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Recreational UAS Registration Rule Struck Down

May 22, 2017

On Friday, May 19, 2017, the D.C. Circuit Court of Appeals struck down FAA’s registration rule for recreational unmanned aerial system (drone) users, also called model aircraft.

In 2012, Congress passed and the President signed the FAA Modernization and Reform Act, stating that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” The Act defines “model aircraft” as “an unmanned aircraft that is – (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” FAA’s so-called Registration Rule was adopted in 2015 to stem ever-increasing UAS aviation safety concerns. It required all small UAS users, including recreational users, to register with the FAA. Failure to register was a crime punishable by up to three years in prison.

The Court said “statutory construction doesn’t get much simpler. The Registration Rule is unlawful as applied to model aircraft” because it is contrary to the specific statutory prohibition.

A challenge was also made to FAA’s Advisory Circular 91-57A which prohibited model aircraft from flying within certain Flight Restricted Zones without authorization, including Washington’s restricted airspace. The Court said the challenge to the Advisory Circular was not timely because it was not brought within 60 days of the order’s issuance as required by law. Given the Court’s reading of the Act, however, enforcement of such flight restrictions is left in serious doubt.

About 760,000 hobbyists have registered model aircraft since 2015 and it is estimated another 2.3 million will be sold this year and 13 million by the end of 2020. Commercial operators from photographers to oil pipeline and cellphone tower owners are expected to buy another 10 million through 2020.

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