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Tue, Jul 10, 2018

D.C. Court Of Appeals Denies Petition To Review Taylor v FAA

Attorney John Taylor Had Challenged Registration Of Model Aircraft Under Drone Rules

The D.C. Court of Appeals has denied a petition for review of the FAA's rules concerning the registration of model aircraft under its drone registration rules.

Attorney John Taylor had challenged the registration of model aircraft citing Section 336 of the FAA Modernization and Reform Act of 2012. The section provides that, notwithstanding any other provision of law regarding incorporation of unmanned aircraft systems into FAA plans and policies, the FAA (a component of the Department of Transportation) “may not promulgate any rule or regulation regarding a model aircraft” that satisfies the following five operational criteria:

  • the aircraft is flown strictly for hobby or recreational use;
  • the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
  • the aircraft is limited to not more than 55 pounds
  • the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
  • when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower . . . with prior notice of the operation.

Section 336 also provides, however, that nothing in it “shall be construed to limit the authority of the [FAA] Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”. In short, section 336’s statutory Special Rule creates a safe harbor from FAA regulation for those model aircraft that meet its five operational criteria. That safe harbor itself has an exception for dangerous model aircraft operations, the ruling states.

The court determined that "There is nothing to support Taylor’s contention that, notwithstanding the above, the Modernization Act was intended to codify the alleged prior understanding that the FAA could not regulate any recreational model aircraft. To begin, we note that Taylor has cited neither statutory language nor legislative history that indicates such an intent. It is true, as Taylor notes, that “Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). But even if we were to accept Taylor’s claim regarding the FAA’s interpretation of pre-existing statutory provisions, Congress did not re-enact a statute without change here. To the contrary, it enacted a new statute with entirely new provisions regarding the regulation of unmanned aircraft."

The ruling states that "although we hold that the FAA has authority to apply the part 107 requirements to recreational model aircraft outside the safe harbor (that is, to non-section 336 model aircraft), we do not decide whether the agency may apply any other regulations to these aircraft. We do not read part 107 -- or anything else that the FAA promulgated in the Small UAS Rule that is the sole subject of the petition before us -- to make other regulatory provisions applicable to these recreational model aircraft, except for those provisions expressly cross-referenced in the rule. At oral argument, the FAA again agreed with this reading. If the FAA were to apply 11 other, pre-existing regulatory provisions to non-section 336 model aircraft, that decision may be subject to a separate challenge."

(Image from file)

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