Early last year on Lawfare, Ashley discussed the 2015 Federal Aviation Administration (FAA) interim rule “establishing registration and marking requirements for small unmanned aircraft used recreationally—i.e., drones.” The post predicted that state and local laws as well as strong private forces all but guaranteed imminent litigation:
On the one hand, there is widespread frustration among local lawmakers about the leniency of the FAA interim final rule, which does not include any privacy-related protections. On the other hand, the FAA faces strong lobbying by Google, Amazon, and others to keep drone regulations as lenient as possible. As a result, litigation in this space seems virtually certain, as federal and state governments struggle for regulatory control of the hazy area between safety and privacy.
Well, that day has come. Two weeks ago, the U.S. Court of Appeals for the D.C. Circuit issued a ruling striking down the FAA’s regulation, though it failed to block an additional notice placing further restrictions on drone flights in the Washington, D.C. area. This post summarizes the initial rules in place along with Judge Brett Kavanaugh’s opinion, and then offers a perspective on where things might go from here.
The Rule and the Advisory Circular
The FAA is charged with protecting our nation’s skyways, including by “promot[ing] safe flight of civil aircraft.” In that capacity, the FAA issued a general rule in December, 2015, which, in short, required all non-commercial drone owner-operators to register unmanned aerial vehicles (UAVs) “weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff” prior to their operation. Registration would “occur through an online web-based system,” and each owner-operator would be charged $5 to register either one drone or an individual’s fleet of drones. This is not insignificant: the Washington Post reported that “there were 836,577 registrations in the FAA’s system, [which] included 764,830 hobbyists.” (As an MIT alumnus, Russell has already fielded multiple inquiries from hobbyist classmates looking for their fees back.)
In this same capacity, the FAA issued Advisory Circular 91-57A. Importantly for the litigation, the Advisory Circular banned drones from “operat[ing] in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” As one can see from a map of the FRZ, that places a significant burden on anyone’s ability to fly his or her model aircraft in our nation’s capital.
The Suit and the Opinion
John Taylor is a drone operator; more specifically, he’s your everyday citizen who enjoys flying model aircraft. Taylor, a Washington, D.C. native, directly petitioned the D.C. Circuit to review the FAA’s registration requirement and vacate it as it applies to model aircraft. Taylor, who wanted to “continue to [fly his model aircraft] without registering or complying with the new flight restrictions . . . filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.”
Judge Kavanaugh’s 10-page opinion in Taylor v. Huerta addressed the FAA’s statutory authority to issue both the Registration Rule and the Advisory Circular. With regard to the Registration Rule, the opinion begins by tracing the FAA’s historical treatment of drones. In short, the FAA had not historically required registration of non-commercial drones or model aircraft under congressional requirements for registering aircraft, permitting drone owners to register voluntarily. As recently as 2007, the FAA promulgated a regulation that continued to exempt recreational, model aircraft from the rules applicable to operators of traditional aircraft, including a registration requirement.
Then came the 2012 FAA Modernization and Reform Act. In short, Judge Kavanaugh states, “[t]he Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336(a) of the Act, called the ‘Special Rule for Model Aircraft,’ provides that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft.’” (Section 336 of the Act is codified at 49 U.S.C. sec. 40101 note.) Because, in the court’s opinion, the promulgated was a “rule or regulation,” the case was open-and-shut: “Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.”
The panel then explains why, in its opinion, “[t]he FAA’s arguments to the contrary are unpersuasive.” First, the FAA argued that the Modernization and Reform Act did not alter pre-existing authority for the FAA to require registration, despite its previous policy determination to deploy a selective enforcement regime. The panel disagrees, concluding that because the new rule created new requirements, fees, and penalties, it was an entirely new regulatory scheme and thus implicated section 336 of the Act. Second, the panel dismisses the FAA’s argument that the rule in fact furthered the Act’s purpose of “improv[ing] aviation safety.” Citing Supreme Court precedent, Judge Kavanaugh writes: “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.” On this reasoning, the D.C. Circuit strikes down the regulation. (As of the date of this post, however, the registration website is still up and states that drone owner-operators “need to register” their drones.)
The opinion then turns to Taylor’s petition to invalidate the Advisory Circular, but dismisses the petition because it was made “more than two months after the 60-day deadline [to submit one with the FAA] had passed.” Though the court was careful to note that exceptions are permitted if there are “reasonable grounds” for missing the deadline, Taylor could not persuade Judges Kavanaugh, Wilkins, and Edwards that such circumstances merited an extension because the FAA had published the Advisory Circular in the Federal Register, satisfying the statutory requirement for notice. (Taylor also argued that it was insufficiently clear, but later admitted that that was a pretext for “simpl[e] ignorance of the order,” which the D.C. Circuit has held is insufficient to permit such a delay; the D.C. Circuit quickly disposed of this argument.)
The panel was fairly dismissive of the FAA’s arguments, and with some reason: the statute is pretty straightforward. However, there is reason to think that the case was a closer call than the opinion lets on. In particular, section 336(b) of the statute states: “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.” The FAA may genuinely have believed it was shifting from a selective enforcement regime to a complete enforcement regime. But the panel is likely correct in concluding that because this change in enforcement was accompanied both by new requirements and penalties for failing to adhere to the new enforcement, the change constitutes a new rule, rather than a new interpretation of an old rule.
With the Registration Rule effectively dead, this leads us to ask where legislatures—both federal and state—go from here.
Where Does Drone Regulation Go From Here?
The answer to this question is, at a minimum, complicated.
First, the Administration might approach Congress, seeking an amendment to section 336. Whether the Administration can persuade Congress to authorize the FAA to regulate small, non-commercial drones is not clear, though. On the one hand, the Registration Rule seemed reasonable and appeared to be focused on reducing the dangerous use of private drones (examples of which are in wide evidence), so one might expect Congress to authorize the FAA to issue a rule like this. On the other hand, certain groups obviously lobbied Congress successfully in 2012 to create the model aircraft carve-out in the first place, and one might expect them to make a similar case this time around.
Complicating the legislative landscape is a new White House proposal to enable the U.S. Government to take more aggressive actions against drones, including small ones, in U.S. airspace. According to Charlie Savage of the New York Times:
The Trump administration is asking Congress to give the federal government sweeping powers to track, hack and destroy any type of drone over domestic soil with a new exception to laws governing surveillance, computer privacy and aircraft protection . . . ha[ving] expressed growing concern about the proliferation of small drones — including several that have flown over sporting events and one that crash-landed over the White House fence in 2015 — and the potential for terrorists to use them to carry bombs or other weapons into secure areas.
The draft bill’s language would authorize the government to summarily track, seize control of and use force to destroy any unmanned aircraft it determines may pose a security threat to an area designated for special protection.
There’s obviously some tension between a statute that prohibits the FAA from regulating small drones for safety reasons and a legislative proposal that would give the federal government wide-ranging powers to interfere with drones that threaten security. In view of the aforementioned White House drone crash, it strikes us as likely that any such new proposal will be be branded broadly as a national security measure, rather than more narrowly as a safety of transportation measure. Even if the two pieces of legislation were kept on different tracks, if the federal government can successfully persuade Congress that small drones pose a serious enough threat to warrant carving out government officials from the coverage of various criminal statutes, it is hard to see how Congress wouldn’t be willing to let the FAA establish registration requirements for those same drones in the first place.
Second, it is important to look at how localities and municipalities have gone about regulating drones since the FAA’s rule was promulgated. Even before the Registration Rule, state and local governments had passed a significant number of statutes regulating the use of drones. And as Ashley noted in her previous post, an FAA “Fact Sheet makes clear that, consistent with [the authorizing] statute, FAA regulations preempt state and local laws that implicate airspace use, management and efficiency, or safety.” Presumably the Agency still takes that position.
What’s more, the FAA may soon have even more specific statutory support for this position. In 2016, the Senate wrote section 2152 of the Federal Aviation Administration Reauthorization Act of 2016, which, according to the National League of Cities’ Report:
broadly preempt[ed] both states and cities from enacting laws related to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification. Furthermore, states and cities would be prohibited from specifically including drones in laws related to nuisance, voyeurism, privacy, data security, harassment, reckless endangerment, wrongful death, personal injury, or property damage.
Ultimately, Congress did not pass this law; instead, both houses of Congress passed an extension to fund the FAA through Fiscal Year 2017 without 2152’s language included. What the extension did include were sections 2209 and 2210. The former allows individuals to petition the FAA to restrict drones in certain fixed sites such as oil and chemical facilities and infrastructure edifices; the latter provides an exemption from drone flight restrictions at infrastructure sites, presumably for inspection purposes.
Developments on the federal level have been met with new state and municipal regulations. According to the National Conference of State Legislatures, “[a]t least 38 states are considering legislation related to UAS in the 2017 legislative session” as of May 24. The twelve pieces of legislation that have passed in nine states range dramatically in scope: some create criminal sanctions—Indiana’s SB 299 bars the use of drones for harassment or for use in sex offenses, for example—and others designate specific areas for sanctioned flights.
According to the National League of Cities’ Report, the FAA has yet to try to preempt a local drone regulation. In light of the FAA’s reluctance to formally preempt local legislation and the D.C. Circuit’s decision, we might expect to see even greater state and local legislation regulating drone use in coming months, including regulations that verge closer to safety regulations. And that, in turn, might finally prompt the FAA to undertake a preemption action.
So while the matter of drone regulations remains deeply unsettled, federal, state, and local interactions on the issue are taking shape as a real laboratory of democracy.