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Drone Registration: A Question of Policy vs. Process

I often find myself in debates with smart people – people I like – who don’t understand the distinction between the merits of a particular government policy and the question of whether the government has the power to enact that policy.  To pick a recent example, you may think that preventing hunters from killing bear cubs in Alaska is a great idea.  Whether the government – especially, the Executive Branch, acting without statutory authority – has the power to enact such a ban is a question that many would regard as beside the point.  Those who question the Executive’s power to protect bear cubs obviously hate bear cubs.

Based on the tenor of articles like this one in today’s Washington Post, the FAA’s drone registration rule is the Alaskan bear cub of the moment.  Stakeholders are livid at John Taylor for having the temerity to question authority.  A spokesman for AUVSI (an organization in which I have been a member), seems rather beside himself:

Why do we have restrictions? Because we don’t want a drone ingested into an aircraft engine,” said Brian Wynne, a licensed pilot and president of the Association for Unmanned Vehicle Systems International, a leading industry group based in Arlington, Va.

Wynne said putting registration numbers on all aircraft should be seen as a basic safety requirement. But that was part of what was overturned by Taylor’s challenge.

“We have to have rules,” Wynne said.

I feel Mr. Wynne’s pain.  Really, I do.  Stakeholders who have invested so much in their drone businesses no doubt feel put upon by a regulatory regime that imposes high barriers to entry on them, while imposing very few restrictions on those who engage in the very same activity for personal pleasure.  A drone registration requirement for all seems only fair.

But, as Mr. Wynne said, “We have to have rules.” And first among those rules must be the rule of law.  Congress expressly prohibited the FAA from regulating model aircraft.  The FAA’s drone registration rule violated that unambiguous prohibition.

John Taylor was just the boy who pointed out the emperor’s lack of clothing.

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D.C. Circuit Court Strikes Down Registration Rule for Non-Commercial Drones

We have previously expressed our skepticism of the FAA’s authority to require non-commercial drone operators to register their drones.  While the FAA’s registration requirement may have been well-intended, good intentions don’t overcome a clear statutory prohibition like FMRA Section 336, which expressly provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft…

That the FAA went ahead and did so anyway got under the skin of a lot of people, and rightfully so.  Perhaps the FAA didn’t count on the fact that at least one of those people had a license to practice law:

In a stunning David versus Goliath case, John A. Taylor, a model aircraft enthusiast and insurance lawyer, beat the Federal Aviation Administration and Department of Justice in a case challenging the legality of a December 2015 FAA rule requiring model aircraft to register like manned aircraft. The Court of Appeals for the District of Columbia ruled that the FAA’s registration rule, as it applies to model aircraft, “directly violates [a] clear statutory prohibition.”

The court specifically noted that Section 336 “codified the FAA’s long-standing hands-off approach to the regulation of 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.

The FAA raised two arguments.  First, the FAA argued that the registration requirement applied to all aircraft and pre-dated the FMRA.  In other words, it was pre-existing requirement.  This was belied by the FAA’s own history of making an exception for model aircraft.  The rule was a new regulation, and therefore prohibited by Section 336.

Second, the FAA contended that the rule was consistent with the FMRA’s purpose to “improve aviation safety.”  But that would be inconsistent with the text of the statute.  Congress, the court noted, is always free to amend the statute.

In a normal world, results like this wouldn’t be stunning.  Challenging the government on a rule that clearly exceeds its statutory authority should be more like shooting fish in a barrel.  But this is the world we have as a result of a judicial doctrine known as Chevron deference – i.e., that a court will generally defer to an agency’s interpretations of statutes, as long as there is a reasonable basis for that interpretation.  This has led to unfortunately consequences, and we may be witnessing the beginning of the end of the Chevron doctrine.

But let’s not take anything away from John A. Taylor’s achievement.  This was a great win, for himself, for the drone community, and for individual liberty.

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Part 107 is finally out!

I always seem to be in a remote location with limited access to the internet whenever important news breaks.  Of course, today’s release of Part 107 was expected.  It was also expected that there would be few surprises, but there are some things that are worth noting:

While the altitude restriction is 400 ft AGL as opposed to 500 ft, you can fly higher if you are within 400 feet of a taller structure.  This makes sense when considering the number of drones that will be used for things like cellphone tower inspections.

The FAA will create a portal to apply for waivers of restrictions.

The FAA is creating a new certification, called “Remote Pilot Airman” certificate.  The good news is that the operator does not need to have the certificate as long as he is operating under the direct supervision of someone who does.  We are waiting to see what the aeronautical knowledge test will consist of.

While the FAA concedes that it does not regulate privacy issues, it intends to come out with some “best practices” on privacy.  It remains to be seen what those will be.

Of course, once the rule goes into effect, a Section 333 exemption will no longer be necessary to comply with what the FAA says is required to operate commercially.

For regular updates and commentary, on Part 107 and on other matters, follow us on Twitter at @dronelawdotcom.

 

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Is Gun Drone Teen’s Challenge to FAA Subpoena Legally Sound?

Jason Koebler has another useful and informative story on a current development in the area of drone law.  This one concerns the “gun drone” teenager, Austin Haughwout, and he and his family’s challenge to an FAA subpoena demanding, among other things, “photographs and video, receipts for the flamethrower, YouTube audience, advertising, and monetization information. . . .”

The FAA is petitioning a federal judge to enforce its subpoena, which included a subpoena for depositions in New Haven.  The Haughwout’s opening brief in response (which cites this blog in a footnote) raises two arguments: (1) the FAA exceeded its regulatory authority by defining drones as “aircraft”; and, or alternatively, (2) the subpoena is unconstitutional as applied under the Commerce Clause of Article I.

For reasons that we discussed in this post and this post in the wake of the decision of the NTSB administrative appeals court in Pirker, this looks like a steep hill to climb.  Taking the second argument first, the Supreme Court practically slammed the door shut on limits to the Commerce Clause in Gonzalez v. Raich.  As we said here, the real question these days is, where does the Commerce Clause not extend?

Or, perhaps it would be more appropriate to ask, will the courts ever meaningfully limit the reach of the Commerce Clause? The Court did draw a line in National Federation of Independent Business v. Sebelius, but it was essentially rendered meaningless by the Court’s more memorable, alternative ruling that the Obamacare mandate could be construed as a tax.

Thus, unfortunately, the trend has been against the Haughwouts and, in any event, a court will decline to rule on a Constitutional question that can be resolved by statutory interpretation.  It would therefore take a judge of extraordinary courage to tell the FAA that is has overstepped its Constitutional bounds.

This brings us to the first question raised in the Haughwouts’ brief: Has the FAA overstepped its statutory authority by defining drones as “aircraft”?  The argument centers on the FAA’s interpretation of its “organic statute” at 49 U.S.C. §40101, and whether the FAA has overreached by defining drones as “aircraft”.  It also relies on a critique of the NTSB decision in Pirker II as having been wrongly decided.

This isn’t a bad question to raise.  Since the Pirker case settled, the question never went before an Article III court, and therefore remains unresolved.  Given that the question is to be argued at a hearing on July 6, I will not comment on the merits of this argument.

Surprisingly, we can find no discussion of FMRA Section 336, which bars the FAA from promulgating any regulation regarding model aircraft, the only exception being that nothing in Section 336 “shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

We’re sure that the Haughwouts’ attorneys had good reasons for omitting any discussion of Section 336, but it’s certainly something that we would have considered raising.  The statute clearly evidences an intent by Congress to limit the FAA’s enforcement authority to threats to the NAS.  A battery-powered drone, being operated just above ground in a privately-owned forest, does not seem like a threat to the NAS, gun or no gun, flamethrower or no flamethrower.

Mr. Koebler correctly thinks that this might be the most important drone law case currently pending.

The story is also covered here by Ars Technica.

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Who Is Being Fined By the FAA?

Jason Koebler of Motherboard made good use of FOIA and put together some useful information in a series of articles that are worth reading in detail:

Here, he reports on a list of every drone pilot that has ever been fined by the FAA:

The documents the FAA sent me show that the fine for flying a drone recklessly vary wildly: Some hobbyists have settled with the FAA for as little as $400, while others, such as the man who crashed his drone on the White House lawn, have paid as much as $5,500.

More commonly, the FAA fines people between $1,100 and $2,200 and, if it receives pushback, offers to settle for much less. Commercial operators have been fined as much as $1.9 million.

Among the interesting facts he reports is that the vast majority of fines are coming from the FAA’s Eastern Regional office.  What is it about the East Coast that makes it special? Tall buildings? More media attention?

I don’t want to detract from the excellent work, here, so go and read the whole thing.

Another article reports on the only licensed manned aircraft pilot in America who has had his license suspended (not revoked – the headline editor apparently doesn’t know the difference) for flying a drone.  Incredible.

The third article notes that the FAA has yet to fine anyone for flying commercially.  This may seem surprising, but it’s really not.  Koebler asked a former FAA counsel:

Loretta Alkalay, who was in charge of the FAA’s legal operations for the eastern region for more than 20 years, told me that the documents I showed her suggest the FAA doesn’t think it has legal standing to win a case that doesn’t involve reckless flight.

“I think it’s pretty obvious the FAA doesn’t think it can win a case on this whole commercial issue, which is why they haven’t really pushed it,” Alkalay told me.

That is probably why the FAA seems to treat FAR 91.13 as a catch-all for seeking fines against drone operators, but only sends cease and desist and educational letters to persons who are operating commercially without a Section 333.

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