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

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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.