If you are a drone enthusiast, you have probably heard about the outcome of Taylor v. FAA, the case that has held that small drones should be treated like model aircraft, thereby allowing people to operate them without registration. In 2012, Congress passed the FAA Modernization and Reform Act, which told the FAA not to create a rule or regulation governing model aircrafts that met certain requirements. In 2015, the FAA created a regulation governing unmanned aircraft, including small hobby drones that are basically small toys or flying cameras operated by recreational users. John Taylor, with the help of aviation attorney Jonathan Rupprecht, Esq., sued, and the D.C. Circuit agreed with Taylor, vacating the registration regulation as applied to the Congressionally-protected Section 336 model aircraft category.
Forbes reached out to Rupprecht to learn what he believes this decision really means for the industry going forward. Here is what he shared:
- The FAA Will Slow Things Down.
“The FAA is naturally slow at getting things done,” Rupprecht explains. How slow? “The FAA started the rulemaking process for commercial drone regulations in 2009 and those regulations finally went into effect in 2016. Now, if anyone gets upset at their lack of progress, the FAA will just say they are trying to clean up the current bureaucratic mess without acknowledging that it was of their own making. Exacerbating the slowness, the FAA is being extra careful when trying to create new regulations for fear of treading on legal landmines in the laws regarding model aircraft.” Rupprecht goes on using strong language when he says, “The FAA did multiple illegal things during the fall of 2015.” However, he continues, “The court ruled on one of these issues, but legal landmines are still out there for the FAA to step on in future rulemakings.The key take-away from this is that the FAA will not be moving fast to create new or amended regulations benefiting commercial or model aircraft flyers.”
- Future Rulemakings Will Be Delayed
The FAA is currently working on sets of regulations to allow for drone flights over people, at night, and beyond the visual line of sight of the remote pilot in command. “The FAA was betting that nothing would change. The big problem now is that President Trump issued an executive order, which requires for every 1 regulation created, 2 regulations must be repealed. So in effect, any new regulation takes 3x the amount of effort to gain traction, and you need two sacrificial regulations!” Rupprecht notes.
“The FAA had a great opportunity to sacrifice Part 48 and Part 101 and uphold the rule of law by following Section 336 prohibitions, make the safe Section 336 flyers happy, and make the commercial operators happy by getting out of commercially beneficial regulations. I don’t know if they can now use part 48 sacrificially, and Part 101 in the Taylor II lawsuit is potentially about to get vacated as well! Additionally, the commercially beneficial proposed regulations are all going to need to be updated to harmonize with the new case ruling.”
He concluded, “Basically, for commercial operators, night, over people, or extended line of sight operation regulations are not coming out soon because of rulemaking ‘bandwidth’ issues so businesses needing to do these types of operations in the near term should obtain part 107 waivers.”
- It Caused Confusion
Rupprecht says that he has seen many misleading and false headlines about the FAA and its regulation created as click-bait. He blames these for the consumer confusion he is seeing in the drone marketplace. “Flying recreationally, for fun, as a hobby, or whatever synonymous term you might want to use, is NOT always the same as Section 336 protected aircraft. For example, one of the elements of a Section 336 protected model aircraft is that it must be flying according to community-based safety guidelines. Many have never even read a safety guideline from a community based organization and would be very surprised to find out that while their flight was recreational, it did not fall under the protections of Section 336.” He goes on to warn that, “most of the drone events that make the news (flying near airports recklessly, crashing into the stands of a baseball game, etc.) are NOT Section 336 protected aircraft! The FAA can regulate and prosecute those dangerous and unsafe people all day long; furthermore, Section 336 (b) gives the FAA the ability to prosecute even the protected Section 336 aircraft —if they are endangering the safety of the national airspace.”
So, in short, “everyone, including media and industry groups, should understand the distinction between 336 protected recreational flyers and non-336 protected recreational flyers so that discussion or debate can be profitable.”
- The Confusion Will Waste Valuable Resources While Chasing the Wrong Rabbit
Rupprecht is concerned about public push back. “With the flurry of misinformation, some groups, primarily commercially focused, came out against the ruling and in support of registration,” Rupprecht states, “There have been indications that they will work to undo the protections put in place by Congress protecting Section 336 model aircraft – which by definition have to be following safety guidelines! This strikes me as a waste of valuable resources, time, and money to undo the protections of the by-definition-safe Section 336 aircraft. Meanwhile, the commercial constituents of these organizations are losing jobs to illegal and unsafe commercial operators! Both the 336 protected recreational groups and legal commercial groups need to have a combined interest in seeing the FAA go after the unsafe recreational flyers, and after the illegal commercial flyers that are taking jobs away from the commercial remote pilots trying to follow the law.”
The key take-away is that “Recreational and commercial flyers should be pressuring their trade groups/organizations to not attack each other but to work together with other safety-focused organizations to pressure the FAA to go after the unsafe recreational and illegal commercial flyers out there. Safe vs. unsafe, not commercial vs. recreational.”
- The FAA is Set Up for Another Court Case Loss.
Rupprecht points out that this decision is only part of the story. “There is a second case (Taylor II) which is pending, which is challenging the Part 101 model aircraft regulations. The recent ruling means that there is a good chance the FAA will lose Taylor II. There is the possibility that a second ruling will cause the industry to experience the same frenzy of inflammatory misinformation we just experienced all over again.”
What Does This Mean for The Future of Drone Regulations?
“Because of the second case, the FAA will slow down their rulemaking efforts to see what the ruling will be. Also, sets of regulations to allow for drone flights over people, at night, and beyond the visual line of sight of the remote pilot in command will also be slowed down by President Trump’s 2-for-1executive order.” Rupprecht says. “Additionally, if the FAA loses a second time, because of their own arrogance, confusion on the part of the media, as well as industry groups, will continue and result in more valuable resources being wasted on a problem due to a misunderstanding of the law being enflamed by the media.”