Court’s ruling on hobby drone registration creates new questions

By Luke Geiver | May 24, 2017

A hobbyist drone pilot from Washington D.C. has altered the regulatory landscape for small unmanned aircraft vehicle flights across the entire U.S. Through his successful efforts to have the U.S. Federal Aviation Administration’s year-old drone registration policy struck down in a D.C. Court of Appeals, Taylor has eliminated the requirement for hobby drone owners to register their sUAVs with the FAA.

Following Circuit Judge Brett Kavanaugh’s ruling, effective immediately, hobbyist no longer need to register the drones they own or operate for non-commercial purposes. The drone registration and hobby versus commercial debate goes back to 2007. Through an FAA notice issued in 2007, commercial UAV operations were put under a robust set of regulations requiring operators to report an aircraft’s intended use, time, or number of flights, area of operation and other things. Hobby operators, however, were left out of the regulations.

A 2012 Congressional Act then reiterated the difference between hobby drones and those used for commercial purposes. Kavanaugh based his decision to strike down the FAA’s ability to require registration for all drones on the language from the 2012 Congressional Act. The act, as cited in Kavanaugh’s explanation for his decision, defines model aircraft as an unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft and flown for hobby or recreational purposes.

“The 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 of regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft,” Kavanaugh wrote in his decision.

Following the release of Kavanaugh’s decision, both the FAA and the Association for Unmanned Vehicle Systems International released short statements.

AUVSI President, who helped draft and push for the drone registration process, voiced disappointment. “A UAS registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior,” adding that AUVSI intends to work with Congress on a legislative solution that will ensure continued accountability.

The Academy of Model Aeronautics government affairs team also offered its own opinion. “We have repeatedly argued that federal registration for our community is duplicative and unnecessary, as our members already register their model aircraft with AMA,” government affairs for AMA said. “In addition, our 80-year history of safe and responsible flying demonstrates that we’re not the problem. We shouldn’t be burdened by overly broad regulations.”

The FAA said it was carefully reviewing the decision. “The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.”

Patrick Byrnes, a partner in law firm Locke Lord’s litigation department, said the opinion of the court suggests the FAA is precluded from regulating in any way the operations of drones used for recreational purposes. “Separate and apart from this decision, there are potential further constitutional challenges to the FAA’s regulatory authority over the commercial use of drones below 500 feet and in particular, on private property,” Byrnes said.

The ruling may also call into question other issues related to the FAA’s regulatory authority, according to Thaddeus Lightfoot, a partner at Dorsey & Whitney. “The opinion touches on but does not address the FAA’s regulatory authority for drones flown for a “commercial purpose” and those flown “for hobby or recreational purposes.” The FAA is broadly construing a “commercial purpose” as a flight for a direct or indirect benefit, even if not money is involved,” Lightfoot said. “So, over the last year the FAA has fined persons taking photographs from drones for their own use or the use of friends, construing the flight “for hobby or recreational purposes” very narrowly and the “commercial” use concept very broadly. This tension between recreational use and commercial use is likely to be the next frontier of drone litigation.”