On Friday, May 19, 2017, a federal appellate court struck down an integral part of the FAA’s attempt to safely monitor small unmanned aerial systems (“sUAS”) and integrate them into the national airspace. The D.C. Circuit found that the FAA’s Registration Rule—which was promulgated in December 2015 and subject to an expedited rulemaking process—directly conflicted with the FAA’s enabling statute, the FAA Modernization and Reform Act of 2012 (the “2012 Act”).
In its decision, the D.C. Circuit noted that the FAA’s mandate is “to ‘promote safe flight of civil aircraft’ and to set standards governing the operation of aircraft in the United States.” (Slip. Op. at 3 (citing 49 U.S.C. § 44701(a).) It also acknowledged that “aircraft” must be registered before they can legally operate in the national airspace. (Id. (citing 49 U.S.C. §§ 44101, 44103.) On top of these two uncontroversial points, the D.C. Circuit also noted that “the FAA has not previously interpreted the general registration statute to apply to model aircraft.” (Id.) And the D.C. Circuit acknowledged that the 2012 Act expressly carved out model aircraft from the FAA’s rulemaking authority:
In short, the 2012 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 or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.
(Id. at 7.) Indeed, as we noted in our original analysis of the 2012 Act, “it is unclear how to reconcile the plain text of Section 336 of the 2012 Act with the FAA’s registration scheme.”
As a result of this ruling, especially given how tied the ruling is to a plain reading of the statutory text of the 2012 Act, it seems unlikely that the FAA will be able to resuscitate the Registration Rule as it applies to model aircraft. In a press release issued on the same day as the ruling, the FAA said that it is “carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations [and that 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.” The FAA is considering its options, but it is likely that it would be far more fruitful for the FAA to seek assistance from Congress than it would be to seek certiorari from the Supreme Court.