Feb. 19 marked the final date that drone owners can register with the federal government to avoid being branded a felon by the Federal Aviation Administration (FAA).
As of now, all recreational drone owners whose quadcopters weigh more than 0.55 pounds—including those who owned drones before the registry went into effect on Dec. 21 of last year—face three-year prison sentences and $277,500 in combined civil and criminal fines if they fly their drones without first registering themselves with federal officials.
According to the FAA, these hobbyists and the drones they pilot pose grave threats to the national airspace. Only swift regulatory action backed up by draconian criminal sanctions could possibly safeguard the public from the dangers of these toy armadas.
That logic has fallen on deaf ears outside the halls of the FAA. Model aircraft groups, such as the Academy of Model Aeronautics, advised their members to hold off on registering. Scholars and technology enthusiasts have denounced the policy for its chilling effect on innovation. My colleague, John-Michael Seibler, and I have pointed out that the FAA’s drone owners’ registry will not accomplish any of its stated objectives to educate drone fliers or deter and hold bad actors accountable.
Now the registry is coming under attack in the courts. In December, a Maryland drone owner filed the first challenge in federal court. The nonprofit group TechFreedom has also filed suit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking judicial relief from the FAA’s burdensome registry.
TechFreedom’s case comes down to three arguments:
- The FAA acted unlawfully by issuing a new regulation because of the existence of a prior law expressly forbidding such action.
- Existing aircraft registration statutes do not give the FAA authority to impose a drone owners’ registry.
- The FAA “did not show good cause for dispensing with the Administrative Procedure Act’s notice-and-comment rulemaking process.”
All three arguments appear to have merit.
To the first point, in 2012, Congress passed the FAA Modernization and Reform Act, which contained sections dealing with “small unmanned aircraft systems”—what we colloquially call “drones.”
Congress mandated that the FAA come up with regulations governing the use of commercial drones—a mandate, incidentally, that the agency has utterly failed to comply with. But section 336 of that law expressly forbade the FAA from issuing new rules governing drones flown for “hobby or recreational use.”
Congress, it seems, wanted recreational drone policy to be addressed at the state and local level; the FAA, meanwhile, wanted total federal control over drones. As a result, the FAA has essentially read section 336 out of the statute, pretending it does not exist so the agency can establish its registry despite Congress having denied it the authority to do so.
This leads directly to the second argument TechFreedom asserts: Even if this explicit legislative prohibition did not exist, the FAA would seem to lack the authority to create this registry.
Federal law considers drones to be “aircraft” in the same category as a Cessna or a Boeing 747 (a ridiculous categorization that Congress would be wise to change). For decades, the FAA recognized the absurdity of requiring hobbyists to comply with aircraft registry laws and exempted them. In October, the agency changed its mind as a prelude to issuing its new drone regulations.
Federal law, however, authorizes the FAA to register only aircraft—the drone rule requires the registration of people. When a Cessna owner registers his plane, the FAA takes down detailed information about the craft and then issues it a unique tail number. By contrast, the FAA requires no detailed information about a drone, focusing instead on the owner’s personal information. The owner is then issued a number that, like a driver’s license number, is unique to him, not his drone. The FAA may call this a drone registry, but it is clearly a drone owners’ registry, and that falls outside the scope of the FAA’s legal authority.
Finally, by rushing the registry into place, aviation officials may also have violated the Administrative Procedure Act (APA), a law governing the federal regulatory process. Typically, agencies like the FAA must file a Notice of Proposed Rulemaking and provide the public time to digest proposed regulations and file comments that agencies use to refine or abandon their proposed rules. This process is slow, but it prevents agencies from acting like kings within their respective spheres of influence.
There is, however, a narrow exemption: If an agency can show “good cause” why this process would be “impracticable, unnecessary, or contrary to the public interest,” it can skip straight to the end.
The FAA claimed that this exemption applied when it bypassed the Administrative Procedure Act with respect to the drone owners’ registry. It cited alarmist statistics showing growing numbers of “near collisions” between aircraft and drones (unconfirmed sightings, really) and interference with disaster relief operations.
Yet the FAA could point to no actual collisions or deaths associated with drones, nor to any use of a drone for terrorist purposes. What’s more, the rapid growth in drone ownership was hardly unpredictable—Congress, after all, legislated on the subject three years before the FAA awoke to the problem. What is more likely is that FAA bureaucrats wanted to stake a regulatory claim in the drone space and wanted to do it without the bother of involving the public, which is exactly the sort of conduct the Administrative Procedure Act was designed to hinder.
Will the courts look favorably upon the claims asserted in the lawsuits that have been filed by TechFreedom and the Maryland drone owner? Courts have historically been highly deferential to agencies’ interpretations of their own power, allowing them wide latitude in issuing regulations when ambiguities in the underlying law exist.
While an earnest reading of the various statutes at issue here would clearly seem to cut against the FAA’s registry, that does not guarantee victory for TechFreedom or the Maryland owner. History demonstrates that a judge may find it easier to simply declare the law ambiguous and grant the agency his stamp of approval, rather than overturn the registry.
Drone owners and the general public, though, should hope for a different outcome. And beyond the courts, Congress should not shirk its duty to hold the FAA, and indeed every federal agency, accountable to the law and the public.
The FAA has rushed a regulatory scheme that serves no valid purpose, exposes hundreds of thousands of people to outrageous criminal penalties, and runs counter to the law.
