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Drone Registry Repeal a Victory for Permissionless Innovation

Hobbyists freed from shackles of new FAA regulations.

DroneMichael Malorny Westend61/NewscomModel 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."

Photo Credit: Michael Malorny Westend61/Newscom

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  • Rich||

    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.

    *** snorts ***

    And you call yourself a "lawyer"!

  • Libertarian||

    So it's legal to sniff glue?

  • Ron||

    Considering how much infringing the government already does to the 2A's " shall not infringe" Clause, I think they don't really care what their laws say

  • JuanQPublic||

    It's amazing that they would simply ignore that section. Absolutely amazing.

  • Fist of Etiquette||

    ...who just happened to be a lawyer who knew that the FAA was breaking the law.

    The FAA should probably employ lawyers of its own to help guide it to what is lawful for it to do and what is not.

  • sarcasmic||

    I hope that is sarcasm. When government agencies employ lawyers, they are not employed to tell what is lawful or not. Rather they are employed to justify unlawful actions by the agency.

  • m123985||

    They knew full well it wasn't lawful. They also assumed that Chevron doctrine meant they could openly and willfully break the law.

  • Bubba Jones||

    As if congress won't change the law to protect us from terrorists?

  • Citizen X - #6||

    Hey, they gotta keep us safe! Have you ever had someone hijack a drone and crash it into you? Let me tell you, brother, it stings - and the bruises take days to fade. Days!

  • Cynical Asshole||

    Hey, someone could put a bomb in one of those things and blow up a school or something. Why do you libertardians hate children? /sarc

  • Cynical Asshole||

    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.

    Damn, I was almost looking forward to watching them attempt to enforce this bullshit. I suspect the compliance rate would have been a joke. Now what am I going to do with all this popcorn? Anybody know the address of the bureaucrat nitwit who came up with this shit?

  • dantheserene||

    Regulators are like Roombas and the Constitution merely a coffee table to be gotten around.

  • strat||

    i think I just found a new .sig file. What are your license terms?

  • ace_m82||

    "There's always a confused soul that thinks that one man can make a difference. And you have to kill him to convince him otherwise." - Shooter

    I salute you, John A. Taylor!

  • Entelechy||

    In a 1993 Firing Line episode aired on PBS, one of Buckley's interlocutors remarked that the advent of GPS, anbody could fly a model airplane carrying a hand grenade through any open window.

  • m123985||

    Sure. It's been possible for decades. It's much easier now with long range FPV gear commercially available and easy to use. But it hasn't happened. Why? Because it's still much easier and less expensive for a jihadi to carry said hand grenade into a shopping mall, resulting in more casualties and greater fear without the likelihood that Ahmed would stall his plane and crash before it reached its destination.

  • You're Kidding||

    Well, there is that pesky "You're right to swing your arm freely through the air ends where my nose begins" thing is applicable here.

    Having been harassed by a drone flown into my back yard by some unknown entity and, having it follow me around outside wherever I went and, having found out that I could get in trouble for swatting the damn thing with the baseball bat I retrieved, I'm not so sure I couldn't have supported this case of government overreach.

    At least I would have had the aircraft numbers to have tracked the numbskull who thought that was funny down and "explained" why s/he might want to stop pulling stunts like that.

  • m123985||

    You're assuming they had actually labeled the plane with the numbers in the first place. Which would be really stupid if he were going to harass you with it.

    The guys who would follow the law aren't the ones you have to worry about, so as usual, the regulatory burden is born solely by those who were never a threat in the first place.

    And by the way, as someone active in the hobby, I can tell you the compliance rate with labeling aircraft (prior to this decision) was approximately 0 percent.

  • timeconsumer||

    Yup, noncompliant here.

  • jerryg1018||

    My suggestion would be to for the small aircraft manufacturers to band together an be preemptive by hiring lobbyists and lawyers to lobby Congress against giving the FAA the authority to regulate what are essentially toys.
    The FAA is trying to seize a power prohibited by law, the head bureaucrats at the FAA are trying to enlarge their kingdom. Somebody should plant a bug in President Trump's ear that the FAA should be downsized.

  • m123985||

    To be fair, these are "toys" that can, in some cases, climb many thousands of feet and exceed 200mph. But as noted above, the AMA has been very successful in creating a safety based culture for decades, and very few incidents have occurred.

    Frankly, the problems have only arisen since drones became popular, and any dimwit with $200 could buy and fly a quad copter with no training. Fixed wing model aircraft, on the other hand, generally require a significant amount of practice to fly without destroying them in the first 5 minutes by impacting a tree or the ground.

    I think that the "toy" argument will be hard to sell and easily countered by FAA videos of inbred rednecks flying their drones in the landing path of commercial aircraft. The better approach would be to establish AMA's role in the law itself and allow those in the hobby to self-regulate without FAA interference.

  • strat||

    As a butt-in-seat pilot, that may be the best suggestion. There is a legit problem with boneheads who have already flown toys too close to airplanes with people in them while on approach.

    I will be the first to admit that FAA is risk averse to a profound degree, but "accident waiting to happen" is about as good a way to describe this as any.

    People who don't fly generally don't understand just how different things are at altitude. Look at all of the jackasses pointing laser pointers at airplanes. Flash blindness is real, and disorientation on approach is for-real, no-s**t, dangerous. You wouldn't want someone to point a Xenon lamp at you at 60 mph on a highway at night. It's worse at 150+ mph in an airplane while landing.

    The same is true with people who think it's harmless fun to fly a drone near a "real plane."
    Someone will someday misinterpret the existing statutes about damaging air safety equipment that make it a capital offense. I don't think that's a good thing, but I also don't think it's exactly impossible, given the modern reticence to interpret laws in logical ways.

    The military drone operators (I can't use the word "pilot" when they're not sitting in it) are at least as scary as the newbies from the standpoint of coexisting in the National Airspace System.

    One of the hardest things to realize is just how benightedly primitive we have kept the technology base in aviation largely because complexity is a necessary precondition for byzantine failure modes.

  • strat||

    And yes, you did read that right. If you damage or impair a mechanism involved in air navigation or safety, you can get the death penalty in the U.S. That is pretty scary, and the fact that it's kind of a technical thing and Congress was involved, means they almost certainly wrote that sloppily in one way or another. Be warned.

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