Hobby Drone Registration Requirement Struck Down:  The Beginning of the End for Regulation of Hobby Drones?

May 20, 2017

On May 19, 2017, the D.C. Circuit Court of Appeals invalidated the “recreational use” drone registration requirement in a case entitled Taylor v FAA. The case involved a recreational drone user near Washington, D.C., John Taylor, who objected to the FAA’s implementation of a new regulation in December, 2015 which required all drones above .55 lbs. to be registered online and entered into an FAA database.  A peripheral issue was whether the FAA had the authority to prohibit recreational drone use in a new 30-mile radius “Washington D.C. Flight Restricted Zone.”  In effect, this “Flight Restricted Zone” precluded any recreational drone use whatsoever, including someone flying their toy drone in their own backyard, within the affected area.

The main argument made by Mr. Taylor, and which was validated by the Court, was that Congress in 2012 passed Section 336 of the FAA Modernization and Reform Act, which specifically prohibited the FAA from creating any new regulations related to “model aircraft.” The exact wording of the statute included that “the FAA may not promulgate any rule or regulation regarding a model aircraft.”[1] The intent of Congress was to keep the status quo with regard to “model aircraft” and the Court held that by imposing a registration requirement, the FAA clearly violated the plain wording of the statute.  The FAA’s arguments that the registration rule was necessary for “public safety” and that the statute did not prohibit a registration rule did not impress the Court.  It is important to note, however, that none of the other requirements for recreational drone users, such as the requirement to safely operate according to a “community-based” set of safety standards (including avoiding manned aircraft, no flight over people, contacting air traffic control when near an airport) were discussed or changed in this decision.[2]

In this author’s opinion, the Court got it right.  The issue is not whether drone users should be required to register.  The issue is whether the FAA should be allowed to go through a series of contortions to regulate what Congress had specifically precluded from regulation. In that sense, this was not a difficult decision for the Court.  It is also a good example of one of those rare occasions where David beat Goliath, with Mr. Taylor almost single-handedly taking on the might of the federal government with only a small team of attorneys and consultants assisting him in the background.

So, unless the FAA appeals the decision to the U.S. Supreme Court (which would be unlikely to take it up anyway), the recreational drone registration requirement is gone, for now.  What does this mean?  In the short term, recreational drone users do not have to register their drones.  Possibly, it will mean that those who did register will get their $5 back. It is unknown what will happen to the FAA’s database of recreational drone users, which many had objected to as an unnecessary and inappropriate invasion of privacy akin to a “gun owner registry.”

In the long run, this decision creates many questions.  Will the FAA and/or those in favor of recreational drone registration lobby Congress to include such a requirement specifically in a statute, or even worse, remove the prohibition on creating new regulations for “model aircraft” (presumably as an add-on to some other unrelated bill)?  What about the other regulations relating to recreational drone use set forth in the recent FAR Part 101 regulations?  Mr. Taylor has another case pending in the same Court challenging the recreational rules, which has been briefed and is awaiting oral argument.[3]  In that case, Mr. Taylor makes many compelling arguments, including that “model aircraft” are not “aircraft” subject to the full weight of the FAA’s regulatory powers, and that the regulations are vague and ambiguous because the statute fails to define the “community based safety standards” to which recreational drone users are required to follow. This case has greater potential to shake up the current drone regulatory structure and send the FAA “back to the drawing board” concerning recreational drone use, especially if the Court determines that “model aircraft” are not “aircraft.”  In fact, in a worst-case scenario for the FAA, the Court could potentially (although unlikely) hold that small drones are not “aircraft” at all, whether used for recreational or commercial purposes.  That decision would be a huge shock to the current system of drone regulation and would reverberate not only through the federal regulatory landscape but could also encourage states and local governments to become more aggressive in their own local drone regulations.

The other issue, which is certainly not insignificant, is whether we want to go back to an environment where there are no rules, or minimal rules, for recreational drone use.  There are certainly already other laws on the books to prohibit “careless and reckless behavior”, but is this enough?  How does the industry ensure safety while at the same time avoiding over-regulating what is, in reality, a hobby?  Does the fact that small drones can be disruptive to people and aircraft, even when used for recreational purposes, make it more important to regulate? We certainly do not want to give “carte-blanche” to recreational drone users to think they can fly wherever they want, whenever they want, without accountability.  We certainly do not want anyone to be able to walk into a Walmart or Best Buy, buy a DJI Phantom 4, and walk out of the store to unbox it in the parking lot and fly it away without any knowledge or understanding of the technology, safety issues, and regulations.  The question is how do we reasonably create that accountability?  And how do we provide such accountability without requiring 5-year-olds to register and contact the airport five miles away whenever they want to fly at 20’ in their own backyards?

As always in the ever-changing world of drone law, there is much more to come.

D. Damon Willens
Chair, Aviation and Unmanned Aircraft Systems Practice Group
Anderson, McPharlin & Conners LLP

[1] Sec. 336(a), 2012 FAA Modernization and Reform Act, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101).

[2] The Court did not address Mr. Taylor’s arguments concerning the validity of the radius “Washington D.C. Flight Restricted Zone” because the Court found that the petition for review was untimely with regard to that issue.

[3] The FAA’s opposition and Mr. Taylor’s reply are here and here.