Government Drone Registry Under Legal Fire

The FAA has rushed a regulatory scheme that serves no valid purpose, exposes hundreds of thousands of people to outrageous criminal penalties, and runs counter to the law.

Feb. 19 marked the final date that drone owners can register with the federal government to avoid being branded a felon by the Federal Aviation Administration (FAA).

As of now, all recreational drone owners whose quadcopters weigh more than 0.55 pounds – including those who owned drones before the registry went into effect on Dec. 21 of last year – face potential three-year prison sentences and $277,500 in combined civil and criminal fines if they fly their drones without first registering themselves with federal officials.

According to the FAA, these hobbyists and the drones they pilot pose grave threats to the national airspace. Only swift regulatory action backed up by draconian criminal sanctions could possibly safeguard the public from the dangers of these toy armadas.

That logic, though, has fallen on deaf ears outside the halls of the FAA. Model aircraft groups, such as the Academy of Model Aeronautics, advised their members to hold off on registering. Scholars and technology enthusiasts have denounced the policy for its chilling effect on innovation. My colleague, John-Michael Seibler, and I have pointed out that the FAA’s drone-owners’ registry will not accomplish any of its stated objectives to educate drone fliers, or deter and hold bad actors accountable.

Now, the registry is coming under attack in the courts. In December, a Maryland drone owner filed the first challenge in federal court. Now, the nonprofit group TechFreedom has filed suit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking judicial relief from the FAA’s burdensome registry.

TechFreedom’s case comes down to three arguments:

  1. The FAA acted unlawfully by issuing a new regulation because of the existence of a prior law expressly forbidding such action
  2. Existing aircraft registration statutes do not give the FAA authority to impose a drone owners’ registry
  3. The FAA “did not show good cause for dispensing with the Administrative Procedure Act’s notice-and-comment rulemaking process.”

All three arguments appear to have merit.

To the first point, in 2012, Congress passed the FAA Modernization and Reform Act, which contained sections dealing with “small unmanned aircraft systems” – what we colloquially call “drones.”

Congress mandated that the FAA come up with regulations governing the use of commercial drones – a mandate, incidentally, that the agency has utterly failed to comply with. But, section 336 of that law expressly forbade the FAA from issuing new rules governing drones flown for “hobby or recreational use.”

Congress, it seems, wanted recreational drone policy to be addressed at the state and local level; the FAA, meanwhile, wanted total federal control over drones. As a result, the FAA has essentially read section 336 out of the statute, pretending it does not exist so the agency can establish its registry despite Congress having denied it the authority to do so.

This leads directly to the second argument TechFreedom asserts: even if this explicit legislative prohibition did not exist, the FAA would seem to lack the authority to create this registry.

Federal law considers drones to be “aircraft” in the same category as a Cessna or a Boeing 747 (a ridiculous categorization which Congress would be wise to change). For decades, the FAA recognized the absurdity of requiring hobbyists to comply with aircraft registry laws and exempted them. In October, the agency changed its mind as a prelude to issuing its new drone regulations.

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