By: Barbara E. Lichman, Ph.D., J.D.

On July 6, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) conclusively rejected a comprehensive challenge to the authority of the Federal Aviation Administration (“FAA”) to promulgate regulations governing that subset of unmanned aircraft systems (“UAS”) defined in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95 (codified at 49 U.S.C. § 40101, note) (“FMRA”), as “model” aircraft, i.e., those “flown for hobby or recreational purposes.”  FMRA, § 336(c)(3).

In Taylor v. FAA, D.C. Cir. No. 16-1302, the court upheld FAA regulations implementing FMRA § 336, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed.Reg. 42064 (June 28, 2016), which effectively subjects small UAS (up to 55 pounds, FMRA, § 336(c)(3)), to similar, if not identical, safety standards to those applicable to commercial UAS.

For example, newly promulgated FAA regulation 14 C.F.R. § 101.41 mirrors the five operational criteria set forth in FMRA § 336 that a model aircraft must meet to be exempt from additional FAA regulation. Those include:

(a) The aircraft is flown strictly for hobby or recreational use;

(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(c) The aircraft is limited to not more than 55 pounds …;

(d) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(e) 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.

In addition, new regulation 14 C.F.R. § 107 sets forth additional restrictions on the operation of model UAS, applicable only to aircraft that do not meet the five critical “safe harbor” criteria.  These additional restrictions include: airspace restrictions, remote pilot certification, visual observer requirements, and operational limits.  See 14 C.F.R. §§ 107.33, 107.37, 107.41, and 107.61.

Based on the face of the statute and proposed rules, the court struck down each of petitioner’s challenges like rubber ducks at a carnival.  It first found that petitioner’s challenge to 14 C.F.R. § 101.41, as inconsistent with FMRA § 336(a), failed, because § 101.41 does not, as claimed, attempt to regulate model aircraft, but, rather, simply implements the “safe harbor” criteria set forth in FMRA § 336 that protect the “safe” model UAS from further regulation.

The court similarly rejects petitioner’s second claim that the restrictions in Part 107 further impermissibly restrict model aircraft operations, because Part 107 does nothing more than clarify the distinction between those UAS that meet the § 336 safety criteria, and those that do not.

Finally, petitioner argues that FAA lacks statutory authority under Part 107 even to regulate model aircraft that do not comply with the five safety criteria in Part 101 and FMRA § 336, based on FAA’s previous regulatory interpretation of the scope of UAS regulation.  While the court admits that its previous decisions have acknowledged FAA’s then-applicable interpretation, the court also points out that the FAA regulations at issue arise, not from prior statutes, but from a completely new statute, FMRA, not in existence at that the time of the prior interpretations, making FAA’s previous statutory and regulatory construction of the scope of model UAS regulation obsolete.

In short, FAA’s rules governing the operation of model UAS in the national air transportation system have withstood judicial scrutiny, and are thus applicable to anyone out there tempted to regard operation of a model UAS as merely an unregulated recreational activity.

Source: Aviation & Airport Development Law News