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.
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…”
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.
Regardless of what one may think of the NTSB’s logic, based on the broad, post-New Deal interpretation of the Commerce Clause it is at least conceivable that the FAA’s jurisdiction extends that far. But we think that Congress has already signaled a different approach.
FMRA section 336 specifically excludes model aircraft from regulatory oversight, except as to those operators “who endanger the safety of the national airspace system.” This seems like a clear statement that the FAA’s authority to regulate model aircraft is risk-based. In other words, the FAA should look not at whether a particular device is capable of flight, but at the nature of the activity in question, and the risk that a particular device is likely to pose to the national airspace.
This of course requires a fact-based analysis, which will vary, case by case. But it doesn’t mean that the FAA can’t draw reasonable, bright lines on what it should regulate, and what it should leave alone. In fact, it’s already been done, quite close to home.
Transports Canada has recently published a very simple explanation of its own, risk-based jurisdictional approach for sUAS. This graphic lays it out in a single page:
This is remarkably sensible. If you’re a hobbyist, and your drone weighs 35 kg or less, then use common sense and happy flying. The rules for exempt professionals are also clear.
In our post, last Wednesday, we discussed the meaning of the NTSB’s ruling in the Pirker case. Towards the end of the discussion, we noted Congress’ statutory construction provision, contained in the FMRA’s Special Rule for Model Aircraft:
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.
We take this as evidence of Congress’ intent to limit the FAA’s jurisdiction over model aircraft to operators who endanger the national airspace, as opposed to the NTSB’s finding of broader jurisdiction to prohibit threats to life or property under 14 C.F.R. § 91.13(a). But what constitutes a threat to the national airspace? If the FAA was to conclude that using a model aircraft to buzz pedestrians on a sidewalk constituted such a threat, would it be upheld in a court?
It may come as a surprise to some that Congress has no general police power. For example, there is no general federal law prohibiting murder, except for murder of a U.S. government official or employee. There are exceptions that don’t pertain to our discussion, here.
The majority of federal prosecutions, for crimes such as money laundering, kidnapping and drug dealing, must have an interstate component in order to fall within the feds’ jurisdiction. For these and most civil federal regulations, Congress relies on the Interstate Commerce Clause of Article I of the U.S. Constitution, which gives Congress authority to regulate interstate commerce. This includes the authority to regulate the national airspace, and to delegate the enactment and enforcement of regulations to the FAA.
How far does the Commerce Clause extend?
It has become difficult to say where it doesn’t extend. In our opinion, the Framers intended the Commerce Clause to be a power to promote or facilitate interstate commerce. The United States had suffered with a weak central government under the Articles of Confederation, leading states to impose discriminatory tariffs against each other’s goods and to engage in other activity, such as printing money, that we take for granted today as exclusively federal in nature. Something had to be done to prevent the states from killing each other. But it was still regarded as a limited power.
Indeed, before the Switch in Time that Saved Nine, the courts found it relatively easy to distinguish between “interstate” commerce, which Congress could regulate, and commerce that was wholly intrastate. But then came decisions like Wickard v. Filburn, in which a hapless farmer was cited for exceeding his wheat production quota. The fact that he grew the excess wheat exclusively for consumption on his own farm was of no moment, the Supreme Court concluded. Because Mr. Filburn’s excess wheat reduced the net amount of wheat that needed to be sold on the market, it had a sufficiently substantial, indirect effect on interstate commerce to bring Mr. Filburn’s conduct within the ambit of the Commerce Clause.
The logic of Wickard has been applied more recently in cases such as Gonzales v. Raich, in which the Supreme Court found that growing your own medical marijuana, in your own backyard for your own consumption, and in compliance with state law, had a sufficient relationship to interstate commerce that the DEA could enter your yard and tear up your plants (assuming a good day – on a bad day, you might get prosecuted under federal law). Yeah, we know. Crazy. Just ask Justice Thomas, who wrote a scathing dissent in that case.
It looked like the Court might draw a line in National Federation of Independent Business v. Sebelius, otherwise known as the Obamacare “individual mandate” case. Contrary to popular belief, a majority held that the individual mandate, as a mandate, was unconstitutional. Nothing in the Court’s decisions regarding the Commerce Clause, that majority concluded, justified requiring an individual citizen to actually participate in commercial activity based on the mere fact that the citizen still drew breath. But in a moment that was reminiscent of the Switch in Time, Chief Justice Roberts sided with the Court’s liberal majority in deciding that the mandate could be sustained as a tax. Go figure.
You can probably see where this is going. The question presented might one day be:
Does operating a model aircraft, away from controlled airspace, within a discrete area – like one’s backyard – and below the normal, safe operating altitude of a manned aircraft, implicate interstate commerce?
The intuitive answer would be, no. After all, it seems on its face to be a wholly intrastate activity. It is also, on its face, non-commercial in character. Small drones have very limited range, dictated by both visual line of sight rules and battery life. These practical limitations make it highly unlikely that a small, remote controlled drone is going to cross state lines.
But obviously, the answer isn’t that simple. For example, no one disputes the FAA’s authority over intrastate commercial air traffic, because without a federal system intrastate air travel simply would not work. In other words, every flight that enters the national airspace has a substantial, even if indirect, effect on interstate commerce.
Which brings us back to what we see as a critical question: Have we adequately defined the “national airspace”, given this new era of technology that is now upon us? Can we, for example, draw a bright line somewhere? Below 400 feet? Below the height of an average telephone pole?
Maybe. But then consider a counter-factual. If and when Amazon’s Prime Air service gets up and running, it might well operate exclusively in Class-G airspace, but few can doubt that a sales and distribution network like Amazon has a substantial effect on interstate commerce. And even if we’re just talking about the airspace, itself, the federal government surely has an interest in making sure that sUAS don’t interfere with manned aircraft traffic.
Fast-forward to Christmas Day, 2014. A 12-year old kid is playing with the brand-new Phantom that Santa left under his tree. As he gains confidence, he buzzes a jogger and a neighbor’s dog. He loops over and under power lines. He shoots up to 400 feet, then down, then up to 500 feet, and so on.
Does there come a point where the kid’s activity goes from being wholly intrastate, to having a substantial effect on interstate commerce?
Here, the FAA may have a trump card. Read Justice Scalia’s concurring opinion in Gonzales v. Raich, where he concludes that the Necessary and Proper Clause of Article I gives Congress the power to enact measures in support of its authority to regulate interstate commerce. In other words, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.'”
Granted, this reasoning was not adopted by the full Court, so its binding effect may be limited. But neither can Scalia’s opinion be easily dismissed. A court may well conclude that, however remote the impact the kid with his new Phantom has on interstate commerce, the ability to draw limits on his conduct is a necessary and proper exercise of federal authority to regulate the national airspace. Said differently: What good is the power to regulate the national airspace if you can’t regulate activity that has the potential to impact the national airspace?
That is, at least, one possible outcome.
We will have more to say about this as events unfold.
UPDATE: Just to be clear, the discussion above is about one possible theory regarding the scope of the federal government’s jurisdiction to regulate contrivances made for flight in the air. It is not a comment on the merits of any particular regulation or policy.
That seems to be the gist of this story, which has taken the internet by storm, today:
Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.
The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.
…
In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.
There’s a lot to unpack, here. But the upshot is that, assuming the report is accurate, hidebound thinking has prevailed over common sense: Two operators, side by side, operating the same model, under the same conditions will be subject to different requirements, based on the mere fact that one is getting paid and the other is flying for pleasure.
Leaving that aside, requiring anyone to go to traditional flight school to become licensed to operate a small, remote-controlled model-type aircraft makes about as much sense as requiring someone to be trained in an M1 Abrams tank as a condition for being allowed to fire a pistol on a shooting range.
We will obviously have much more to say about this as the news unfolds.
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.
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.
The NTSB has spoken. Short version: The NTSB concludes that the FAA has jurisdiction to regulate the safe operation of model aircraft, and has remanded the Pirker case for findings of fact on whether Pirker operated his RITEWING Zephyr drone in a reckless manner. The full decision is here.
The NTSB begins by defining the scope of its opinion:
At this stage of the proceeding … we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent’s unmanned aircraft system (UAS) an “aircraft” for purposes of § 91.13(a), which prohibits any “person” from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another”? We answer that question in the affirmative.
The law judge’s ruling in Pirker’s favor turned on the conclusion that the FAA had never asserted jurisdiction over model aircraft, and that the FAA’s position now would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).” The NTSB unequivocally rejects that conclusion:
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.
From there, the NTSB concludes that the FAA’s interpretation of its jurisdiction as allowing it to prohibit the “reckless” operation of small, unmanned aircraft under Section 91.13(a) is reasonable. The NTSB is not swayed by the voluntary guidelines found in Circular 91-57:
Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.
Writing at Forbes, Gregory S. McNeal emphasizes that small drone operators are now on notice that they can be fined for reckless operation of any unmanned aircraft.
Asked for comment, Pirker’s attorney, Brendan Schulman, kindly responded:
While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed. The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin. We are reviewing the options for our next steps in the Pirker case.
We agree with Mr. Schulman’s assessment. This decision only goes so far as to say that the FAA can prohibit the reckless operation of model aircraft, the FMRA’s Special Rule for Model Aircraft notwithstanding (apparently). It reaches no conclusions on whether Mr. Pirker should be fined. However, if the law judge finds that Pirker operated his aircraft in a reckless manner, he might have no choice but to sustain a fine.
As a practical matter, we would guess that the NTSB was influenced in its thinking by a growing number of press reports – some of which could be taken more seriously than others – about reckless conduct by amateur drone operators. Perhaps the NTSB even read a recent article in which an amateur operator begged for someone to stop him before he hurt somebody. For now, we can only speculate.
(Note: The FAA has temporarily un-cancelled Advisory Circular 91-57. See Update, below.)
The FAA’s withdrawal of Advisory Circular 91-57 is causing a round of concern that the agency is taking steps to make hobby drones illegal. This article from Vice is an example.
The Federal Aviation Administration took the first initial steps today toward severely restricting or banning all hobby and commercial drone flights in the country, putting in a request to formally cancel the document under which model aircraft have legally operated since 1981.
While we have expressed our own concerns about FAA overreach, we think that panic in this case is unwarranted. The more likely explanation is that the FAA is cleaning out its attic in preparation for instituting a final regulatory framework under the FAA Modernization and Reform Act of 2012.
First, it is important to understand the applicable language of the FMRA pertaining to model aircraft:
SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—
(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
(b) STATUTORY CONSTRUCTION.—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.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
(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.
In other words, Congress has told the FAA that it can’t impose any regulations on model aircraft. That is the law. However, the FAA – for better or worse – is charged with promulgating regulations interpreting the laws that Congress passes, and the courts grant agencies like the FAA a fair amount of deference in how they construe statutory language.
The current fight is over how broadly, or how narrowly, Congress’ definitions for model aircraft should be construed. For example, what did Congress mean by “flown strictly for hobby or recreational use”? What did Congress mean by “flown within visual line of sight of the person operating the aircraft”?
The language of Section 336 of the FMRA, by itself, conflicts with Advisory Circular 91-57 in some respects. For example, AC 91-57 provided for voluntary notice to a control tower when operating within 3 miles of an airport. The FMRA requires notice if operating within 5 miles. Thus, even if the FAA ends up construing (or is forced to construe) the definitions for “model aircraft” broadly, the final language is almost certainly going to be inconsistent with the language of Advisory Circular 91-57.
We therefore see the cancellation of AC 91-57 not as part of a plot to criminalize modeling, but as an example of agency housekeeping.
FAA does plan to cancel AC 91-57 in order to reconcile the outdated AC with current sUAS policy and the “Special Rule for Model Aircraft” provided by Congress as part of the FAA Modernization and Reform Act of 2012. However, this will occur at a later date and will be accompanied by additional information and an explanation as to the reason for the cancellation.
