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Drones Part 2: Breaking News--Taylor v. FAA and Registering Drones with the FAA Rule Changes


20419335_blog.jpgIn the first installment of our series on drones, we took you through a brief history of drone and aircraft regulation, along with the current criminal laws that are in play in order to help you navigate safely without ending up in the slammer. We had planned to explore civil liability and insurance issues related to drone operation in our second installment; however, the United States Court of Appeals for the District of Columbia Circuit changed that when it issued its decision in Taylor v. Huerta on May 19, 2017 that changes the landscape regarding individuals and their use of drones by invalidating the FAA Registration Rule requiring drones and "model aircraft" to be registered with the FAA.

Registration Rule - 336(a):

In 2015, the FAA created a rule known as the Registration Rule that required owners of small unmanned aircraft (model aircraft/drones) that weighed less than 55 pounds and used for recreational purposes to register with the FAA. Registration would occur through the FAA's online web-based system for $5.00 per drone. In Taylor, the D.C. Circuit Court of Appeals struck down the FAA's Regulation Rule as it applies to "model aircraft" and registration. In 2012, Congress passed the FAA Modernization and Reform Act. In section 336(a) of the Act, known as the "Special Rule for Model Aircraft", it provides that the FAA "may not promulgate any rule or regulation regarding a model aircraft." As a result, the Court explained that the 2015 FAA Registration Rule directly violates the clear statutory prohibition and intent of the Congress. Further, the Court explained that since the Rule creates a new regulatory regime for "model aircraft" it is in direct violation of 336(a) and is not enforceable. Thus, owners of recreational "model aircraft" are not obligated to register with the FAA, nor are they subject to civil fines or imprisonment for not doing so.

Advisory Circular 91-57A:

In addition to the Registration Rule, Taylor challenged the enforceability of FAA Advisory Circular 91-57A which banned drones from operating in prohibited areas around the Washington D.C. area. To successfully challenge an Order of the FAA, the claimant must file the challenge within 60 days of the order's issuance. Courts have discretion to allow a late petition if it finds that the petitioner has "reasonable grounds" for missing the deadline. However, in this case the Court was not convinced by the claimant's arguments for late-filing the challenge asserting (1) there was not adequate notice of the Circular and (2) the clarity of the Circular itself, and denied Taylor's challenge to the Circular as untimely.

Conclusion:

Overall, the biggest take away from this case is that the FAA can no longer enforce its 2015 Registration Rule in regards to "model aircraft", as it is a violation of 336(a) of the FAA Modernization Act. Thus, you do not have to register, and pay the fee, for little Dennis to fly his Batman drone around the subdivision, terrorizing the neighbor's cat, annoying Mr. Wilson next door, and generally wreaking havoc over his summer vacation from school. The nuisance lawsuit from Mr. Wilson, and the cat owners-well, that's a different story. Tune in next time, when we explore that and more, in our continuing coverage of all things drone.


Taylor v. Huerta, No. 15-1495 (D.C. Cir. 2017).

FAA Modernization Act, 49 U.S.C. Sect. 40101.

Id. at Sect. 336(a).

49 U.S.C. Sect 46110(a).

Id.

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