Attorney Challenged The FAA's Registration Policy

Opening arguments in the case Taylor vs. Huerta were heard last week, and the judge was apparently not impressed by the arguments made by the agency.

The case was brought by Maryland Attorney John Taylor, who contends that the FAA did not follow proper procedure when it implemented the registration database just before the holidays in 2015, and that it ignored Section 336A of the FAA Modernization Act which prevents the agency from enacting new laws regarding model aircraft.

Part 48 of the FARs appears to be a new rule, according to Taylor.

I section 336, Congress stipulated that "Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational use;…".

Since recreational drones and model aircraft are required to be included in the registry, Taylor argued that Part 48 is a new rule, and the agency violated Sect. 336 when it established the registry and required operators to register their aircraft.

Dronelife reports that the FAA says Part 48 is not a new rule, that drones and model aircraft are "aircraft" and have always required registration. The online database was simply a convenience set up for the government for that purpose. The agency said that just because drones and model aircraft had not previously been included in the interpretation of Part 47, which covers registration, it did not mean that such registration was not required. The FAA argued before the judge that the agency has always had the ability to "exercise discretion with regards to enforcement."

However, when the FAA attorney stumbled over the words in Sect. 336, the judge reportedly said "You're just making stuff up ... that's not what the statute says."

The judge also said the FAA's argument was "very strange to read. I wouldn’t write anything like that… I’d be laughed out of the business.”

The judge also discounted the argument from the FAA that 700,000 drone operators and model airplane pilots had registered their aircraft. "That’s a policy argument," he said. "The fact that the thing you’re doing has good effect doesn’t mean that the thing is lawful."

FMI: Full Article