D.C. Circuit Court of Appeals Says FAA Drone Registration Rules Do Not Apply to “Model Aircraft”

On May 19, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in the case Taylor v. Huerta, Case No. 15-1495. The court concluded that the drone registration rules that the Federal Aviation Administration promulgated in December 2015, “Registration and Marking Requirements for Small Unmanned Aircraft,” 80 Fed. Reg. 78,594 (Dec. 16, 2015), do not apply to “model aircraft.”

The Petition for Review, filed by a model aircraft hobbyist, alleged that the FAA Drone Registration Rule were contrary to Section 336 of the FAA Modernization and Reform Act of 2012, which provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The court stated that the because the FAA Drone Registration Rule is “undoubtedly a rule” and is a “rule regarding model aircraft,” “[s]tatutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.” End of inquiry.

The larger question that is left unanswered is what constitutes “model aircraft.” In the past, drones were treated as “model aircraft” that got a pass from being regulated by the FAA under an advisory circular. Thus, one might argue that after this decision recreational drones do not have to be registered so long as they are considered to be “model aircraft.” Currently on its website, the FAA states that:

Congress defined a “model aircraft” as an Unmanned Aircraft System (UAS) that meets all of the following:

• Is capable of sustained flight in the atmosphere
• Is flown within visual line-of-sight of the person operating it
• Is flown for hobby or recreational purposes

https://www.faa.gov/uas/faqs/ Under the terms of the FAA Modernization and Reform Act of 2012 (P.L. 112-95), a model aircraft is defined as “an unmanned aircraft” that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” P.L. 112-95, section 336(c). Thus, the FAA will be hard pressed to separate a “model aircraft” from a “drone.”

Moreover, it seems that any workaround that the FAA might come up with will be stymied by the fact that it is Congress that has conflated “model aircraft” with “drone.” Any attempt by the FAA to separate its definition of “model aircraft” from its definition of “drone,” most likely will be met with lawsuits pointing to Congress’ interpretation in the FAA Modernization and Reform Act of 2012.

It would seem that, at least for the time being, that recreational use of drones under 55 pounds do not require registration.