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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