Those of you who are regular readers of this blog are aware that there has been a federal lawsuit pending before the DC Circuit challenging the validity of the FAA's registration system for model aircraft. After oral argument in March, we predicted that the regulation appeared to be in serious trouble, and the FAA should start considering its "Plan B." Well, if the FAA has a Plan B, now is the time to dust it off, because the D.C. Circuit just issued a 10 page opinion striking down the registration requirement.
In a unanimous decision, the three judge panel held that the registration regulation was barred by the Special Rule for Model Aircraft, which is contained in Section 336 of the FAA Modernization and Reform Act of 2012. Section 336 provides that the FAA "may not promulgate any rule or regulation regarding a model aircraft." The Court noted that the FAA's new registration rule used the exact same definition for "model aircraft" as was contained in Section 336, and as a result, it was inescapable that the rulemaking was improper:
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 Panel rejected the FAA's argument that the registration rule was permissible because it was related to the preexisting statutory requirement that all aircraft be registered. The Court held that the FAA had gone far beyond just enforcing the aircraft registration statute by creating a completely new system for compliance, a new fee structure, and a new system of penalties.
The FAA also argued that the regulation was proper based on the provision of the FAA Modernization and Reform Act that required the FAA to act to "improve aviation safety." The Court disagreed, holding that this general directive could not overcome the specific limitations of Section 336.
The panel declined to consider Plaintiff's appeal of Advisory Circular 91-57A on the grounds that it was untimely. Appeals of final FAA decisions must be brought within 60 days of issuance, and the Plaintiff's notice of appeals was filed almost a year after the advisory circular was issued.
The FAA's decision leaves open several questions. What should the FAA do with all of the registration data it collected? Should the FAA refund the money that was improperly collected? Is there a way for the FAA to apply the general aircraft registration statute to model aircraft operators by using the existing paper registration system? The one thing the Court was clear on, however, was that the FAA's arguments in favor of registration should be addressed to Congress:
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.
With the new FAA reauthorization working its way through Congress this summer, we may not have to wait long for an answer.
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