The D.C. Circuit Court of Appeals recently determined that the FAA’s registration rule for recreational unmanned aircraft systems (“UAS” or “drones”) was beyond its legal authority.  While this ruling is a setback for the FAA in its ability to track and oversee the hundreds of thousands of recreational drones operating in the U.S., we view the obstruction as temporary and likely to be fixed legislatively.

In December 2015, the FAA began requiring the registration of all UAS in the country, including those used for recreational, commercial, or public use. Registration is performed online, costs $5, and requires UAS owners to provide their names, addresses, and email addresses. After registration, the owner is required to label the UAS with the FAA drone registration number. Since the regulation went into effect, almost a million drones have been registered on the FAA website.

John Taylor, a recreational drone operator, challenged the registration rule alleging that the FAA lacked the legal authority to make any regulations pertaining to recreational UAS. In particular he argued that the 2012 FAA Modernization and Reform Act prohibited such a regulation through a provision that states the FAA “may not promulgate any rule or regulation regarding a model aircraft.” The definition of model aircraft includes drones flown for recreational purposes. Based on this statutory language, Taylor argued the FAA exceeded its statutory authority and asked the court to overrule the regulation in so far as it applied to recreational UAS operations.

The FAA countered, arguing that the regulation is within its authority because the regulation rule wasn’t a new legal requirement, but instead a modified version of a pre-existing regulation that applied to all aircraft. The FAA maintained that all other aircraft need to be registered with the government, and that the FAA has the same authority to require drones to also be registered. Additionally, the FAA argued a number of policy reasons why UAS registration is beneficial for the safety of the National Airspace System.

The D.C. Circuit’s three judge panel found for Mr. Taylor and overturned the rule’s applicability for model aircraft and recreational UAS. Judge Kavanaugh, writing the opinion for the panel, said that “statutory interpretation does not get much simpler.” The court determined that the new regulation for model aircraft registration was directly in violation of Congress’ prohibition on any rule regarding model aircraft. The D.C. Circuit ruling does not modify the registration rule for commercial UAS.

While the FAA still has the ability to enforce prohibitions on reckless and careless operation of UAS, this ruling is a setback for the FAA’s enforcement capabilities. Without information regarding the owner, it will be more difficult for the FAA to share information regarding UAS best practices and address violations of UAS rules.

Mr. Taylor also challenged the validity of the Washington, D.C., Flight Restricted Zone—also known as the “No Drone Zone”—which prevents any drone operation in a wide radius around D.C., Northern Virginia and Southern Maryland. On that portion of the challenge, the court found that Taylor’s challenge was untimely, as he did not file his challenge within the 60-day window allowed by statute.

Looking forward, the FAA may appeal the case to the full D.C. Circuit court sitting en banc and may even appeal the case to the United States Supreme Court.  However, we believe neither an en banc review nor an appeal to the Supreme Court has a high probability of success.  We expect the FAA or other stakeholders, including the main drone lobby, the Association of Unmanned Aerial Vehicles (AUVSI), to ask Congress to amend the 2012 law to permit certain regulations relating to recreational UAS. The FAA is likely to invoke safety concerns, saying that the regulations are necessary to ensure the multitude of recreational drones do not interfere with or cause a safety threat to general aviation, business aviation, and commercial aviation users operating in the National Airspace System. In the meantime, the FAA will be limited to which regulations it can require of recreational UAS owners and operators.