Authored by Scott Hall
On May 19, 2017, the U.S. Court of Appeals for the D.C. Circuit issued a ruling vacating the Federal Aviation Administration’s “Registration Rule,” which required owners of small unmanned aircraft (“drones”) operated for recreational or hobby purposes to register with the FAA.1 The Registration Rule, implemented in December 2015 (strategically, in the midst of a holiday season during which nearly half a million hobby drones were expected to be sold), garnered immediate criticism and opposition from drone users who questioned the FAA’s authority to regulate drones not intended to be operated for commercial purposes. Indeed, given the FAA’s history of a hands-off policy with respect to hobby drones, the Registration Rule was viewed by some as a test of power – something akin to the FAA dipping its toe into the waters of hobby drone regulation to see how far it could go. The D.C. Circuit’s ruling decisively ends the inquiry and precludes further FAA involvement in hobby drone regulation absent some action to the contrary by the Supreme Court or Congress.
Under 49 U.S.C. section 40103, the federal government has exclusive sovereignty over U.S. airspace, and the FAA has the authority to regulate all “aircraft,” which includes drones.2 However, in 2012, Congress passed the FAA Modernization and Reform Act, which states that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” which term encompasses drones flown for hobby or recreational purposes.3
In light of this clear restriction, and in response to petitions challenging the Registration Rule to the extent it purports to apply to hobby drones, the D.C. Circuit concluded that the Registration Rule was barred by the plain wording of the statute because it was, in fact, a rule that created a new regulatory regime for model aircraft, regardless of whether the rule might improve aviation safety.4 As the Court noted, “[s]tatutory interpretation does not get much simpler.”5
Although the Registration Rule was likely doomed from its inception given the historical restrictions on FAA authority over hobby drones, the motivation behind the rule – i.e., the view that there should be a more formal or consistent framework for regulating hobby drones – is not outrageous. After all, hobby drones are just as capable of, and perhaps even more likely to, violate personal privacy or engage in nuisance, trespass, or other misuse than drones used for commercial purposes. And the number of hobby drones currently existing and anticipated in the national airspace over the next five years dwarfs the number of small commercial drones. For example, the FAA anticipates that the number of hobby drones sold by 2021 may exceed 4 million, up from approximately 1.1 million in 2016.6 By contrast, the FAA forecasts that small commercial drones, which numbered just 42,000 in 2016, may increase to 420,000 by 2021.7 The FAA has argued that uniformity in drone regulation – regardless of whether the drones are used for commercial or hobby purposes – is essential for the safe and effective management of air traffic in the national airspace. Thus, when faced with a substantial and unprecedented increase of hobby drones in the nation’s skies over which it had no control, the FAA rolled the dice and took a shot at reigning in what otherwise may prove to be an unmanageable contingent of this rapidly expanding technology. The FAA lost – for now.
The fight regarding federal-state authority over drones, including hobby drones, is far from over. The FAA’s uniform rules for commercial operation of small drones, which went into effect last August, provide a general federal framework for limited commercial drone use (and preempt many aspects of state commercial drone regulation), but explicitly do not apply to hobby drones.8 In fact, the FAA maintains a Fact Sheet on its website that identifies specific areas of law potentially applicable to drones – whether commercial or hobby – that would not be subject to federal regulation, including land use, zoning, privacy, trespass, and law enforcement operations.9 But while many states have started to enact drone-specific laws,10 there is still much to be done by state and local governments if they are to effectively and comprehensively regulate hobby drones, particularly as usage and technology continue to expand.
Ultimately, the D.C. Circuit’s ruling creates a fork in the road for hobby drone regulation: Congress can either extend FAA authority over hobby drones or leave it to state and local governments. The Court’s opinion was explicit in this regard, noting, “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.”11
In the wake of the decision, the FAA will likely take the Court’s suggestion and seek to have Congress expand FAA authority over hobby drones. But both the FAA and Congress should think carefully before proceeding down this path. Although expansion of federal authority for limited purposes such as registration may not seem problematic, such a grant of authority would start down a slippery slope of exclusive federal authority over all drone regulation. Before Congress takes that step, serious consideration should be given to whether the FAA is best positioned to regulate hobby drones, which, for the most part, operate within limited geographical areas, in typically lower altitudes than commercial aircraft, and in volumes that would be extremely difficult, if not impossible, for the FAA to effectively police.
State and local governments may be much better suited to enact and enforce laws and restrictions applicable to hobby drones, particularly with respect to issues or operational concerns unique to their locale. And, although some measure of coordination between federal and state governments will certainly be necessary to ensure that hobby drones can safely operate in the national airspace along with commercial drone traffic, Congress should not hastily put all regulatory authority in the hands of the federal government without carefully weighing the potential drawbacks of an exclusively federal drone regime. The preferred course may be for federal and state governments to share authority over drones and work collaboratively to create a cooperative and comprehensive framework for commercial and hobby drones alike. For this to be effective, however, state and local governments must step up and actively address drone issues through local legislation to a greater extent than they have done previously.
For now, hobby drone users can operate their drones free of any registration requirement or other federal oversight.12 However, hobby drone users should not get too comfortable with the current lack of formal regulation. Given the ever-increasing popularity of drones, as well as rising concerns regarding drone privacy violations, trespass, and other misuse, a more formal regulatory framework for hobby drones – be it state, federal, or combined – appears all but inevitable.
1. See Taylor v. Huerta, Case No. 15-1495 (D.C. Cir. May 19, 2017). A copy of the opinion is available at: https://www.cadc.uscourts.gov/internet/opinions.nsf/FA6F27FFAA83E20585258125004FBC13/$file/15-1495-1675918.pdf
2. See 49 U.S.C. § 40102(a)(6), defining aircraft as “any contrivance invented, used, or designed to navigate or fly in the air.” See also Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker, NTSB Order No. EA-5730, Docket CP-217 (Nov. 18, 2014) (holding that drones are “aircraft” subject to federal regulations).
3. Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101).
4. Taylor, Case No. 15-1495, at 7-8.
5. Id. at 7.
6. See FAA Aerospace Forecasts, available at: https://www.faa.gov/data_research/aviation/aerospace_forecasts/media/Unmanned_Aircraft_Systems.pdf
8. 14 C.F.R. Part 107.
9. December 7, 2015 Fact Sheet: State and Local Regulation of Unmanned Aircraft Systems (UAS).
10. For an overview of current or pending state drone laws, see http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx
11. Taylor, Case No. 15-1495, at 8.
12. The ruling does not take effect immediately, however, and provides 7 days for the parties to petition for rehearing. See https://arstechnica.com/wp-content/uploads/2017/05/faastay.pdf