Drone Registry Repeal a Victory for Permissionless Innovation
Hobbyists freed from shackles of new FAA regulations.
Model aircraft enthusiasts and small-scale drone hobbyists enjoyed a major victory last week when a federal court struck down the Federal Aviation Administration's (FAA) controversial non-commercial small drone registration mandate. On May 19, the D.C. Circuit Court of Appeals invalidated the FAA's requirement that recreational operators of "small Unmanned Aircraft Systems," or UASs, weighing between 0.55 and 55 lbs. must register their crafts with the agency or risk fines and even jail time.
The registry is nullified—at least for now—and sUAS buffs are once again free to zip around the troposphere without getting a go-ahead from the FAA first. Incredibly, this big win for permissionless innovation and tinkerers across America comes to us thanks to a single dedicated model aircraft enthusiast named John A. Taylor who just happened to be a lawyer who knew that the FAA was breaking the law.
The FAA rules, first promulgated in December of 2015, came as a major surprise to the many hopeful small drone sellers for that year's Christmas season. Suddenly, tiny toys not much different from the remote-control helicopters that were a gift staple in holidays past would be considered UASs under the express oversight of the nation's aviation authority. In fact, in the eyes of former Transportation Secretary Anthony Foxx, little Timmy with his new drone would be considered an "aviator" and "with that title comes a great deal of responsibility." Small drone buyers would need to first pay to register the gadget with an FAA website and mark it with the assigned identification number before allowing their child to enjoy their coveted new toy.
But another group took particular umbrage with the new rules: model aircraft enthusiasts, who had previously been exempt from this kind of regulation. It's not hard to sympathize with their plight. These small and responsible of DIYers had been safely flying their crafts with no issue long before "drones" were a household name. For decades, model aircraft activity had a de facto deregulatory assurance because the recreational community adequately policed its own. Specifically, the Academy of Model Aeronautics (AMA) maintained its own voluntary registration system and enforced community-based safety standards that obviated the need for (and likely exceeded the potential outcomes of) government-driven regulations. Indeed, since 1981, the FAA itself encouraged this kind of voluntary arrangement by merely offering guidelines that the model aircraft community could follow.
In a nod to the effectiveness of this self-policing arrangement, Congress passed the FAA Modernization and Reform Act of 2012, which explicitly carved out a space for the model aircraft community to continue to tinker without the FAA breathing down their necks. Section 336 of the Act clearly states that the FAA may not "promulgate any rule or regulation regarding a model aircraft." It's hard to get more clear-cut than that. But the FAA nevertheless ignored Congress and proceeded with its half-baked drone registration program despite the major logistical and legal issues involved.
This is where Taylor and his one-man crusade against FAA wrongdoing comes in. Taylor is a model plane hobbyist and insurance lawyer who lives in the Washington, D.C., area. Like others in his community, he was distressed by the FAA's sudden about-turn on model aircraft. Says Taylor: "I wanted to be able to fly my drone and I didn't want to have to register. It pissed me off on a very sort of visceral level." But unlike many of his comrades-in-flight, he had a law background that helped him prepare a solid legal case against FAA malfeasance. In his petition to the D.C. Circuit Court of Appeals, Taylor challenged both the legality of the registration requirement broadly as well as new flight restrictions that the FAA imposed on the area in its Advisory Circular 91-57A.
Taylor argued that the FAA's new rule that model aircraft operators pay to register their crafts with the agency or face fines or jail time was, indeed, a rule. The FAA countered by essentially arguing that while it didn't enforce its authority against recreational model aircraft operators in the past, it could have if it wanted to. The court agreed with Taylor, finding the FAA's argument that it was allowed to make that rule anyway "unpersuasive." (Unfortunately for amateur model aircraft operators in the D.C. area, Taylor's second argument against the flight restrictions was thrown out for missing the 60-day challenge deadline.)
And as the Drone Law blog points out, the case provides an interesting exception to the common judicial practice of deferring to an administrative body's interpretation of congressional statute, known as "Chevron deference."
But model aircraft operators and small drone tinkerers may not be out of the woods yet. The FAA seems dead set in its convictions that small crafts present a clear and present danger to the airspace, and very few regulatory agencies like being told that some slightly-related activity is simply off limits for control. As the new congressional FAA reauthorization bill looms on the horizon, it is possible that the FAA will take this opportunity to either persuade lawmakers to change the law to their liking, or seize on new ambiguities to attempt to exert their authority once more.
Even without a change to the law, sUAS operators whose crafts do not clearly meet the definition of a "model aircraft" might still be required to register, at least in the eyes of the FAA. As of this writing, the FAA registration website is still operational, and does not provide much new information about how the decision will affect its internal policies.
Still, Taylor's larger victory over the outrageous small recreational drone registry is comfort enough to the many small craft hobbyists who now enjoy a little bit more freedom in their own pursuits. And the challenge to regulatory overreach is noteworthy in its own right. As Taylor told Andrew Zaleski of Technical.ly, "The FAA now realizes they can't run roughshod over the hobby or people will challenge them. I believe that, in itself, is a significant victory."
