEA ACT

Part 48

(1) The use of fictitious names and addresses by applicants for such certificates.Section 48.100(b) asks for name, physical address (unless you can’t receive mail there, then a mailing address also), email address.   THE BIG PROBLEM IS NO ONE CHECKS HOW ACCURATE IT IS! THIS IS ON THE HONOR SYSTEM.
(2) The use of stolen or fraudulent identification in applying for such certificates.Once again, a person could just steal a person’s identity and register the drone. Furthermore, they don’t really need to even steal it. All you need to know is a person’s name, their address, and have a disposable email address.
(3) The use by a person applying for such a certificate of a post office box or ‘mail drop‘ as a return address for the purpose of evading identification of such person’s address.No one checks the address against a government issued ID when registering so how does anyone know where anyone lives?! Furthermore, you don’t have to have a government ID with you when you fly the drone for law enforcement to compare names and addresses.
(4) The use of counterfeit and stolen airman’s certificates by pilots.Part 48 was only registration and not an airmen certificate, but subsection 4 raises a good point about how does anyone know if the registration is stolen or if the registration (sharpied on or taped on) was counterfeit of a legitimate registration!
(5) The absence of information concerning physical characteristics of holders of such certificates.The model aircraft registration only asked for a name, an address that can receive mail, and an email address. Nothing about the person.

In short, Part 48 fails on the points Congress brought up which were designed to make things more secure with the Part 47 paper-based registry.

4. Not All Drones Are Registered

Below I graphed out actual registrations versus the FAA’s projection of hobby model aircraft using data from the FAA’s 2017 Aerospace Forecast and multiple speeches Administrator Huerta gave as archived on the FAA’s website.

part-48-registration-vs-projected-hobby-drones

You can see that there is a gap between what the FAA has estimated and what has actually been registered.

The only way registration makes sense is when it is done at the point of sale, with the seller responsible for reporting, as opposed to this “honor system” which the FAA has been operating under.

The graph above proves what everyone knew, that people would NOT register.

5. Many Reasons Why This Part 48 Registration Would Not Work.

I raised many issues when the registration ARC was first formed. I’m going to list below some of the big problems that I pointed out (all the way back in the fall of 2015) in my article 11 Big Problems with the FAA’s Mandatory Drone Registration.

What happens when the person does NOT want to fly anymore?

So the citizen has to register his drone. The drone registration last for 3 years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

How are you going to identify the aircraft after the incident/crime/accident?

The pieces of a drone sucked into a jet engine are going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched-off serial number going to become illegal?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Mandatory drone registration does not help identify drones being seen by pilots but only if they are captured.

Manned aircraft N-numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “Sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not?

Myth 4 –  This was necessary for security!

Do you know who owns the drones in the gapart-48-registration-vs-projected-hobby-dronesp between estimated and actually registered? I don’t – and neither does the FAA.

There was no point of sale requirement for registration.

Security has the word “secure” in it. How was this system secure?

Part 48 “Security” = A system where citizens voluntarily type in whatever information honestly, without 3rd party verification, and then tape on the registration to their drone.

The FAA should have looked to the DEA Act and Part 47 if they were really interested in security.

 

 

 

Myth 5 – This was necessary for safety!

HOW? A taped-on registration number brought about accountability? Tape can be easily removed, serial numbers scraped, or Sharpie-drawn marks marked over.

The follow-up response is that the registration checkout provided education which increased safety.

 

Myth 6 – Any substantial education that could have been received by those registering is now gone!

This is simply not true because (1) the FAA’s website with all its literature is still up and (2) the information provided in the checkout process was minuscule and legally wrong.

When you go through the registration process it takes you to one page where you have to acknowledge safety guidelines and under penalty of perjury, have to click a box that says, “I have read, understand and intend to follow the safety guidance.”

The Safety Guidance says:

Safety Guidance

My Commentary

I will fly below 400ft.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will fly within visual line of sight.Section 336 lists this.
I will be aware of FAA airspace requirements.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly directly over people.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly over stadiums and sports events.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near emergency response efforts such as  fires.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near aircraft, especially near airports.Just wrong.
I will not fly under the influence.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.

 

part 48 registration

The “safety guidelines” on the certificate of registration do not completely match the safety guidelines in the checkout process!  It was as easy as copy-paste, but the FAA failed to make them match or include all the safety points.

So I do admit that there was education that went on through the registration process but it was (1) minuscule, (2) legally inaccurate, (3) not complete, and (4) not the ONLY way the public could be educated.

Myth 7  – We needed registration to help prosecute the bad actors. 

A reporter I was working on a story with  kindly shared this information with me that he obtained from Les Dorr, the official FAA spokesperson.

Since 2014, the FAA has only prosecuted 48 drone operators. Let that sink in. Only 48.

The FAA does not need any more tools in their toolbox. The FAA has many regulations to nab the bad guys. The FAA’s enforcement philosophy is education rather than enforcement which results in many investigations and cases being dropped. The enforcement philosophy and understaffed legal department are the problems, not the lack of regulations.

If FAA really wanted to crack down on bad actors, they need to ask Congress for more money to beef up their legal department to focus on UAS prosecutions. They also need to change their enforcement philosophy.

This whole thing strikes me as crazy. Many are upset at this ruling but seem to be silent when it comes to commercial drone operators losing business to illegal operators.Law abiding people are losing work right now to illegal operators and the FAA has only 48 prosecutions to show for it? All across this country legal operators are losing work because the FAA fails to prosecute.

On top of this, John Taylor requested information under the Freedom of Information Act “seeking all records of requests by law enforcement authorities or others to identify registrants of specific small unmanned aircraft based on the registration number located on such aircraft.”  Here is the response.

taylor-foia-registation

How this Ruling is a Good Thing

This ruling is very important because it stands for the rule of law. The government we live under is a government of laws, not people.  We are not governed by arbitrary decisions of government officials but by the law. Everyone must follow the law – drone flyers as well as the FAA.

This case set the broken bone that was Part 48. The FAA has the opportunity to regulate lawfully and to now be an example to the unlawful. It is extremely damaging to safety to declare to the unsafe flyers that they must follow the laws created while the FAA is completely ignoring what Congress said in Section 336 and the Administrative Procedures Act. The unsafe flyer will say to himself, “The FAA isn’t following the law, why should I?”

Suggestions for the FAA:

My helping with the case was not to just troll the FAA but to uphold the rule of law. I’m very much for safety. I’m a FAA-certificated flight instructor who drilled into the heads of my students -safety -safety- safety. One of my flight instructors died in a plane wreck. I have a dead man’s signature in my logbook who left a wife and baby behind. I can appreciate the importance of safety.

In light of my love for safety and the rule of law, I provide these suggestions to the FAA to increase safety, lawfully:

  • Create regulations that are compliant with Section 336. If you don’t like Section 336, ask Congress to change, but don’t just ignore it. Everyone should follow the law, right?
    • This most likely means requiring remote ID-related regulations will need to be crafted as to not encompass 336 model aircraft, or you should get Congress to repeal or change 336.
  • There is a second Taylor v. FAA case coming down the pike shortly. I estimate it will be ruled upon in 3-4 months. Based upon my reading of the latest ruling the FAA stands to lose a second time. Additionally, with the Trump 2 for 1 deal that happened, the FAA needs sacrifical regulations to repeal to create pro business drone regulations. I suggest the FAA use Part 101 as a sacrificial regulation to get out the over people regulations. This upholds the rule of law and promotes business!
  • Change your enforcement philosophy against drone operators. The current system is so lenient that very few cases reach prosecution.
  • Leverage the commercial operators out there who would be more than willing to turn in all their illegal competitors. There is an army of people out there willing to give the FAA info, but many have stopped because the FAA does very little.
  • Hold accountable large companies who hire illegal operators. I think there is some possibility here, depending on the facts, to prosecute companies who choose the illegal operators rather than safe operators. Some companies hire illegals as sub-contractors.  If there are any objections, the safe operator loses the job and the company finds a person who is willing to do whatever the company wants. Speak to some of the attorneys in the general counsel’s office. I’m sure some of them will agree that the definition of “operator” and “person” in the regulations is sufficiently broad, under certain facts, to capture large companies.
  • Ask Congress for more funding for legal staff to prosecute drone operators.
  • Maybe create a donation process where people can opt-in easily to donate their $5 from the registration back to the FAA to hire attorneys to prosecute illegal and unsafe drone flyers.

Suggestions for Industry

  • Stop pitting commercial versus recreational. What it should be is safe vs unsafe. People who fall into the 336 category are going to have to be SAFE to be protected; otherwise, they are not in this category and can be required under Part 107 to be registered.
  • Actively working to undue 336 is a waste of political influence. 336 protected flyers are by definition having to fly according to CBO safety guidelines. Commercial industry should focus on getting the FAA to prosecute the illegal and unsafe operators. There are commercial operators right now losing thousands of jobs across the US because the FAA won’t crack down on the illegal operators. Only a total of 48 drone enforcement actions have happened since 2014. Stop focusing on undoing 336 and focus on stopping those that take food off the table of your constituents or buyers of your products!

Suggestions for Flyers:

  • Call your federal congressman and senator and tell them how you are following the law and are losing business to illegal operators. The FAA needs more money to increase their legal man power and they need to change their enforcement philosophy.
  • The organizations you are a member of, ask them what they are doing to help YOU.  Find out if they are actually doing something or cancel your membership and use those funds to help yourself.
  • Report illegal and unsafe flyers to your local FAA flight standards district office. You can find you local one here.

Helpful Graph for Understanding the Overall Situation

taylor-v-faa-drone-registration-lawsuit

Actual Text of the Court’s Opinion with my Emphasis

Below is the opinion of the court. I bolded text below which was interesting.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2017 Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

Consolidated with 16-1008, 16-1011
On Petitions for Review of Orders
of the Federal Aviation Administration
John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

I

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “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 or recreational purposes.” Id. § 336(c).

Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.
Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.1

II

We first consider Taylor’s challenge to the Registration Rule.  Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a).

The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112–95,” the FAA Modernization and Reform Act. Id. at 78,604.

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 Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification –on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630. In short, the Registration Rule is a rule regarding model aircraft.2

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). 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.

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

III

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016 – more than two months after the 60-day deadline had passed.

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufficient to give notice of the contents of the document.” 44 U.S.C. § 1507. Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.
Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.
* * *
The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

So ordered.

Footnotes:

1 Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.