Drone identification regulation challenged

A crowdfunded coalition organized by RaceDayQuads, an Orlando, Florida-based retailer that caters to first-person view (FPV) drone enthusiasts, has assembled a team of attorneys who are well-versed in aviation law to represent them in the case. Their petition seeks judicial review of a regulation published in January that spans hundreds of pages, a comprehensive set of rules that will in coming years be applied to virtually all unmanned aircraft that weigh 0.55 pounds (250 grams) or more.

Because legal challenges to federal regulations all begin before the U.S. Court of Appeals for the District of Columbia Circuit, the second-highest court in the federal system, the case will be heard first by the same panel that struck down the FAA’s drone registration requirement in 2017. That case, Taylor v. Huerta, briefly prevented the FAA from requiring hobbyists to register their drones, though Congress acted within months to update the law and allow the FAA to restore the registration requirement.

The new case, brought by Tyler Brennan, CEO of RaceDayQuads, and his company, could have more disruptive and lasting effects, depending on the court’s ultimate decision. The FAA has made it clear, repeatedly, that remote identification of unmanned aircraft, often shortened to “remote ID” and described succinctly by the FAA as a “digital license plate” for unmanned aircraft, is a prerequisite for allowing the kind of advanced operations (including package delivery and wide-area infrastructure inspection) that many in the industry have been clamoring for.

The FAA received about 53,000 comments on the remote ID regulation that became FAR Part 89, many of them hobbyists and recreational users concerned about the burden of compliance. Many (including AOPA) urged the FAA to take a more permissive approach to regulating low-risk operations, such as traditional radio-controlled model aircraft.  

The FAA has also been under pressure from law enforcement agencies seeking to mitigate the potential threat of malicious drone operators, and the somewhat routine misuse of unmanned aircraft. Drones have been used to smuggle drugs and other contraband into prisons, conduct surveillance for burglars, have flown dangerously close to manned aircraft far above the 400-foot altitude limit dictated by the FAA, and, in handful of cases, collided with helicopters (and, in one case, a balloon).

A more mysterious (and potentially sinister) threat gained public attention in 2019 and 2020, when unknown small aircraft were seen buzzing a nuclear power plant, rural communities in Colorado and Nebraska, military installations, and, most inexplicably, approaching very close to U.S. Navy destroyers off the California coast on several occasions. 

All of this has increased the pressure on the FAA to establish an electronic means to sort friend from foe, honest operator from lawbreaker, and protect sensitive facilities and public events from incursion.

Brennan, the plaintiff and hobby shop owner challenging the FAA’s imposition of regulatory requirements that would force FPV fliers to attach approved broadcast modules to drones flown outside of designated areas starting in 2023, told noted drone law expert and attorney Dawn Zoldi in a recent interview that remote ID is an existential threat to the hobby upon which he built a business. Typically homebuilt, FPV drones are too small to easily accommodate a broadcast module, Brennan said, and he expects most FAA-recognized identification areas will be granted to operators of traditional RC model aircraft operated by the Academy of Model Aeronautics, and those fields are generally unsuitable for the kind of flying FPV pilots prefer (obstacle avoidance is part of what makes FPV fun), and unwelcoming to FPV for much the same reason.

Brennan expressed a relatively narrow intent in that interview:

“I want little Mikey next door to be able to fly his AirHog in his backyard and not have to plug it into some module and not have to pay for that,” Brennan said “I’m hoping to let our hobbyists and FPV community operate in a safe manner as we have for many years, without additional regulatory oversight which is unneeded and provides no additional benefit to the American people.”

The court has ordered that various documents including a “statement of issues to be raised” in the case are due April 15.