The skies aren’t big enough for everyone. On Friday, the U.S. Court of Appeals for the DC Circuit reversed a ruling from last year that found the FAA cannot regulate small drones used by hobbyists. New regulations are expected to come soon, which should please companies that are trying to break into the commercial drone industry.
In 2015, the Federal Aviation Administration issued an interim final rule setting up various requirements for drones that weigh less than 25kg and more than about half a pound. Though states and local governments had gradually set up their own rules as drones became more popular, the federal government had largely stayed out of the issue. New registration requirements and other prohibitions prompted a hobbyist named John Taylor to file a lawsuit against the administrator of the FAA, arguing that the agency didn’t have jurisdiction in the matter.
Last year, an appeals court sided with Taylor, saying that the FAA had historically stayed away from regulating model aircraft and that the 2012 FAA Modernisation and Reform Act “codified the FAA’s longstanding hands-off approach to the regulation of model aircraft.” While the act was designed by Congress to instruct the FAA to pave the way for more commercial drone usage (like Amazon’s dream program of delivering packages from the sky), Section 336(a) specifically exempted model aircraft enthusiasts.
In today’s ruling, the court found that Section 336 didn’t mean the FAA gave up its regulatory oversight forever. In his opinion, Judge Merrick Garland wrote, “Section 336 also provides, however, that nothing in it ‘shall be construed to limit the authority of the [FAA] Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.'”
While this affirms the regulatory burden on drone hobbyists, Bloomberg points out that this is a victory for big tech:
Friday’s ruling is at least a partial win for companies including Alphabet Inc.‘s Project Wing and Amazon.com Inc.’s Prime Air, which have urged regulators and lawmakers to impose additional standards on the millions of people who fly hobbyist drones. Such requirements are needed to ensure that it’s safe to operate the autonomous delivery systems they are developing, the companies say.
In April, back when 336 was interpreted to negate the FAA’s toy drone rules, the Commercial Drone Alliance, a lobbying group that counts Alphabet among its members, specifically called for Congress to repeal Section 336, saying that “basic ‘rules of the road’ are needed to manage all this new air traffic.” While it is strange to see major corporations calling for more regulation, it’s also clear that running a dangerous commercial drone program at a national level would be a nightmare with a million amateurs flying around and no way of knowing what they’re doing. We asked Amazon and Google for comment on the ruling but didn’t receive an immediate reply.
Interestingly, today’s decision was written by President Obama’s pick for the Supreme Court, Merrick Garland. Garland was never granted a hearing by the Republican-controlled Senate. Now that President Trump is looking to fill an empty Supreme Court seat, conservative judge Brett M. Kavanaugh is considered to likely be his top pick. Kavanaugh wrote the original opinion that agreed with Taylor that this is not the FAA’s domain. If Kavanaugh gets the lifetime appointment and Taylor decides to push his case to the Supreme Court, the judge would likely recuse himself but who the hell knows.