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DC Circuit Overturns Model Aircraft Registration, Tells FAA “Statutory Interpretation Does not get Much Simpler”

Those of you who are regular readers of this blog are aware that there has been a federal lawsuit pending before the DC Circuit challenging the validity of the FAA’s registration system for model aircraft. After oral argument in March, we predicted that the regulation appeared to be in serious trouble, and the FAA should start considering its “Plan B.”  Well, if the FAA has a Plan B, now is the time to dust it off, because the D.C. Circuit just issued a 10 page opinion striking down the registration requirement.

In a unanimous decision, the three judge panel held that the registration regulation was barred by the Special Rule for Model Aircraft, which is contained in Section 336 of the FAA Modernization and Reform Act of 2012. Section 336 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”  The Court noted that the FAA’s new registration rule used the exact same definition for “model aircraft” as was contained in Section 336, and as a result, it was inescapable that the rulemaking was improper:

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The Panel rejected the FAA’s argument that the registration rule was permissible because it was related to the preexisting statutory requirement that all aircraft be registered. The Court held that the FAA had gone far beyond just enforcing the aircraft registration statute by creating a completely new system for compliance, a new fee structure, and a new system of penalties.

The FAA also argued that the regulation was proper based on the provision of the FAA Modernization and Reform Act that required the FAA to act to “improve aviation safety.” The Court disagreed, holding that this general directive could not overcome the specific limitations of Section 336.

The panel declined to consider Plaintiff’s appeal of Advisory Circular 91-57A on the grounds that it was untimely. Appeals of final FAA decisions must be brought within 60 days of issuance, and the Plaintiff’s notice of appeals was filed almost a year after the advisory circular was issued.

The FAA’s decision leaves open several questions. What should the FAA do with all of the registration data it collected?  Should the FAA refund the money that was improperly collected?  Is there a way for the FAA to apply the general aircraft registration statute to model aircraft operators by using the existing paper registration system?  The one thing the Court was clear on, however, was that the FAA’s arguments in favor of registration should be addressed to Congress:

Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so.  Perhaps not.  In any event, we must follow the statute as written.

With the new FAA reauthorization working its way through Congress this summer, we may not have to wait long for an answer.

DC Circuit Overturns Model Aircraft Registration, Tells FAA “Statutory Interpretation Does not get Much Simpler”

The Aviation Symposium Webinar Series: The DHS SAFETY

We would like to offer our thanks for the huge turnout we had for our free webinar on DHS Safety.  For those of you who could not make it, we are providing a link to the full presentation so that you can listen at your leisure.

The Aviation Symposium Webinar Series: The DHS SAFETY

Aviation Risk Turbulence Increasing:

Mark Dombroff weighs in on the political and cultural clashes that are moving from the streets into airplane cabins. Click here to read more!

 

Aviation Risk Turbulence Increasing:

NTSB – Congratulations Vice-Chairman Sumwalt!!

With the election of President Trump, there was a great deal of speculation over how vacancies on the National Transportation Safety Board would be handled.  Would the new Administration want to shake things up at the NTSB as they have at other agencies or would there be continuity between the new nominees and the existing board?  The answer to that question is, at least for now, “steady as she goes.”

Earlier this morning, the Trump Administration announced that Robert L. Sumwalt III would be re-nominated as a Board member for another 5 year term.  In addition, Mr. Sumwalt is also designated as Vice-Chairman of the NTSB for the next two years.  Mr. Sumwalt has been a member of the NTSB since 2006, and previously served as NTSB vice chairman from 2006 to 2008. Prior to his time at the NTSB, Mr. Sumwalt was a pilot for 32 years, including 24 years with U.S. Airways.

The President’s action is clearly a vote of confidence in the way the NTSB has been handling its duties.  Congratulations Mr. Sumwalt, and here’s hoping your confirmation hearing is less contentious than all of the other ones held by the Senate this year.

NTSB – Congratulations Vice-Chairman Sumwalt!!

FAA/UAS – Judge to FAA “You’re just making things up.”

The federal lawsuit seeking to overturn the FAA’s model aircraft registration regulation passed a very important milestone last week.  A three judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument from the Plaintiff, John Taylor and the Federal Aviation Administration.

The main questions raised by Mr. Taylor in his suit is whether a model aircraft is an aircraft subject to FAA regulation and, if it is an aircraft, whether the model aircraft registration regulations are barred by Section 336 of the FAA Modernization and Reform Act of 2012, which states:

the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft . . . .

While the Court’s questions seemed to indicate an openness to Mr. Taylor’s argument regarding Section 336, there seemed to be deep skepticism over his claim that model aircraft are not a civil aircraft subject to regulation.  Under questioning, Mr. Taylor fell back on the argument that the FAA’s broad definition of unmanned aircraft is invalid because it would include paper airplanes and Frisbees.  The panel, however, pointed out that the registration regulation did not apply to Frisbees and paper airplanes, and Mr. Taylor admitted that the Court did not need to reach this argument to decide the appeal.

The FAA began its part of the argument by focusing on the purposes of the registration regulation, which are accountability and education.  The Court almost immediately interrupted and asked the FAA why Congress passed Section 336.  The FAA admitted that the statute was intended to bar the FAA from imposing new regulations on model aircraft, but argued that the statutory requirement that all aircraft be registered under Part 47 were preexisting requirements and not new regulations, and that the model aircraft regulation was simply building on this preexisting legal authority.  The panel was clearly troubled by this argument, with one judge calling the agency’s reading of the statute “bizarre.”  The FAA also argued that Congress made clear that it wants the FAA to enforce safety regarding unmanned aircraft, and that registration was a key part of that effort because it was the only way to identify violators.  The Court responded that these were good policy arguments, but that those were arguments that should be made to Congress.  As one judge noted, “the fact that the thing you are doing has a good effect does not mean that the thing is lawful.”

Finally, the Court questioned how the preexisting statutory requirement that all aircraft be registered could possibly justify a new regulation since Section 336 begins by stating “[n]otwithstanding any other provision of law . . . .” The FAA’s response to this queston was interrupted by one of the judges asking, “[w]here are you getting these words from, you’re just making things up.”  The judge then went on to say:

You know, I like my colleague to my right who says it’s a very perplexing statute but, you know, it is what it is, and judges get themselves in trouble when we start fooling around.  There are some judges that I can point to nationally who will say, well, this is not what Congress said.

This is what Congress said, and you have five, as Judge Wilkerson said, you have a frame, if the model that is within these five [requirements] you are done.  That’s that.  That is what Congress said.

Any appellate litigator will tell you that you can’t draw too many conclusions about who is going to win an appeal based on the questioning at oral argument.  However, it is also clear that the FAA had a bad day in Court, and those who thought that the regulations would be easily upheld should take some time to think about what “Plan B” might be for the unmanned aircraft registration system.

For those of you who want to listen to the full 30 minute argument, it can be found HERE.

FAA/UAS – Judge to FAA “You’re just making things up.”

Airline Symposium Webinar Series – Privileges in Accident Investigations for lawyers and Non-Lawyers

We would like to offer our thanks for the huge turnout we had for our free webinar on privilege issues in accident investigations.  For those of you who could not make it, we are providing a downloadable version of the slides, as well as a link to the full presentation so that you can listen at your leisure.

Airline Symposium Webinar Series – Privileges in Accident Investigations for lawyers and Non-Lawyers

UAS Insider Briefing

            You’re invited

UAS Insider Briefing

Thursday, June 1 2017
9:30 a.m.–4:30 p.m.

Dentons’ Washington, DC, office
Founders Conference Room
1900 K Street NW
Washington, DC 20006

RSVP

An Exclusive Program Focused on the Information You Need

What a difference a year makes! In 2016, nearly everyone thought they knew where drone laws and regulations were heading. Now, with Washington turned upside down, the future has become less certain. The issuance of new rules for drone flights over populated areas, which looked like a sure thing for early 2017, are in a holding pattern. With a federal hiring freeze in place and big budget cuts on the table, agency priorities are being reevaluated and refocused. In addition, Congress will have its own say on priorities as the FAA braces for another round of reauthorization fights.

While it is impossible to know where federal drone laws and policies are headed, it’s imperative to consider the possibilities. Even imperfect analysis is preferable to flying blind! This insider briefing will provide you with a thorough update on where we are, a roadmap for what we think the regulatory landscape will look like, and advice to help you thrive in this rapidly changing environment.

You will hear lively and informative discussions by officials from the FAA and the NTSB, experts from the UAS industry and leading aviation lawyers touching on all aspects of UAS operations and regulations, including:

  • Insider views on Congressional actives, a briefing on the FAA appropriations fight, and how you can position your company to take advantage of what is coming
  • Anti-drone technologies—how is the government acting to remove the numerous legal and regulatory obstacles to deploying these new technologies?
  • The Safety Act….the ultimate liability protection for your drone operation
  • How to get approval for what you can’t do under Part 107 (e.g., beyond visual line of sight operations and package delivery) and opportunities presented by the new administration
  • A mid-year review of changes in state and local drone laws
  • The nuts and bolts of buying and selling UAS services and other contractual, commercial and insurance issues
  • The current FAA regulatory landscape—where it’s going and how you can get a “seat at the table.”

Dentons’ UAS practice group includes attorneys and professionals who are well versed in FAA regulatory and enforcement issues, liability, risk management, insurance, commercial/contract issues, intellectual property, export control, government affairs and other legal issues involved in operating UAS in the commercial world.

Who Should Attend?

Any company that wants to be prepared for the future of the UAS industry

Cost

This program is free to attend, but seats are limited and must be reserved. Lunch will be provided to attendees.

Questions

Please contact Barbara Butler at +1 703 336 8704 or barbara.butler@dentons.com

UAS Insider Briefing

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

The FAA loves to collect data.  One of the statistics they have been monitoring for the past several years is the number of reported UAS sightings by manned aircraft.  The FAA just released its latest quarterly report, and the numbers are not good.

According to the FAA, there were a total of 474 UAS sightings over the three months covered by the new data, for an average of 158 sightings per month.  This compares to 443 sightings from the same period a year earlier.  While the new number is not dramatically worse, it certainly is no improvement.  The FAA is using the new numbers to emphasize that it is sending “a clear message that operating drones around airplanes, helicopters and airports is dangerous and illegal. Unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time.”  The FAA also reiterated that it “has levied civil penalties for a number of unauthorized flights in various parts of the country, and has many open enforcement cases.”

While the numbers themselves certainly tell a story, the underlying data makes for interesting reading.  The FAA has provided details of each of the 474 sightings in a spreadsheet that can be found HERE.  They range from the concerning:

“PRELIM INFO FROM FAA OPS: LAS VEGAS, NV/UAS INCIDENT/1918P/LAS ATCT ADVISED, HELO, WHILE S BOUND ALONG THE STRIP, REPORTED UAS OVER THE EXCALIBUR HOTEL AT 3,000 FEET. NO EVASIVE ACTION TAKEN. LAS METRO NOTIFIED.

UAS MOR Alert for LAS

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Sep 25, 2016 – 0218Z

A/C: (HELO)

Summary: CONFIGURATION TWO LANDING RWY 1L,1R DEPARTING RWY 7L ACFT WAS SOUTHBOUND ALONG THE STRIP WHEN HE NOTIFIED ATC OF A DRONE OVER THE EXCALIBUR HOTEL AT 3000FT. LAS NOTIFIED LAS METRO.

To the disturbing:

“PRELIM INFO FROM FAA OPS: IAH/UAS INCIDENT/1830C/HOUSTON TRACON ADVISED AMERICAN GENERAL AA5, REPORTED A NMAC WITH A BLACK UAS APPROXIMATELY 2 FT TALL WHILE W BOUND AT 2,500 FEET 11 WSW IAH. ACFT TURNED LEFT TO AVOID UAS. FBI NOTIFIED.

UAS MOR Alert for I90

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 3, 2016 – 2330Z

A/C: (AA5)

Summary: Pilot advised he took evasive action to avoid a stationary or slow moving north bound UAS. ACN.”

To the frightening:

“PRELIM INFO FROM FAA OPS: PITTSBURGH, PA/UAS INCIDENTS/0013E/EC135, REPORTED TWO UAS ONE RED AND THE OTHER WHITE AT 2,500 FEET APPX. 5.5 MILES SE OF PITTSBURGH ARPT. AN IMMEDIATE CLIMB WAS REQUIRED TO AVOID THE UAS.

UAS MOR Alert for PIT

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 24, 2016 – 0413Z

A/C: (EC135)

Summary: ACFT IN VFR FLIGHT, AT 2500 MSL, FROM DOWNTOWN PITTSBURGH ENROUTE TO 4G4. APPROXIMATELY 5.5 MILES SE OF BVI AIRPORT, THE PILOT REPORTED TWO DRONES IN FRONT OF AIRCRAFT, AT 2500 MSL, WHICH REQUIRED AN IMMEDIATE CLIMB TO AVOID THE UAS. THE HELICOPTER CLIMBED AND LEVELED AT 3500. WHEN PIT REQUESTED MORE INFO, THE PILOT STATED HE OBSERVED TWO “”””DRONES””””, ONE UAS WAS RED AND THE OTHER WHITE, AND THEIR POSITION WAS 2.5 MILES FROM BEAVER FALLS CITY, “”””ON THE WEST SIDE OF THE OHIO RIVER””””. AT 0418Z, DISPATCH CALLED PIT APCH TO REPORT THE INCIDENT.  HELO 14 RESUMED THE FLIGHT TO 4G4, AND DID NOT REQUIRE ANY FURTHER ASSISTANCE.

The biggest take-away from this data is that the FAA’s job of educating drone users will never end.  No matter how good the education program was last year or last month, there is a continuous flow of new entrants to the market.  Everyone needs to keep their guard up, and continuously promote best practices.  Hopefully, a year from today, the numbers will be going down, instead of up.

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

You’re invited – Aviation Symposium Webinar Series: Legal Privileges in Accident Investigations for Lawyers and Non-Lawyers

You’re invited

Aviation Symposium Webinar Series

Thursday, March 16, 2017
1–2:30 p.m. ET

Webinar – no charge

RSVP

Legal Privileges in Accident Investigations for Lawyers and Non-Lawyers

Please join us for unique webinar aimed at lawyers and non-lawyers alike. We will address a wide range of questions surrounding attorney-client privilege, work product privilege and self-evaluative privilege. Topics will include:

  • What these legal privileges are—and what they’re not
  • How to preserve them and how to lose them
  • How the National Transportation Safety Board’s process interacts with privilege issues
  • Important considerations when writing emails, reports and memoranda
  • Who owns legal privilege

This webinar, like all Aviation Symposium Webinar Series programs, is free of charge.

Questions

Please contact Barbara Butler at +1 703 336 8704 or barbara.butler@dentons.com.

 

You’re invited – Aviation Symposium Webinar Series: Legal Privileges in Accident Investigations for Lawyers and Non-Lawyers

FAA – WORD ON THE STREET . . . PEGGY GILLIGAN TO RETIRE

Planely Spoken prides itself on avoiding rumor, gossip, innuendo, or other forms of “fake news.”  On the other hand, sometimes the word on the street, or in these case, the “word on the runway,” is so compelling that we have to pass it on.

It appears that Peggy Gilligan, the FAA’s Associate Administrator for Aviation Safety, has informed the FAA that she is retiring.  According to sources, her resignation email stated:

I have had the great good fortune to be a part of the FAA and the Aviation Safety organization during some of the most challenging — and most successful — times . . . . I am proud to have been a part of the safest time in this community and will watch closely as all of you build on the legacy we inherited from those who came before us. Thank you for letting me lead this outstanding organization and thank you for all you do for aviation safety every day.

Peggy Gilligan became Associate Administrator for Aviation Safety on January 5, 2009 after serving as the Deputy Associate Administrator in that organization for 14 years. In that position, she leads the organization responsible for setting, overseeing, and enforcing safety standards for all parts of the aviation industry – airlines, manufacturers, repair stations, pilots, mechanics, air traffic controllers, flight attendants, and any person or product that operates in aviation. These programs have a direct impact on every facet of domestic and international civil aviation safety.

The Aviation Safety programs under her direction involve more than 7,000 employees located in Washington headquarters, regional and directorate offices, and more than 125 field offices throughout the world. According to the FAA, she oversees an annual budget of more than $1 billion.

Anyone who has worked in aviation for any length of time has been impacted by her work.  The industry will miss her!

FAA – WORD ON THE STREET . . . PEGGY GILLIGAN TO RETIRE