FAA In Search of a Legal Basis For Drone Registration

By Thomas L. Gemmell

At the end of 2015, the FAA required those operating small Unmanned Aircraft Systems (“sUAS”) used for other than commercial purposes to register the UAS and affix a registration number on the aircraft. The registration requirement emerged from an increase in the number of reported near misses involving UAS and was to facilitate the tracking of those who violated general aviation rules and regulations. 

By the end of 2016, faced with the threat of federal penalties for failing to register, nearly 1 million operators had registered their UAS.

Of course, the problem was operators should not have been required to register their UAS in the first place. In May 2017, the U.S. Court of Appeals for the District of Columbia Circuit, in the case Taylor v. Huerta, struck down the requirement to register drones used for recreational purposes, ruling the FAA’s mandate violated section 336 of the FAA Modernization and Reform Act of 2012—the Special Rule for Model Aircraft—which expressly exempts hobby drones from regulation.

Moreover, despite the rationale for requiring registration ostensibly being to hold irresponsible operators accountable for their actions, the FAA has not enforced a single action based on the registrations.

While it ponders what to do next, the FAA has rescinded the requirement to register drones used for recreational purposes and offered to refund the nearly $3 million in registration fees that it collected.

Rather than fight the appellate court’s ruling, the FAA is likely to seek a remedy through new legislation, which is sorely needed to square the disparate legal regimes between commercial and recreational UAS operations. Most recently, the FAA provided an update regarding the small UAS registration program, encouraging voluntary registration for all owners of sUAS while it develops a final rule that will implement the appellate court's decision.

UAS used for commercial purposes must still be registered in accordance with the Small UAS Registration Service.

Click here to learn more about Polsinelli's Unmanned Aircraft Systems and Advanced Robotics practice, or contact Tom Gemmell.