Is the FAA’s Drone Registration Program Legal?

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Jan Stumpf of Ascending Technologies controls an Intel AscTec Firefly drone during a flight demonstration at the House Commerce, Manufacturing and Trade subcommittee on Capitol Hill in Washington. REUTERS/Gary Cameron

On Tuesday, the Federal Aviation Administration (FAA) took a monumental step in reining in the rapidly growing drone market with a website for owners to register their drones. The FAA only took two months to launch the program since its plan for drone registration to set up the online portal, a miraculous feat for any federal agency.

But is all this legal? Since its initial announcement in October, the FAA’s ambitious plan was pockmarked with unanswered questions about enforcement and practicality. Now some aviation attorneys are arguing that the entire registration process stands on faulty legal grounds, highlighting the larger quandary government agencies face when trying to keep pace with new technology.

“The FAA is short-circuiting the entire regulatory process,” Florida-based drone attorney Jonathan Rupprecht tells Newsweek. While Rupprecht believes the registration idea is “great,” especially for generating revenue for the FAA through the $5 registration fee, he believes FAA’s recklessness in pushing it through may land the entire registration program in a legal battle and put the entire registration policy on hold.

Rupprecht believes the FAA has circumvented two important clauses in the 1946 Administrative Procedure Act (APA) and the 2012 FAA Modernization and Reform Act.

Under the APA, all federal agencies creating new regulation needs to run through a “notice and comment” phase. In a normal notice and comment, agencies publish its regulation in the Federal Register, the public is then given an opportunity to comment on it and the FAA publishes a final rule with the feedback, which can take several months and even years. But the FAA bypassed all this using a “Good Cause” exemption, arguing the registration regulation was important and urgent enough to be implemented as quickly as possible.

“The public interest served by the notice and comment process is outweighed by the significant increase in risk that the public will face with the immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead,” writes the FAA in its interim final rules report.

To highlight that risk, FAA says that there were over 1,100 reports on “unauthorized and potentially unsafe UAS (unmanned aircraft system) operations” in 2015, along with seven specific incidents of drones behaving badly. But Rupprecht argues that these incidents aren’t good enough justifications to invoke an emergency; law enforcements were able to find the owner—despite all these drones being unregistered—in all but one of the seven cases. “There’s a lot of puffery to make it sound like it’s much worse than it is,” says Rupprecht.

Another legal problem Rupprecht raises—which may be a bigger deal than the Good Cause exemption but also drags the entire conversation into nitpicking legalese—is the direct violation of Section 336 of the 2012 FAA Modernization and Reform Act, which prohibits the FAA from creating any new rules and regulations regarding model aircrafts. The FAA argued in the report that the registration program is allowed as a complement to existing regulations on model aircrafts, which Rupprecht believes is the FAA bending words to fit with its agenda.

“While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements,” the FAA argues. “This action simply provides a burden-relieving alternative that [drone] owners may use for aircraft registration.”

All these legal gray areas may be brought up in court if—and Rupprecht believes it’s more a matter of when—a person or organization decides to take the FAA to court after being caught flying an unregistered drone. The FAA has set the maximum punishment for flying an unregistered drone to be three years in jail or $250,000 in fines. But considering local enforcement will be the boots on the ground to identify unregistered drones and arrest its owners, the severity of punishment may differ wildly from state to state, county by county.

“When the FAA lays the new punishments on the first guy, it will be coming up in the courts,” believes Rupprecht. “We really need to think about local authorities on this issue because they are carrying all the slack.”

Other drone attorneys were slightly more sympathetic to the FAA and believed Congress needed to deal with this with more urgency.

“The FAA regulations right now just aren’t ready for drones,” says Orlando-based attorney Moses DeWitt. “I think we’ll see federal regulations similar to cars. The government for now is trying to keep everything at bay until regulations do roll around.”

The Senate currently has a bill called the Consumer Drone Safety Act in the works but it will not be dealt with until next March when Congress reauthorizes the FAA. Rupprecht also hopes Congress will take action, especially in clarifying Section 336 so that the FAA is not in any violation. But he fears the circumventions have already delegitimized the FAA in the eyes of drone enthusiasts and manufacturers.

“The FAA is telling them ‘do as I say, not as I do,’” Rupprecht says. “It is going to look like they are rogue operators.”

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