John Taylor defeats FAA Registration Rule For Model Aircraft
Congratulations to John Taylor, insurance lawyer and model aircraft enthusiast.
He took the FAA and Department of Justice to court over the 2015 model aircraft registration ruling and won!
To date, some 770,000 people have paid $5 to the FAA. Will refunds be forthcoming?
In 2012 Congress sort of said hands off model flying with Section 336 of the FAA Modernization and Reform Act of 2012. That statute prohibited the FAA “from promulgating any rule or regulation regarding model aircraft.” John Taylor argued that the FAA was doing exactly that with the registration requirement. The court agreed.
“The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act.”
I will post some of the legal speak below and get Loretta Alkalay and Jonathan Rupprecht to unpack it in a way I can understand.
We spoke about this case with AMA President Rich Hanson two weeks ago on our hangout. We asked why the AMA was not helping Mr Taylor financially with his fight. He has received support from the community but the large players stayed clear. You can watch the hangout and draw your own conclusions.
I am of the opinion that John A Taylor should never need to buy a beer at a model aircraft event again!
We had a chat with John about the court victory:
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 FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103.
But the FAA has never previously interpreted that registration requirement to apply to model aircraft.
The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.
We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification – USCA Case #15-1495 Document #1675918 Filed: 05/19/2017 Page 7 of 10 8 on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630.
In short, the Registration Rule is a rule regarding model aircraft. 2 Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). 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. In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft.
Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft. 2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.
