The United States Court of Appeals for the District of Columbia Circuit has just released an important decision in the case of Taylor v. FAA, regarding regulation of unmanned aircraft operated for recreational purposes.
Before discussing the Court’s ruling, a little background is necessary. Prior to 2012, the FAA had taken the position that it would not apply the Federal Aviation Regulations to hobbyists flying model aircraft. That changed in 2012, when the Congress passed the FAA Modernization and Reform Act. In that Act, the Congress placed all unmanned aircraft into two categories. The first are “model aircraft,” which are flown for “recreational purposes,” “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization” (such as the Academy of Model Aeronautics). Pursuant to Section 336 of the Act, the FAA is not permitted to regulate these operations, but is permitted to take enforcement actions against persons who endanger the national airspace system. The second category established by the Act is essentially “all other unmanned aircraft.” Pursuant to the statute, the FAA has taken the position that if you don’t meet the requirements of Section 336, then you must comply with the relevant Federal Aviation Regulations regarding the operation of civil aircraft, which are found in 14 C.F.R. §107.
Mr. Taylor, however, argued that in addition to these two categories, there is a third category that is beyond all FAA regulations, which the Court defined as “non-section 336 model aircraft.” This would include anyone who purchased a recreational unmanned aircraft and flew it, but did not do so in accordance with the programming of a community-based organization. Under Mr. Taylor’s argument, the FAA’s decision to treat these “non-section 336 model aircraft” the same as commercial UNMANNED aircraft, and requiring full compliance with Part 107, was arbitrary and capricious.
The Court disagreed, holding that, regardless of how recreational flyers were treated by the FAA prior to 2012, the Congress completely changed the existing legal framework when it passed the Modernization and Reform Act. By specifically defining Model Aircraft in the context of a five factor test that must be met, Congress implicitly acknowledged that certain recreational flyers would not meet the test, and that these people would be subject to FAA regulation. In addition, the Court agreed with the FAA that it was rational to regulate the “non-section 336 model aircraft” under the same set of rules that apply to commercial unmanned aircraft, as there was nothing that differentiated the risks from unmanned aircraft operations by the two groups.
The Modernization and Reform Act of 2012 was aimed at the safe integration of unmanned aircraft into the national airspace system. Congress agreed that it was not appropriate to regulate hobbyists who fly model aircraft so long as they were part of, and followed, one of the comprehensive safety codes promulgated by established community-based organizations, such as the Academy of Model Aeronautics. For everyone else, Congress felt it was necessary that the FAA establish a regulatory system to govern when and how they fly. The Court’s ruling correctly recognizes that creating a third class of hobbyists who are completely unregulated and who follow nothing but their own instincts, regardless of how little training or experience they might have, would completely destroy the framework Congress established.
So for all of the unmanned aircraft operators, either follow Part 107 or Section 336, there is no “third way.”