Recreational Drone Registration Rule Overturned, Highlighting FAA Safety Oversight Gap

Transportation Update

Date: May 30, 2017

A federal appeals court has struck down the Federal Aviation Administration’s (FAA) rule requiring hobbyists to register their model aircraft. Model aircraft are unmanned aircraft systems (UAS) capable of sustained flight and flown for hobby or recreational purposes within visual line of sight. The court’s decision highlights an important gap in the FAA’s safety oversight of UAS.

According to the court, the FAA’s rule requiring registration of all UAS conflicts with Congress’s express exclusion of model aircraft from the FAA’s regulatory purview. In the FAA Modernization and Reform Act of 2012, Congress directed the FAA to commence certain regulatory activities pertaining to UAS, but specifically stated that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”[1] In 2015, however, the FAA responded to an escalation in safety incidents involving UAS by issuing a rule providing specific requirements for registering all UAS, including model aircraft.

The court’s decision highlights what some perceive as Congress’s miscalculation of the safety risk posed by model aircraft. In the FAA Modernization and Reform Act, Congress adopted the FAA’s historical policy of leaving the regulation of model aircraft safety to model aircraft organizations. The FAA had adopted this policy during an era when model aircraft operations often involved members of model aircraft groups meeting at designated areas to fly their models in a small block of airspace. The recent proliferation of small, affordable UAS has rapidly expanded model aircraft operations, often by people who have no aviation experience and are not operating in an area designated for model aircraft flights. Moreover, guidelines that model aircraft organizations have promulgated are not as extensive as the FAA’s commercial UAS rules. Thus, many argue that the FAA’s traditional policy does not adequately address the risk posed by modern model aircraft operations and they should be subject to rules similar to those that apply to commercial UAS operations.

While this decision may motivate many groups to lobby Congress to give the FAA authority to regulate model aircraft, Congress probably will not act in the near term. Airlines, airline pilot unions and other groups have expressed concerns over the safety risk that model aircraft operations pose. These groups may point to this decision as a reason for Congress to permit the FAA to regulate model aircraft. Nevertheless, given current legislative priorities and the Trump administration’s aversion to new regulation, model aircraft regulation probably is a low priority for Congress.

The FAA is considering whether to appeal this decision to the Supreme Court. The decision does not impact the FAA’s requirements for registering commercial UAS.


For more information, please contact:

Jason D. Tutrone

Brent Connor

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[1] FAA Modernization and Reform Act of 2012 § 336, 49 U.S.C. § 40101 note.