Latest posts by Jonathan Rupprecht (see all)
- Complete Guide to Taylor v. FAA (Drone Registration Lawsuit) - May 19, 2017
- Ultimate Guide to Drone Laws (from a Lawyer & Pilot). - May 18, 2017
- South Dakota Drone Laws (2017) - May 16, 2017
Summary of the Drone Registration Lawsuit
John 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.
Table of Contents
- Why This Drone Registration Lawsuit Was Important
- Who Is Affected By This Ruling?
- Where Are We Going from Here?
- How the Court Ruled:
- Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.
- Questions Left Unanswered
- John Taylor and I talking about the Case on SUASNEWS:
- Who Has Taken What Side In The Drone Registration Case Ruling
- Myths and Misconceptions Surround this Ruling
- Myth 1 – Recreational Drones Are Now Completely Unregulated.
- Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers
- Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!
- Myth 4 – This Was Necessary For Security!
- Myth 5 – This Was Necessary For Safety!
- Myth 6 – Any Substantial Education that could have been received by those Registering is Now Gone!
- Myth 7 – We Needed Registration to Help Prosecute the Bad Actors.
- How this Ruling is a Good Thing
- Suggestions for the FAA
- Suggestions for the Industry
- Suggestions for Flyers
- Actual Text of the Court’s Opinion with my Emphasis
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.
- Federal Circuit Court
- EPIC v. FAA II (2016) – Currently being litigated. It has been consolidated with the fourth Taylor case.
- 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.
- Academy of Model Aeronautics v. FAA – This case has been in abeyance.
- 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
- Singer v. City of Newton – Currently being litigated in the federal District Court of Massachusetts
- 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 – Currently being litigated in the Southern Federal District Court of Texas 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.
- National Transportation Safety Board
- The Pirker case that was all over the news was appealed only up to the full National Transportation and Safety Board (NTSB).
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.
(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:
|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:
- Why the FAA’s Drone Registration Requirements Are ILLEGAL
- 11 Big Problems with the FAA’s Mandatory Drone Registration
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
In favor of the Court’s Ruling:
- 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
Myth 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.
|(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.
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 gap 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:
|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.|
|I will not fly near emergency response efforts such as fires.|
|I will not fly near aircraft, especially near airports.||Just wrong.|
|I will not fly under the influence.|
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.
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
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
JOHN A. TAYLOR,
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
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.
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
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.
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.
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.