Drone law experts say challenge to FAA registration rule is likely to succeed
John Taylor, a lawyer in Maryland, sued the agency in the U.S. Court of Appeals for the D.C. Circuit, arguing that the FAA Modernization and Reform Act of 2012 prohibits the Federal Aviation Administration from issuing rules for recreational aircraft.
The FAA did just that on Dec. 14, when it announced that everyone who owned a drone weighing between 0.55 and 55 pounds would have to register in a government database. Each registered drone operator is required to affix a sticker with her corresponding registration number to every drone in her collection.
Registration costs each drone operator $5, although the agency waived that fee until Jan. 20. The deadline for registration is Feb. 19.
“It's kind of difficult for them to say they didn't create a new regulation when in fact they created a new regulation.”
Section 336(a) of the FAA reform law declares that the agency cannot “promulgate any rule or regulation regarding a model aircraft ... if ... the aircraft is flown strictly for hobby or recreational use,” does not interfere with other aircraft, weighs less than 55 pounds, and operates “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”
Drone-law experts who spoke to the Daily Dot concurred with Taylor's contention that the FAA had violated the 2012 reform law.
“Section 336 of the FMRA expressly provides that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft,’” Brant Hadaway, a partner at Diaz, Reus & Targ, LLP, who works on regulatory-compliance cases and writes about drone law, said in an email. “When Congress says that an agency 'may not' do a thing, the agency indeed 'may not' do it.”
The FAA contends that by requiring drone-pilot registration, it is merely applying an existing manned-aircraft regulation to unmanned craft, said Peter Sachs, a Connecticut attorney who founded the Drone Law Journal. But the section of federal aviation regulations that contains the FAA's interim rule “did not exist at all prior to this new registration requirement,” Sachs said.
“It's kind of difficult for them to say they didn't create a new regulation when in fact they created a new regulation,” he added. “It didn't exist; it wasn't on the books.”
Jeffrey Antonelli, the founder of a law firm focusing on unmanned aerial systems, said that the broad language of the 2012 FAA reform law clearly ruled out any new drone regulations, even ones based on existing manned-aircraft rules. “While Section 336(a) does not explicitly state a prohibition against a drone registration system, it does not need to,” he wrote in an email. “Any new regulation is prohibited.”
Federal courts traditionally give agencies significant latitude in interpreting the statutes governing them. The principle of Chevron deference holds that agencies are the experts at understanding these statutes. But Sachs said that the law in this case was so clear that even deference would not save the FAA.
“I'm not certain to what extent the court would be willing to defer to the FAA in this instance,” he said. “It says ‘do not do X,’ and they ... did X.”
Taylor, who said in his lawsuit that he owned "one or more small unmanned hobby aircraft" but did not describe them as drones, claimed that he would "suffer irreparable harm" unless the federal appeals court suspended the FAA rule establishing the database.
“I did this out of desperation,” Taylor told Ars Technica. The database, he said, “creates a burden on hobbyists that Congress did not want to create.”
A spokesman for Rep. John Mica (R-Fla.), who sponsored the 2012 FAA reform law, did not respond to a request for comment.
Correction: The FAA registers drone operators, who are given a unique registration number to affix on all their drones.
Photo via Michael/Flickr (CC BY 2.0) | Remix by Jason Reed