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June 07, 2017

Spies in the Skies? D.C. Circuit Invalidates Drone Registration Rule

by Sean Fernandes

In Taylor v. Huerta, the D.C. Circuit invalidated an FAA rule requiring recreational drone owners to register with the FAA, clouding the FAA’s ability to regulate drone usage.

The FAA promulgated the drone registration rule in 2015 to address safety-related incidents involving drones. The plaintiff, a hobbyist required to register under the drone registration rule, directly petitioned the D.C Circuit pursuant to 49 U.S.C. § 46110(a). He argued that the FAA lacked statutory authority to promulgate the drone registration rule because Section 336 of the FAA Modernization and Reform Act of 2012 removed “model aircraft” from the FAA’s regulatory ambit.

The court agreed. Historically, the FAA did not regulate unmanned aircraft operated for recreational purposes, as opposed to those operated for commercial purposes. Congress codified this approach in Section 336 of the FAA Modernization and Reform Act of 2012. Section 336 excludes “model aircraft” from the regulatory ambit of the FAA, defining “model aircraft” as unmanned aircraft that are (1) capable of sustained flight, (2) flown in the visual line of sight of the operator, and (3) flown for recreational purposes. The registration rule expressly applied to “model aircraft” as defined in Section 336. Therefore, the FAA lacked statutory authority to issue the registration rule.

The FAA argued that the drone registration rule merely articulated its intent to exercise enforcement discretion under a different statute that requires the registration of aircraft generally. The court disagreed because the FAA had not previously interpreted the general aircraft registration statute to apply to model aircraft and the drone registration rule’s registration process differed from the process in the general aircraft registration statute.

The FAA also argued that the registration rule advanced its statutory mandate to promote aviation safety and thus was a valid exercise of its authority. While the court noted the rule arguably promoted aviation safety, it still clearly conflicted with Section 336’s restrictions on the FAA’s regulatory scope and was thus invalid.

While the removal of regulatory impediments is a welcome development for drone hobbyists, under Taylor the FAA would still be able to regulate developing drone systems that fall outside the definition of “model aircraft,” such as those flown out of the operator’s line of sight.

Sean Fernandes is an associate at Ellis & Winters LLP in Raleigh, North Carolina.

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Sean Fernandes – June 7, 2017