The Case Against the FAA's Drone-Registration Rule Isn't as Straightforward as it Looks
Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in the case of Taylor v. Huerta (PDF). In Taylor, a drone hobbyist (Taylor) asked the D.C. Circuit to overturn the FAA's Registration Rule (PDF). The court agreed with Taylor that the rule violated the FAA Modernization and Reform Act of 2012, and so struck the rule down "to the extent it applies to model aircraft." Though the court opined that "[s]tatutory interpretation does not get much simpler" than in this case, there's something unusual about how it went about that process.
The Drone Registration Rule
Here's how the court describes the drone Registration Rule (citations omitted):
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. 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. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years' imprisonment.
A "model aircraft" is defined in the FAA Modernization and Reform Act as an unmanned aircraft that is
- capable of sustained flight in the atmosphere;
- flown within visual line of sight of the person operating the aircraft; and
- flown for hobby or recreational purposes.
What Was Wrong With the Registration Rule?
The D.C. Circuit explains (citations omitted):
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." The FAA's 2015 Registration Rule is undoubtedly a rule. . . . In addition, the Registration Rule is a rule "regarding a model aircraft." The Registration Rule sets forth requirements for "small unmanned aircraft, including small unmanned aircraft operated as model aircraft." . . .
In short, the 2012 FAA Modernization and Reform Act provides that the FAA "may not promulgate any rule or regulation regarding a model aircraft," yet the FAA's 2015 Registration Rule is a "rule or regulation regarding a model aircraft." Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.
Why It Isn't That Simple
But there's something odd about the court's opinion. I've highlighted it below:
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).
That period is not in the statute. In fact, the statute says that the FAA
may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if--
- the aircraft is flown strictly for hobby or recreational use;
- the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
- the aircraft is limited to not more than 55 pounds . . .;
- the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
- when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower . . . with prior notice of the operation . . . .
The D.C. Circuit doesn't address these five qualifications, or even indicate that it has omitted them from its quotations. More remarkably, the FAA didn't rely on them in its brief, either, as one of the judges on the panel noted during oral argument (mp3). Why not? Beats me. Perhaps the FAA thought the Registration Rule would be practically unenforceable if they exempted drones that satisfied the requirements of 336(a). Or maybe recognizing such an exception would exempt the majority of drones already in use, making the registration requirement pointless.
Whatever the rationale, the FAA decided to argue instead that the Registration Rule did not impose a new requirement at all, but simply changed FAA policy regarding a pre-existing legal obligation to register all aircraft, including model aircraft. Obviously, the court rejected that argument.