Immediate reactions to the FAA’s drone registration program, announced Monday, varied from concerns that the program did not go far enough to ensure the safety of passenger aircraft to worries that stiff regulation would prove a barrier to innovation in the industry. While consumers and manufacturers debated the utility of the law or the details of implementation, another argument emerged: does the FAA have the legal right to impose drone registration at all?

The arguments are based upon the details of the FAA Modernization Act of 2012. Under scrutiny from Congress, the FAA had been unable to obtain a stable funding package and had been maintained since 2007 on a series of interim funding measures (a total of 23 short-term, emergency operating bills over 5 years.) In February of 2012, President Obama signed the FAA Modernization Act into law, which guaranteed the agency funding through 2015 while requiring them to address issues of modernization (Next Generation Air Transportation Systems) and improve safety and capacity of the national airspace.

One requirement of the Modernization Act was that the FAA establish laws to integrate unmanned aircraft into the national airspace – which the FAA failed to do by the deadline. The wording of the sections of the act (yes, that Section 333 of the Section 333 Exemptions) pertaining to the integration of unmanned aircraft seem to prohibit the agency from enacting new rules. A detailed explanation and analysis can be found at Rupprecht Law, but in brief, Section 336 of the law says (emphasis mine):

Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft.

The argument against the FAA’s registration program is that it is a new rule or regulation regarding a model aircraft, in direct contradiction to the above.

The FAA answers this charge by stating that the registration program is not a new rule; just a more convenient way (a new website) – which the FAA calls a “burden-relieving alternative” – to follow an old rule requiring that all aircraft be registered. The FAA points out that another law describes model aircraft as aircraft, and aircraft must be registered – so the fact that nobody has ever done so previously for all practical intents and purposes is beside the point.

“The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply,” the agency responds.

The Competitive Enterprise Institute (CEI) announced today that they may file a lawsuit against the FAA. In a paper prepared by research fellow Marc Scribner in early November after the program was proposed, CEI cites the argument above, that the FAA lacks jurisdiction to enact the law. The CEI document goes further, however, stating that even if the FAA may claim the right to regulate drones, it did not have the right to shorten the mandatory 30 day comment period. This comment period – which the FAA shortened to 15 days – cannot be legally shortened except for “good cause.” The paper explains:

Under the APA, substantive agency rulemakings are required to include a notice and comment period of at least 30 days unless “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”The good cause exception “is not an escape clause.” Rather, “[i]t should be narrowly construed and only reluctantly countenanced,” with “the agency bear[ing] the burden of demonstrating the grounds for good cause.” Is the fact that the FAA didn’t think of a drone registration program until a month before Christmas good cause? Attorney Enrico Schaefer, drone expert with Traverse Legal, doesn’t think so: Most people agree we need a better way to incentivize safe operations by drone hobbyists. But the FAA rushed this drone registration process in less than two months, without the appropriate rule-making notice and comment process. The FAA justified its rushed process on the basis that Christmas drone sales created and ‘emergency’ since it would put hundreds of thousands of new drones into the NAS. The last I checked, Christmas comes the same day every year. …Cramming this new registration rule down everyone’s throats may turn out to be a set-back for the drone industry and the FAA. The FAA seems to be struggling with its mandate to set reasonable rules and regulations in a thoughtful, considered way.

Arguments against the efficacy of the system, another point of CEI’s proposed lawsuit, also abound: the JDA Journal’s article outling 9 reasons why they feel that drone registration will not significantly contribute to safety mentions most of them; but the basic conclusion is simple: “While even a small N number on a drone can identify it, that is ONLY useful if it has crashed or is in the hands of the authorities. The registration has little value when the UAS escapes or there is an opportunity to interdict an impending problem,” the article states. As the JDA and many other drone advocates have opined, technological fixes such as DJI‘s geofencing technology are a vastly more effective – not to mention elegant – solution to the problem of irresponsible operators.

The FAA’s reasons for enacting the policy despite obvious problems seem clear: while the industry clamors for clarity on the commercial side, the politicians and the airline pilots have put pressure on the agency to regulate hobby drones. The FAA has missed several deadlines and has been reluctant to move quickly on other aspects of drone regulation, citing the need to thoroughly review comments and to test important technologies. But as local governments step in to fill the void of clear federal drone laws, the FAA finds itself under fire politically for not protecting consumers. The rash of proposed drone legislature shows that the public wants to feel that lawmakers are handing the drone issue: headlines proclaiming 1,000,000 drones sold for Christmas (DroneLife had one, too) caused the agency to rush to handle the perceived crisis.

The FAA certainly intends to enact the registration program next week. (You can register your drone here on Monday, December 21.) But the arguments against its right to do so are strong enough that opponents to the program may gather enough momentum to cause the agency some embarrassment at the very least. Already under pressure from the business community for not formalizing commercial drone regulations quickly enough to give the US an advantage in the global marketplace, another misstep offers opponents more evidence that the FAA is sorely in need of true modernization.