April 22, 2018

April 20, 2018

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D.C. Circuit Strikes Down FAA Registration Rule for Recreational Drones

On May 19, 2017, the U.S. Court of Appeals for the D.C. Circuit invalidated a Federal Aviation Administration regulation that required the owners of recreational drones—unmanned aircraft system (“UAS”)—to register with the agency. The court held that the regulation violated the same law that the FAA had used, in part, to justify the requirement. The court’s ruling had no effect on a separate registration requirements for drones used in commercial operations.

In the FAA Modernization and Reform Act passed in 2012, Congress prohibited the FAA from issuing any rule or regulation of “model aircraft,” which it defined as an unmanned aircraft “flown for hobby or recreational purposes.” In December 2015, however, the FAA issued a regulation that imposed registration and marking requirements on all unmanned aircraft between 0.55 and 55 pounds.  In a move that, at the time, we called a “legal sleight of hand,” the FAA converted Congress’s prohibition on model aircraft regulations into a definition of aircraft that were covered by the new regulation.  As we said then, this was “arguably the exact inverse of Congress’s intent.”

In the ruling this week, the appellate court thought the same: “The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition,” the court said. “Statutory interpretation does not get much simpler.”

The registration rule had required any individual who owned a small drone to register the UAS with the FAA before operating the device.  Owners were required to provide contact information, pay a $5 registration fee, and display a unique identifier number issued by the FAA on the UAS.  Nearly 300,000 owners registered drones in the first 30 days of the registration system.

The court was unpersuaded by the FAA’s arguments that the rule did not violate the statute, rejecting the agency’s contention that the rule was either authorized by the agency’s other statutory authority or by the statute’s preamble related to efforts to “improve aviation safety.”

The plaintiff, Washington, D.C.-area drone hobbyist John Taylor, also challenged the FAA’s order prohibiting the operation of model aircraft in certain areas, including the Washington, D.C. Flight Restricted Zone.  The court rejected this challenge because Taylor did not file suit within 60 days of the order’s issuance, as required, and did not have a reasonable reason for his delay.

© 2018 Covington & Burling LLP

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Kurt Wimmer, Partner
Partner

Kurt Wimmer is the US chair of the firm’s Privacy and Data Security practice and a partner concentrating in privacy and technology law.  He advises national and multinational companies on privacy, data security, content and digital technology issues.  He is chair of the Privacy and Information Security Committee of the American Bar Association’s Antitrust Section, and is rated in the first tier by Legal 500, designated as a national leader in Chambers USA, and is included in Best Lawyers in America in four areas. 

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Jack Schenendorf Transportation Legislation Attorney Covington Burling Law firm
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Jack Schenendorf’s practice concentrates on transportation and legislation with a particular focus on legislative strategy, legislative procedure, and the federal budget process.  He recently served as Vice Chair of the National Surface Transportation Policy and Revenue Study Commission.

For nearly 25 years, Mr. Schenendorf served on the staff of the Committee on Transportation and Infrastructure of the U.S. House of Representatives.  He was Chief of Staff from 1995 to 2001.  In BNA's Daily Report for Executives, Mr. Schenendorf was described "as one of the most powerful staffers on the Hill, [who] has played a large role in crafting every piece of major transportation legislation in the past decade."  

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Brian Smith, Government Relations Attorney, Covington Burlington Law Firm
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Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance.  He has significant experience in crisis management, where he advises clients facing combined legal, political, and media relations risks.  His practice also includes the development and execution of...

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Hannah Lepow, Covington, media technology lawyer, telecommunications industries attorney
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Hannah Lepow advises clients in the media, technology, and telecommunications industries on a wide range of regulatory and privacy issues.

Ms. Lepow is a member of the New York bar. She is currently not admitted in the District of Columbia, but is supervised by principals of the firm.

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Stephen Kiehl, Communications Attorney, Covington Law FIrm
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Steve Kiehl is a member of the Litigation and Communications & Media practice groups.  He regularly counsels clients appearing before the Federal Communications Commission on issues of media ownership and policy, and he is a member of the firm’s News Review team, which provides pre-publication review and other media law guidance to broadcasters and newspapers.  He also has represented leading multinational companies in investigations before federal agencies.

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