Tag Archives: drone registration

Singer v. Newton: Are State and Local Governments Now Prohibited From Regulating Drones?

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The short answer is, no.  The Singer decision is narrow, non-binding, leaves other parts of the ordinance in place, and expressly leaves the door open for Newton (and other state and local governments) to enact more narrowly-tailored regulations on drones.

In a way, the four challenged provisions of the Newton ordinance were an easy call, because each conflicted with or effectively usurped existing FAA regulations.  This allowed the court to invoke the doctrine of “conflict preemption,” as opposed to what is called “field preemption.”

“Field preemption” is invoked when the federal government occupies the entire field of an area of regulation that is within its Constitutional authority, even though it might not have enacted a specific regulation pertaining to the challenged state or local law.  Significantly, the court rejected field preemption because the FAA has expressly left the door open to some state regulation of drone use (such as the privacy protections of Florida’s FUSA statute, which I discussed, here).

“Conflict preemption” means exactly what it implies:  That when the federal government regulates an area within its Constitutional authority, those regulations are the supreme law of the land and the states may not enact laws that would contradict or undermine the federal regulation.

Briefly:

Section (b) of the Newton ordinance provided that “[o]wners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”  Because the FAA has held itself out as the exclusive authority for registration of aircraft, striking down this provision of the ordinance was that rare bird in litigation: a no-brainer. This is probably the broadest part of the decision, in that the court made it clear that the city may not require any kind of drone registration, period.

The ordinance at subsection (c)(1)(a) prohibited drone flights below an altitude of 400 feet over any private property without the express permission of the property owner.  Also, subsection (c)(1)(e) prohibited flying drones over public property, at any altitude, without prior permission from the city.  The court found that these provisions had the effect of banning all drone flights in the city, because FAA regulations restrict sUAS flights to below 400 feet AGL.  While the FAA left the door open to some local regulation of drones, that should not be interpreted as license to effectively ban drone operations. This leaves the door open to the possibility of a more narrowly-drawn ordinance.

Finally, subsection (c)(1)(b) of the ordinance prohibited drones from being operated “at a distance beyond the visual line of sight of the Operator.”  This was plainly duplicative of Part 107 and, as such, tended to usurp an express regulation of the FAA (which could, at some time in the future, change its mind about BVLoS operation).

The decision ends with a note that Newton is welcome to craft narrower regulations.  Precisely what those regulations will look like is hard to say.

Whatever the case may be, one should not take this as an invalidation of drone regulations in one’s particular state or city.  The court only addressed these specific provisions of the Newton ordinance, and the decision has no binding effect on other courts, let alone other states and municipalities.

But let us not detract from the significance of this win, either.  Major kudos are in order for the petitioner, Dr. Michael Singer, and his attorneys.

Drone Registration: A Question of Policy vs. Process

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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.

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

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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.

The FAA’s Drone Registration Requirement: A Brief Review

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CHRISTMAS MORNING – SOMEWHERE IN AMERICA

A 12-year old boy opens a large package under the tree as his mom looks on with a tired smile.  “A drone!” the boy exclaims. “Just what I wanted! Thanks, Mom! Can I fly it, now? Can I, please?”

“I’m sorry, hon,” his mom sighs, “but you’re going to have to wait. Daddy’s still on the FAA website.”

And there you have it.  For the first time in the history of Christmas, an agency of the United States government will require you to register your child’s toy before he can begin to play with it.

Why?  Good question.

Section 336 of the FAA Modernization and Reform Act of 2012 contains an express prohibition, that the FAA “may not promulgate any rule or regulation regarding a model aircraft. . . .”  We naively assumed that, when Congress says that an agency “may not” do a thing, the agency indeed “may not” do it.

But nothing will upset the Constitutional order of the Republic faster than a bout of media-driven hysteria. The FAA has taken the position that all drones – including what were traditionally called model aircraft – are “aircraft” within the meaning of the Federal Air Regulations.  Taking its cue from panic over sightings of drones coming too close to manned aircraft, the FAA suddenly decided that 49 U.S.C. § 44102 gives it the authority to require registration of all drones, regardless of whether they are operated recreationally or professionally.

A task force of very capable individuals was quickly set up to provide recommendations to the FAA on drone registration.  Their proposal was subjected to a lightning-fast comment period which, depending on who you ask, may or may not have violated the Administrative Procedure Act.

The Final Interim Rule (a title which leads us to suppose that the rule isn’t FINAL final) on drone registration has been published, here.

The putative purpose of the registration requirement:

The estimate for 2015 sales indicates that 1.6 million small unmanned aircraft intended to be used as model aircraft are expected to be sold this year (including approximately 50 percent of that total during the fourth quarter of 2015). With this rapid proliferation of new sUAS will come an unprecedented number of new sUAS owners and operators who are new to aviation and thus have no understanding of the NAS [National Airspace System – ed.] or the safety requirements for operating in the NAS.

The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS. Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS. Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

Let’s unpack that last paragraph:

1) The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS.

Well, maybe. The fact is that we don’t really know. Numerous reports of “drone strikes” on manned aircraft have turned out to be false.  In any event, Congress expressly prohibited any “rule or regulation” concerning model aircraft.  We are unaware of the FAA’s authority to circumvent Congress.  Indeed, it is almost laughable that the FAA seized the authority to require registration while claiming, for example, that it lacks statutory authority to waive the airman certification requirement under Section 333 or to waive the registration fee requirement for model aircraft.

2) Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS.

This makes two very large assumptions, neither of which is likely to be valid.  First, there have been almost no incidents of alleged threats to the NAS in which the offending drone has been recovered.  Without recovery, there will be no identification.

Second, it assumes 100% compliance with the registration requirement.  We frankly doubt that the level of compliance will be anything approaching 100%.  We especially doubt that those who are intent on causing harm or, at least, mischief, are likely to comply.

3) Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

This might be true if the rule had either a point of sale requirement (unworkable) or required a device that prevented the drone from being operated before it was registered (some drone companies build this sort of requirement into their devices).  But the rule does neither.

In addition to being likely ineffective and almost certainly contrary to law, the FAA registry will present a significant likelihood of exposing private data to the public.

The drone registration site is here.

The deadlines for compliance is December 21, 2015 for drones that are intended to be used exclusively as model aircraft but never flown, February 19, 2016 for drones that have been previously operated as model aircraft.

Merry Christmas!

FAA Publishes Drone Registration Rules

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Other than a few blurbs on Twitter, I haven’t had much to say about the pending rules on drone registration, primarily because it was unclear to me just how it could work, especially vis a vis hobbyists.  And it seemed especially unlikely to achieve the putative goal of allowing authorities to trace drones that endanger other aircraft back to their owners.

As I have said in the past, where the burden imposed by a regulation significantly outweighs the chance of getting caught, the likely result will be a lot of non-compliance.  And, as with many things, the people who do comply are unlikely to be the people that you need to worry about.

But I also know some of the stakeholders who participated in crafting the rule, and I wanted to wait and give them the benefit of the doubt.  They were given an enormous task, and very little time to come up with a solution.

Following a breakneck rule-making timeline, the interim final rule on drone registration has now been published.  It goes into effect next Monday.