Appeals Court Upholds FAA Amateur Drone Authority

More drone regulation is on the way—and not just from the FAA. Earlier this summer, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the FAA’s authority to regulate amateur drone use, denying a petition to review that authority filed by drone hobbyist John Taylor. Taylor had previously and successfully argued in federal court that the FAA’s amateur drone registration requirement was illegal under the 2012 FAA reauthorization act, a legislative loophole Congress closed by Congress last year.

In denying Taylor’s latest petition and writing for the Court of Appeals, jJudge Merrick Garland, stated, “Because the rule is within the agency’s (FAA’s) statutory authority and is neither arbitrary nor capricious, the petition for review is denied.” However, the Court did acknowledge that it was clearly Congress’s intent under the 2012 law to exempt certain amateur drone operators from regulatory burden provided they operated safely.

The Court’s ruling clears the way for the release of new, long-anticipated amateur drone rules from the FAA that are expected to include positive identification requirements. The FAA and various law enforcement and security agencies have long held that registration and positive identification are essential components of safely integrating all UAS into the National Airspace System and discriminating known users from criminals and terrorists. Federal policy makers have long -viewed “Section 336,” the part of the law that exempts model aircraft from FAA rulemaking, as a stumbling block to enacting more wide sweeping drone legislation—including mandatory remote I.D. and tracking for all UAS—-- and are seeking its repeal, a move that has growing, bipartisan support. 

Threat Mitigation

The potential use of drones by bad actors has prompted the introduction of a bipartisan U.S. Senate bill, S. 2836, the “Preventing Emerging Threats Act of 2018.” The bill appears to be on the fast track to approval, reported favorably out of the Homeland Security and Government Affairs Committee in mid-June, less than one month after its introduction. The bill permits the Department of Homeland Security (DHS) and the Justice Department (DOJ) to track, disrupt, damage, seize, seize control of, and/or destroy unmanned aerial vehicles that either the DHS or DOJ deem a security threat and intercept UAS communications consistent with the Fourth Amendment (protections against unreasonable search and seizure). The bill would circumvent existing aviation law under Title 49 of the U.S. Code by vesting any such authorities of the U.S. Department of Transportation or the FAA in the Attorney General or the DHS secretary. Currently, DHS and DOJ have limited scope authority to protect its own sites or designated venues—like the Super Bowl. The bill would also provide DHS and DOJ with the means for testing drone- defeating technology on a broad scale. 

The bill already has drawn a firestorm of criticism from the American Civil Liberties Union and concern from UAS trade groups that, once passed into law, it be narrowly applied and opposed to blanketly applied as not to impair commercial operations. However, that seems unlikely. Sen Ron Johnson (R-WI), the bill’s sponsor, called it “just a minimal first step.” Passage seems likely as Johnson’s strategy appears to be to attach it to the National Defense Authorization Act. Top FAA officials already have publicly endorsed the bill.