fhh drone-3FAA Violated Clear Language of the Law

The United States Court of Appeals for the D.C. Circuit last week, in Taylor v. Huerta, determined that the FAA’s registration rule cannot apply to small unmanned aircraft (aka, sUAVs, or drones) operated for recreational purposes.

Drones operated for recreational purposes, which FAA terms “model aircraft”, are defined by the FAA Modernization and Reform Act of 2012 (the “Act”) as “unmanned aircraft that [are] – (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”

As we’ve reported, the registration rule, adopted by the FAA in 2015, requires that owners of model aircraft register with the FAA, and imposes civil and criminal penalties (including prison time) for those model aircraft owners who don’t comply.

John Taylor, a model aircraft hobbyist in the D.C. area, challenged the registration requirement (as well as an Advisory Circular, discussed below) on the basis that the FAA lacked the authority to issue the rule. Much to his delight, and likely the Court’s, this was one of the simplest cases of statutory interpretation the Court has ever seen. In a few short paragraphs, the D.C. Circuit determined that adoption of the rule was in violation of Section 336 of the Act, which directly prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.”

Taylor’s Advisory Circular challenge was less successful. Advisory Circular 91-57A, which the FAA revised in 2015, provides that model aircraft can’t fly within the Flight Restricted Zone covering Washington, D.C. and the surrounding areas without specific authorization. For those living in the D.C. area, these flight restrictions really limit the fun, forcing sUAV pilots to drive far out of the city to find lawful airspace. Taylor argued, among other things, that the Circular violates Section 336(a) of the Act because it, too, is a rule regarding model aircraft. Unfortunately, Taylor missed the bus (or should we say aircraft) on this one. The Court did not even reach the merits of the claim, instead throwing it out as untimely. (A person seeking to challenge an FAA order must do so within 60 days of the order’s issuance. Taylor, however, didn’t file until more than two-months after the 60-day deadline had passed.)

So, to all the amateur model aircraft operators out there, fly on. But if you’re local to us in the D.C. area, just be careful where you do it.