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 unfortunate 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.

BREAKING: PIRKER CASE SETTLES

The Raphael Pirker case has settled.  Not terribly surprising, given the appellate ruling.  Pirker had little incentive to continue defending the case.  He agreed to a reduced fine of $1,100, with no admission of wrongdoing.

The FAA might be feeling like the more fortunate party in this transaction:

In a letter Pirker shared with me, a judge with the National Transportation Safety Board asked the agency why, essentially, it was putting a foreign national through the ringer for a relatively minor (and legally unclear) infraction. The FAA is allowed to take legal enforcement action against foreign nationals in three circumstances: The person has an FAA airman’s certificate; the person commits a violation as a passenger; or the person runs a “foreign repair station.” Otherwise, the FAA is supposed to refer the case to the person’s home country, in this case, Switzerland. The FAA didn’t do that.

Pirker “does not fall within the three circumstances that provide for taking of legal enforcement action … it is determined that this issue is best addressed, and appropriately resolved, prior to commencing a hearing,” the judge wrote.

[Pirker’s attorney Brendan] Schulman said that’s another reason why the FAA should be happy to put this behind them.

The allegedly offending video can be viewed, here:

Thus ends a very interesting regulatory dispute.  It won’t be the last.

Amazon Throws Down a Gauntlet to the FAA

Prime in the air

The Wall Street Journal reports (behind the pay wall) that Amazon is losing patience with the FAA, and has threatened to move more of its operations abroad if it doesn’t receive permission to test-fly in the U.S., soon.

“Without the ability to test outdoors in the United States soon, we will have no choice but to divert even more of our [drone] research and development resources abroad,” Paul Misener, Amazon’s vice president of global public policy, said in a letter to the FAA Sunday reviewed by The Wall Street Journal.

Amazon petitioned the FAA in July to allow it to go forward with testing its drone delivery system, on privately owned land under highly controlled conditions.  The FAA came back in October, asking Amazon why it didn’t seek an experimental aircraft certificate.  Amazon’s sensibly responded that an experimental certificate wouldn’t give it the flexibility it needed.

Translation (we think): An experimental certificate would require Amazon to jump through too many hoops every time it makes design changes. And Amazon needs to have the option of making design changes on the fly.

But this is just mind-blowing:

The FAA also asked Amazon why its delivery drones are in the public interest[!] Mr. Misener responded that they would help deliver packages faster and make the overall transportation system safer and more efficient. “I fear the FAA may be questioning the fundamental benefits of keeping [unmanned-aircraft] technology innovation in the United States,” he wrote.

No kidding.  The government might as well ask why the internet is in the public interest, or why roads and bridges are in the public interest.

This particular colloquy, we fear, suggests that the problem might be worse than we had ever imagined.

The Meaning of Yesterday’s NTSB Ruling

All Is Not Lost

Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.

We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.

First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:

defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:

so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”

… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.

Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.

But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.

In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.

Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:

Nothing in this section 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.

FMRA, Sec. 336(b) (emphasis added).

Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.

Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.

What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.

It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.

——
* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.

Hogan Lovells Launches UAS Group

Global law firm Hogan Lovells has announced the formation of its UAS group.

“Companies around the world are considering, with great interest, the numerous possibilities that unmanned aircraft systems create,” said Hogan Lovells UAS Group chair E. Tazewell “Ted” Ellett. “This sophisticated technology opens up many business opportunities for our clients. Our Aviation practice has been assisting UAS clients for years. Now, by creating this dedicated UAS Group comprised of firm lawyers who are specialists in the many disciplines and industries of interest to our UAS clients, we are able to provide comprehensive UAS-related legal services on a global scale.”

A link to their UAS practice page can be found here.

Dumb, Dumb-Dumb Dumb!

Does anyone remember the old “Dragnet” theme? Put that tune to the words, “Dumb, dumb-dumb dumb,” and you’ll have some idea of our reaction to this story:

A New Jersey man was arrested after police say he shot down a neighbor’s remote control drone.

According to investigators, officers with the Lower Township Police Department were called to a home in the 1000 block of Seashore Road on September 26th to investigate the report by a resident that his remote control helicopter (drone) was shot down.

The suspect – a neighbor – was booked on charges of Possession of a Weapon for an Unlawful Purpose and Criminal Mischief, and his shotgun was seized by police.

We have seen a number of people, in various discussion threads, say that if a drone ever flew near their property they would shoot it down. We have sought to discourage such thinking. There is practically no good reason to discharge a firearm in a populated area, unless you are being attacked and threatened with impending death or great bodily harm (and the law on this varies by state – some require that you first exhaust all means of safe retreat before using deadly force).

A civilian drone is not a threat to your life or safety. It might be annoying. It might be regarded as an intrusion on your privacy (but not really – see here). But unless you’re in the crosshairs of a military drone in some godforsaken battlefield (and chances are that, if you do end up in such a situation, you are unlikely to know what’s coming until it’s too late), there is never a reason to shoot at one. At best, you might be sued for destroying someone’s private property.

But the more likely outcome is a story like the one above.

UPDATE: David Michael Butts at the UAV Legal News discussion group on Facebook makes an excellent observation: If the FAA insists on calling small drones “aircraft,” why didn’t this man just commit a federal crime?

Facebook rolls out its high-altitude drones project

facebook-connectivity1

Facebook is rolling out plans to deploy high-altitude drones that would allow off-grid connectivity for users of its network. In addition to challenges in design, materials and technology, these drones will take us into some uncharted legal territory:

In order to fly its drones for months or years at a time, as it would have to do in order to provide consistent connectivity, Maguire explained, Facebook’s drones will have to fly “above weather, above all airspace,” which is anywhere from 60,000 to 90,000 feet in the air. That puts these drones on tricky regulatory footing, since there are essentially no regulations on aircraft that fly above 60,000 feet in the air. “All the rules exist for satellites, and we’re invested in those. They play a very useful role, but we also have to help pave new ground,” Maguire said.

Facebook and its counterparts will also have to find a way around regulations dictating that there must be one human operator to every drone, which could drastically limit the potential of such an innovation to scale. For proof, Maguire pointed to a recent solar drone demonstration by a British company, which ended after two weeks to give the pilots a break. “It’s like playing a videogame for two weeks straight with no rest,” he said. “We need a regulatory environment that will be open to one pilot perhaps managing 10 or 100 drones. We have to figure these things out.”

Other than the occasional spy plane or research balloon, what other traffic is at that kind of altitude?

More drone law-blogging at the WaPo

Michael Berry and Nabiha Sayed have a new guest post on developments in drone law at The Volokh Conspiracy blog. Today, they provide a pretty solid overview of the FAA’s slow start at promulgating UAS regulations. Recommended reading for anyone who might be new to the topic.

They promise to review the various lawsuits that have been filed, tomorrow.

An alternative approach to small drone regulations?

Writing at Aviation Today, authors Henry Perritt, Jr. and Eliot O. Sprague make some interesting suggestions for a more practical, alternative approach to FAA regulations for small, line of sight drones (what they call “microdrones”): Treat them as a consumer product, like a cell phone or lawn mower.

They begin with a stunning admission from the FAA:

In May 2014, Jim Williams, head of the FAA’s Unmanned Aircraft Systems (UAS) office, told the Small Unmanned Systems Business Expo that general regulations for microdrones would not be promulgated until after 2020. Congress, in the 2012 FAA Modernization and Reform Act, mandated that such regulations be effective no later than 2015. This much of a delay beyond the congressionally mandated deadline invites a lawsuit telling the FAA to move forward quickly.

The reason it will take so long is that the FAA assumes that it will begin with existing regulations for manned aircraft and adapt them line by line, to the peculiarities of microdrones.

Instead, the authors argue,

the agency should take advantage of the capabilities of microdrone technology to enforce certain limits on flight profiles autonomously. Such an approach would focus FAA energy on defining what limits should be built into drones commercially marketed, relieving it of detailed regulation of airmen and detailed flight rules to be enforced in the conventional way.

Taking a cue from the FCC’s regulation of cell phones, the authors suggest that the FAA require that microdrones have certain limitations and capabilities built into their hardware and software. For example:

The most basic rules to be encoded into microdrones are already agreed on. First, a height limit is necessary to keep microdrones away from the airspace in which manned craft fly most of the time. Under the proposed approach, legal microdrones must have a navigational mechanism – a combination of barometric pressure sensors and GPS navigational systems – that would not permit them to fly above 400 ft. AGL.

Second, microdrones can be flown only within line of sight. In order to keep them there, microdrones must have a built-in radius limit of, say, 1,500 ft. horizontally from the DROP.

As a further prerequisite for certification, microdrones must have a return-to-home feature that could be triggered by the DROP, and which would be automatically triggered by loss of signal. This also might be triggered by an indication that the DROP has become inattentive, kind of like the “dead man control” on railroad locomotives.

Many microdrone operators would probably not be in full agreement on these proposed limitations. We imagine, for instance, that operators would not be happy with the FAA imposing an arbitrary maximum horizontal radius to enforce line of sight. But, on balance, this seems to us like a preferable approach to insuring that both commercial operators and hobbyists are able to use off-the-shelf technology without having to go through the cumbersome process of obtaining traditional FAA certifications.

What do you think?