Questioning the FAA’s legal interpretation sometimes works

My colleagues Adam Thierer and Samuel Hammond have already weighed in on the FAA’s new, hastily-devised drone registration scheme. They have great thoughts on the subject.

As I was mulling it over, however, I realized that a significant aspect of the FAA’s registration plan is how much they have backtracked since they proposed their drone regulations in February.

In their Notice of Proposed Rulemaking, the FAA argued that:

1. Under the agency’s authorizing statute, an “aircraft” is “any contrivance invented, used, or designed to navigate or fly in the air.”
2. Drones are contrivances invented, used, and designed to fly in the air.
3. Unless otherwise excepted, by statute, all aircraft are required to be registered.
4. Therefore, the FAA’s hands are tied; all drones must be registered.

We did not agree with this analysis. As we noted in our filing on the proposed rulemaking in April, the FAA’s regulations on ultralight vehicles do not require registration—despite the fact that ultralights are contrivances invented, used, and designed to fly in the air! The FAA therefore has more flexibility than they claimed.

In addition, we noted that if the FAA really applied the standard they claimed to be applying to drones, that would outlaw unmarked and unregistered paper airplanes.

The fact that the FAA is now conducting a process, however inadequate, to determine what drones should be registered and which should not be, represents a welcome step back from what they were asserting earlier this year.

This incident demonstrates how important it is to keep federal agencies under a watchful eye. The FAA engages in questionable legal interpretation all the time (for example, is there the required cost-benefit analysis on the drone registration scheme?). Calling agencies out on this kind of activity is one of the more effective tools we can wield for smaller and smarter government.