Legal Corner: Drone Update – Model Aircraft Exempt from Registration

by Christina Estes-Werther, League General Counsel

In December 2015, the Federal Aviation Administration (FAA) implemented registration requirements for model aircraft. The United States Court of Appeals for the District of Columbia recently opined that the FAA’s actions relating to model aircraft was unlawful and vacated the registration requirements.

FAA Registration Rule for Model Aircraft

The FAA Modernization and Reform Act of 2012 (Act), classifies a model aircraft as an unmanned aircraft system (UAS) and defines model aircraft as an “unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown for hobby or recreational purposes.” PL 112-95, § 336(c), February 14, 2012, 126 Stat 11. A model aircraft is a type of drone that is not used for a commercial purpose.

The Act specified that the FAA is prohibited from regulating model aircraft if the aircraft:

• Is for recreational or hobby use, meaning that the a person cannot use the drone for the person’s occupation or any business purposes;
• Adheres to a community-based set of safety guidelines that are within the programming of a nationwide community-based organization;
• Does not interfere or approach manned aircraft operations;
• Does not fly within 5 miles of an airport unless the operator provides notice to the airport and air traffic control tower before flying; and
• Weighs less than 55 lbs., including fuel or load.

Despite the Act’s prohibition, on December 14, 2015, the FAA announced registration requirements for small model aircraft (Registration Rule). Any aircraft weighing more than 0.55 lbs. (250 g) and less than 55 pounds (25kg), and operated by an individual for recreational purposes is required to register with the FAA. The Registration Rule requires users to use the online system, pay a five dollar fee, and place a unique FAA identifier number on the model aircraft. If a model aircraft owner fails to register, the owner is subject to civil and criminal penalties, including up to three years of imprisonment.

D.C. Circuit Court of Appeals Vacates Model Aircraft Registration Rule Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017)

John Taylor, a model aircraft hobbyist, filed a lawsuit challenging the FAA Registration Rule. Mr. Taylor argued that the Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft” if the statutory conditions are met. PL 112-95, § 336(a), February 14, 2012, 126 Stat 11. The FAA argued that they were granted authority to regulate under pre-existing statutes that allow regulation of all types of aircraft. However, the Court disagreed and determined that the FAA had never applied this authority to model aircrafts finding that the Registration Rule is a new rule outside the parameters of the general aircraft regulations. Second, the FAA argued that the Registration Rule was necessary for safety reasons and although the Court acknowledged the FAA may have a legitimate policy reason for the rule, it found that this objective cannot override the clear text of the Act. The Court found that the language of the Act clearly prohibits any regulation of model aircraft if certain conditions are met and the Registration Rule runs afoul of the law.

Mr. Taylor also challenged the Advisory Circular issued by the FAA, which prohibits the operation of model aircraft in certain areas around Washington, D.C. See Advisory Circular, AC No. 91-57A, Model Aircraft Operating Standings – Including Change 1 (Jan. 11, 2016). He alleged that the circular violates the Act because it is also a rule regulating model aircraft. Mr. Taylor’s challenge was found to be untimely since he was required to file his objection within 60 days of the FAA’s publication in the Federal Register and he filed almost two months after the deadline. Although Mr. Taylor attempted to provide reasonable grounds for this delay by asserting that the notice was not adequate and the circular was confusing, the Court held that the FAA had followed the proper posting requirements in the Federal Register and the notice clearly stated the circular was advising that model aircraft were subject to flight restrictions in Washington, D.C. The Court denied his petition to review the Advisory Circular due to his untimely filing.

If the Court had addressed his challenge against the Advisory Circular, the Court may have been persuaded to uphold the flight restriction since the Act does not limit the FAA from enforcement action against person operating model aircraft who endangers the safety of the national airspace system. PL 112-95, § 336(b), February 14, 2012, 126 Stat 11.

Model Aircrafts in Arizona

The FAA has previously issued a Fact Sheet that the FAA’s regulation of air space does not preempt a local authority’s use of police powers when addressing drone regulation, including land use, zoning, privacy, trespass, and other law enforcement operations. The Court’s decision in Taylor v. Huerta affects the FAA’s Registration Rule and does not impact A.R.S. § 13-3729, which makes it unlawful for a person to operate a model aircraft if the operation is prohibited by federal law or FAA regulations. Since Arizona defers to the federal government’s regulation in this manner, the Court’s decision regarding registration does not impact the state.

Although A.R.S. § 13-3729 prohibits a city or town from adopting ordinances or rules for the operation of drones (other than municipally-owned drones), a city or town is able to regulate the takeoff or landing of a model aircraft in a park or preserve owned by the city or town if there is a designated location within the city or town that is available for model aircraft operation, or the city or town only has one park or preserve that is within its boundaries. The Court’s decision does not address this issue and therefore, does not affect the local model aircraft requirements in the state. According to the National League of Cities, the FAA has stated that states have traditionally been able to regulate the takeoffs and landings of aircraft within their state boundaries. See Operation and Certification of Small Unmanned Aircraft Systems (RIN 2120-AJ60) Federal Aviation Administration, p. 524.

Future Plans for Model Aircraft Regulation

Although model aircraft hobbyists and enthusiast groups are pleased with the court’s decision, it may be a short-lived victory. The Court did not dispute the FAA’s concern about aviation safety and suggested the FAA seek congressional action in order to regulate model aircraft. Legislation was introduced last month to further regulate these types of UAS (See Drone Federalism Act of 2017 – S.B. 1272). The FAA may also consider adding registration requirements in the FAA’s reauthorization bill that will likely be introduced this year since the FAA’s current authorization expires in 2017. Additionally, the FAA may seek an en banc review of the case. Following the court ruling, the FAA issued a press release that states it is reviewing its options and encourages continued registration.

Depending on the FAA’s future actions, it is unclear if the FAA will refund the registration fee to those who paid under the Registration Rule. As of December 2016, 616,000 owners had registered with the FAA.

Although model aircrafts no longer have to be registered at the federal level, regulations for other types of UAS are still effective, including commercial drone regulations. The more significant impact to local governments is that the Taylor v. Huerta case may lead to additional legislative efforts to regulate model aircraft and other UAS, including preemption of state and local authority. For now, states and local governments may proceed with limited regulation of model aircraft under Arizona law and through its police powers. For more information about the case and local governments’ authority to regulate drones, please see the following resources.

Resources

Complete Guide to Taylor v. FAA (Drone Registration Lawsuit) – Rupprecht Law, P.A. https://jrupprechtlaw.com/drone-registration-lawsuit

Cities and Drones: What Cities Need to Know About Unmanned Aerial Vehicles (UAVs) (2016) http://www.nlc.org/sites/default/files/2016-12/NLC%20Drone%20Report.pdf