ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED

IN THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

USCA Case No. 16-1302 (Consolidated with Case No. 16-1297)

____________________

JOHN A. TAYLOR,

Petitioner,

vs.

FEDERAL AVIATION

ADMINISTRATION,

Respondent.

____________________

PETITION FOR REVIEW FROM

THE FEDERAL AVIATION ADMINISTRATION

__________________________________________________________

BRIEF OF PETITIONER

JOHN A. TAYLOR

__________________________________________________________

February 27, 2017 John A. Taylor, pro se

4115 Ferrara Drive

Silver Spring, Maryland 20906

(301) 942-3040

jat@wolfenstock.com

USCA Case #16-1302 Document #1663249 Filed: 02/27/2017 Page 1 of 73

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CERTIFICATE OF COMPLAINCE WITH

TYPE-VOLUME LIMITATION, TYPEFACE

REQUIREMENTS AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 11,327 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word v.14.0 in 14 point Times New Roman.

.

/s/ John A. Taylor

John A. Taylor,

Petitioner

Dated: February 27, 2017

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Cir. Rule 28(a)(1), Petitioner submits the following:

Parties and Amici:

Parties:

John A. Taylor, Petitioner;

Federal Aviation Administration, Respondent

Intervenors:

There are no intervenors in this matter.

Amici Curiae:

There are no amici curiae in this matter.

Rulings Under Review:

Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed.

Reg. 42063 (June 28, 2016). APP.

Related Cases:

This matter was consolidated by the Court with the case of Electronic

Privacy Information Center v. Federal Aviation Administration, Case No. 16-1297.

The consolidated cases seek review of the same rulemaking, but on independent

grounds.

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TABLE OF CONTENTS

Page

Certificate of Compliance with Type-Volume Limitation,

Typeface Requirements and Type Style Requirements . . . . . . . . . . . . . . . . i

Certificate as to Parties, Rulings and Related Cases . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Glossary of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

Petitioner’s Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Petitioner’s Statement of the Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . 2

Petitioner’s Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes and Regulations (See Addendum) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Petitioner’s Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Petitioner’s Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Petitioner’s Statement Regarding Standing (See Addendum) . . . . . . . . . . . . . . . 10

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. Historical Background: the FAA’s Treatment of Recreational Model

Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The Rule Violated Federal Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. The Rule Violated § 336(a) of Pub. L. 112-95 by Promulgating

a Rule or Regulation Regarding Model Aircraft . . . . . . . . . . . . . . . . . . 23

C. The Rule Violated § 336(a) of Pub. L. 112-95 by Creating a Rule

or Regulation that Applies Requirements of “Aircraft” onto Model

Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

D. The Rule Violated the Paperwork Reduction Act

(44 U.S.C. § 3501, et seq.) by Requiring Operator Notice to

Airports and the Collection of other Data by the FAA . . . . . . . . . . . . . 27

III. The Rule is Beyond the Scope of the FAA’s Statutory Authority . . . . . . . 28

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

B. The FAA has Long Acknowledged that Recreational Model

Aircraft are Not Under FAA Authority as Aircraft . . . . . . . . . . . . . . . . 29

C. Pub. L. 112-95 Codified the FAA’s Then-Existing Distinction

Between Recreational Model Aircraft and Civil Aircraft . . . . . . . . . . . 34

D. It would be Inconsistent with the Clear Legislative Intent of § 336(a)

to Bring Recreational Model Aircraft Under the Voluminous Body

of Law Applicable to Civil Aircraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

E. Part 107 Regulates Operation of Recreational Model Aircraft that are

not in Air Commerce and do not Endanger Airspace . . . . . . . . . . . . . . 38

IV. The Rule is Arbitrary and Capricious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

B. The Application of “Aircraft” Laws to Recreational Model

Aircraft is Arbitrary and Capricious . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. The FAA Denies that a Change has Been Made, and

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Therefore Fails to Provide the Justification for Change

Required by the APA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2. Laws Applicable to Aircraft have no Rational Application

to Model Aircraft and Defy Compliance . . . . . . . . . . . . . . . . . . 44

3. The Rule Places Arbitrary and Capricious Airport

Notification Requirements Upon Recreational Model

Aircraft Operators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

4. The FAA’s Failure to Address What Recreational Activities

are allowed Renders the Rule Arbitrary and Capricious . . . . . . . 49

5. The FAA Deferred Consideration of Important Relevant

Aspects of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

V. The Rule is Unconstitutionally Vague . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

B. The FAA’s Interpretation of “Aircraft” would render the Defining

Statute Irrationally, and Unconstitutionally, Vague . . . . . . . . . . . . . . . . 54

C. The FAA’s Failure to Define “Community-Based Organization”

or “Programming” Renders the Rule Irrationally, and

Unconstitutionally, Vague . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Conclusion and Relief Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

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TABLE OF AUTHORITIES

Cases:

Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37

L.Ed.2d 350 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 54

Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d

746 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33

BellSouth Corp. v. F.C.C., 162 F.3d 1215 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . 42

Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S.281 95 S.Ct. 438,

42 L Ed. 2d 447 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9

L.Ed.2d 207 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

* Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) . . . . . . . . . . . . . . . . . . . . 22-23, 29

Farmers Union Cent. Exch., Inc. v. F.E.R.C., 734 F.2d 1486 (D.C. Cir. 1984) . . 43

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 129 S. Ct. 1800, 173 L. Ed.

2d 738 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43

Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S.

27, 102 S.Ct. 38 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 113 S. Ct. 2151, 124 L. Ed. 2d

368 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Griggs v. Allegheny Cty., Pa., 369 U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962) . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Huerta v. Pirker, NTSB Docket No. CP-217 (2014) . . . . . . . . . . . . . . . . . . . 31, 55

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INS v. Cardoza–Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

* Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (U.S.

1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

* Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983) . . . . . . . . . . . 33, 40-42, 47, 52

Nat'l Ass'n of Home Builders v. E.P.A., 682 F.3d 1032 (D.C. Cir. 2012) . . . . . . . 43

Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 125

S.Ct. 2688, 162 L.Ed.2d 820 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Petroleum Communications, Inc. v. FCC, 22 F.3d 1164 (D.C.Cir.1994) . . . . . . . 42

SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) . . . . 41

Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 116 S. Ct. 1730, 135

L.Ed.2d 25 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062,

90 L. Ed. 1206 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954) . . 54-55

United States v. Thomas, 864 F.2d 188, 194 (D.C. Cir. 1988) . . . . . . . . . . . . 54, 57

Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) . . . . . . . . . 33

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Statutes:

Air commerce Act of 1926, 69th Cong. Sess. I, Ch.344, 44 Stat. 568 . . . . . . . 11-12

Pub. L. No.103-272, § 40102(a)(6), 108 Stat. 745 (July 5, 1994) . . . . . . . . . . . . . 12

Pub. L. No. 112-95, 126 Stat. 11 . . . . . . . . . 6, 17, 17, 19-21, 23, 24, 28, 30, 34-37

Pub. L. No. 112-95, § 332, 126 Stat. 11 . . . . . . . . . . . . . . . 6, 16, 17, 21, 22, 34, 36

Pub. L. No. 112-95, § 333, 126 Stat. 11 . . . . . . . . . . . . . . . . . . . . . 6, 17, 22, 35, 36

Pub. L. No. 112-95, § 334, 126 Stat. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

* Pub. L. No. 112-95, § 336, 126 Stat. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . 3, 6-8, 16-21, 23-26, 28, 29, 35-37, 40, 49-51, 57, 58

5 U.S.C. § 500, et seq. (Administrative Procedure Act). . . . . . . . . . . . . . . . . . . . . 42

5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 40, 42, 53, 55

44 U.S.C. § 3501, et seq.(the Paperwork Reduction Act) . . . . . . . . . . . . 3, 8, 23, 27

44 U.S.C. § 3502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

* 44 U.S.C. § 3507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

49 U.S.C. § 40102 . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 15, 16, 29, 32, 32, 35, 37, 38

49 U.S.C. § 40103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40

49 U.S.C. § 44711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 47

49 U.S.C. § 46110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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Regulations:

5 C.F.R. § 1320.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

14 C.F.R. § 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-31

14 C.F.R. § 21.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

14 C.F.R. § 21.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

14 C.F.R. § 43.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

14 C.F.R. § 43.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

14 C.F.R. § 61.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

14 C.F.R. § 61.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

14 C.F.R. § 91.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

14 C.F.R. § 91.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

14 C.F.R. § 91.119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

14 C.F.R. § 91.203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46

14 C.F.R. § 91.409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 47

Part 101 of Title 14 of the C.F.R. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 25, 26, 29

* 14 C.F.R. § 101.41 . . . . . . . . . . . . . . . . . . 7, 9, 24, 27, 36, 47, 48, 50, 52, 53, 57, 58

14 C.F.R. § 101.43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

14 C.F.R. § 103.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

14 C.F.R. § 103.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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Part 107 of Title 14 of the C.F.R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . 3, 5, 7, 8, 10, 25, 29, 33, 35, 37, 38, 40, 43, 46, 48-51, 53

* 14 C.F.R. § 107.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 24, 29, 35, 48, 58

14 C.F.R. § 107.12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

14 C.F.R. § 107.43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Other Regulatory Materials:

AC91-57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-14, 16, 30, 39, 45

AC91-57A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 20, 39, 45

Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg.

6689, 6690 (Feb. 13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 31, 34

Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36172 (June 25,

2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 44

Clarification of the Applicability of Aircraft Registration Requirements for

Unmanned Aircraft Systems (UAS) and Request for Information Regarding

Electronic Registration for UAS, 80 Fed. Reg. 63912 (Oct. 22, 2015)

("Clarification and Request for Information") . . . . . . . . . . . . . . . . . . . 30, 32

Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed.

Reg. 78593 (Dec.16, 2015) (“The Interim Final Rule”) . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 30, 36, 37, 43, 56

Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg.

42063 (June 28, 2016) . . . . . . 5, 7-9, 22-28, 30, 35, 36, 38, 40, 45-52, 55, 57

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Rules:

D.C. Cir. Rule 28(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Fed. R. App. P. 28(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

* Authorities upon which we chiefly rely are marked with asterisks.

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GLOSSARY OF ABBREVIATIONS

EX Petitioner’s Addendum of Exhibits

FAA The Federal Aviation Administration.

APP Petitioner’s Appendix

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1

PETITIONER’S JURISDICTIONAL STATEMENT

The matter before the Court is the review of a final order of the FAA.

This Court has jurisdiction pursuant to 49 U.S.C. § 46110(a).

Petitioner is a recreational model aircraft hobbyist who is directly adversely

affected by the order that is the subject of review in that it unlawfully creates duties

and prohibitions that limit Petitioner’s operation of recreational model aircraft. See

Petitioner’s Addendum Regarding Standing.

The order was issued June 28, 2016 and the Petition was filed on August 28,

2016, within 60 days of issuance of the order.

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PETITONER’S STATEMENT OF THE STANDARD OF REVIEW

The Court’s standard of review regarding each issue is set forth within the

Argument section, pursuant to Fed. R. App. P. 28(a)(8)(B).

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PETITIONER’S STATEMENT OF THE ISSUES

1. Whether the FAA’s Rule violated federal statutes:

a. Whether the FAA’s amendments to Part 101 of Title 14 of

the C.F.R. violated the prohibition on rules and regulations

regarding model aircraft in § 336(a) of Pub. L. 112-95 by

adopting a regulation regarding such model aircraft.

b. Whether the FAA’s adoption of regulations treating

recreational model aircraft as “aircraft” and thus subjecting

them to existing “aircraft” statutes and regulations under

new Part 107 of Title 14 of the C.F.R. violated the

prohibition on promulgation of rules and regulations

regarding model aircraft in § 336(a) of Pub. L. 112-95.

c. Whether the Rule violated the Paperwork Reduction Act. 44

U.S.C. § 3501, et seq.

2. Whether the FAA’s adoption of regulations regarding recreational model

aircraft and other non-commercial flying devices under new Part 107 of Title

14 of the C.F.R. were authorized by statute.

3. Whether the FAA’s Rule was arbitrary and capricious.

4. Whether the FAA’s Rule was unconstitutionally vague.

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STATUTES AND REGULATIONS

Cited statutes and regulations are contained in a separate addendum.

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PETITIONER’S STATEMENT OF THE CASE

On June 28, 2016, the FAA issued Operation and Certification of Small

Unmanned Aircraft Systems, 81 Fed. Reg. 42063 (June 28, 2016) (“the Rule”).

APP, p. 2 et seq., which is the subject of the Petition in this case.

The Rule created a separate category of “aircraft” regarding recreational

model aircraft under Part 101 of Title 14 of the C.F.R.

The Rule further created a new Part 107 for extensive regulation of the

operation of all small unmanned “aircraft,” other than those it specifically exempts

under Part 101. 14 C.F.R. § 107.1(a) and (b)(2).

Petitioner filed his Petition for Review on August 28, 2016.

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PETITIONER’S SUMMARY OF ARGUMENT

For over a century, the FAA and its predecessors recognized recreational

model aircraft as something entirely separate and apart from civil aircraft. The

FAA realized it had no authority over these toys and encouraged only “voluntary

compliance” with safety guidelines that largely sought to keep recreational model

aircraft out of the navigable airspace and air commerce properly regulated by the

FAA.1

The FAA’s distinction between civil aircraft and recreational model aircraft

was adopted and codified by Congress in 2012. Pub. L. 112-95 mandated FAA

control over some small unmanned devices that were being operated commercially

(which the FAA had categorized as “civil aircraft” since 2007) in §§ 332-33, while

specifically prohibiting FAA regulation of model aircraft that were operated

recreationally and met certain safety-related criteria in § 336.

While § 336 provided specific prohibitions on regulation, it provided no new

grant of regulatory authority as to any recreational model aircraft. It preserved only

1 The issue of whether recreational model aircraft are “aircraft” under prior existing

law is one subject of Petitioner’s action in Case No. 15-1495, currently pending

before this Court. Much of the argument herein is taken, in some cases verbatim,

from portions of Petitioner’s brief in Case No. 15-1495 addressing the issue.

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the FAA’s authority to pursue enforcement action against persons operating model

aircraft who endanger the safety of the national airspace system. § 336(b).

Despite the clear statutory prohibition of § 336(a), the FAA, through the

Rule: 1) adopted a regulation specifically addressing the category of recreational

model aircraft for which regulation was expressly prohibited (14 C.F.R. § 101.41)

and 2) adopted a new definition of “aircraft” that brought such recreational model

aircraft under the full weight of regulations applicable to traditional full-sized

manned aircraft.

In addition, the FAA failed to address issues necessary for determination of

whether a model aircraft operation fell within the protections of § 336(a) – while

creating a complex and cumbersome process for those that may not.2 Part 107. The

net effect is to deprive recreational model aircraft operators (which range from

passionate hobbyists to children with tiny flying toys3) of the protections Congress

intended when it enacted § 336.

2 In the Rule, the FAA notes that “…those model aircraft operations that do not

wish to comply with a community based set of safety guidelines and operate within

the programming of a nationwide community-based organization will be able to

simply conduct their operations under part 107.” 81 Fed. Reg. at 42081-82.

3 It is noteworthy that some recreational model aircraft are quite small. The

Cheerson CX-10, for example, is less than 2” x 2” and weighs less than half an

ounce. It has a flight time of around four minutes and a range of less than 70 feet.

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The Rule also violated the Paperwork Reduction Act by requiring reporting

and collection of information without meeting the requirements of that Act. 44

U.S.C. § 3501, et seq.

While the application of Part 107 to recreational model aircraft not meeting

the specific protections of § 336(a) did not itself violate § 336(a), nor was it

authorized. The regulatory authority claimed is premised on recreational model

aircraft being “aircraft” pursuant to 49 U.S.C. § 40102(a)(6). They are not, and

until recently, had never been claimed to be such by the FAA. Nor does the

operation of recreational model aircraft inherently affect navigable airspace or air

commerce – so as to bring their operation under any other FAA statutory authority.

The FAA has acted under the specious theory that recreational model aircraft

suddenly became “aircraft” and therefore must be subject to all laws related to

“aircraft.” The FAA’s broad new interpretation of the definition of “aircraft” as

being any flying contrivance would similarly make Frisbees, paper airplanes, and

other small flying toys subject to the myriad statutes and regulations applicable to

“aircraft.”

EX39-41. However, other than its size and corresponding capabilities, it is

identical in basic function to even the largest of consumer multirotor devices.

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In addition, the Rule is arbitrary and capricious:

1. No consideration has been given by the FAA as to whether the devices in

question should now be considered “aircraft.” Despite the clear shift in

policy, the FAA falsely contends they have always considered them to be

aircraft;

2. The application of traditional aircraft laws to model aircraft, which is the

unavoidable result of the FAA’s shift in position, simply makes no sense;

3. The FAA found no safety benefit, and some distraction, to a requirement

that airports be notified of model aircraft operation. 81 Fed. Reg. at

42149. Yet it requires such notice for recreational model aircraft

operators to maintain their protected status under 14 C.F.R. § 101.41(e);

4. The FAA fails to consider or provide definitions for essential elements

necessary for compliance. Rather, it defers consideration to some

unidentified future date.

The FAA’s actions have left recreational model aircraft operators with rules

that are so vague and inconsistent that they are impossible to understand or obey.

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PETITIONER’S STATEMENT REGARDING STANDING

Petitioner is a recreational model aircraft hobbyist who directly suffers

adverse consequences by virtue of the Rule subject to review.

The Rule: 1) requires Petitioner to operate his recreational model aircraft in

accordance with vague criteria that cannot reasonably be followed; 2) requires

Petitioner to comply with Part 107 for any operation of a small flying toy that does

not fall within the exception of 14 C.F.R. § 107.1(b)(2); 3) requires Petitioner to

comply with various statutes and regulations regarding “aircraft;” 4) requires

Petitioner to notify airports within five miles of his operation of recreational model

aircraft. See also Petitioner’s Addendum Regarding Standing.

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ARGUMENT

I. Historical Background: the FAA’s Treatment of Recreational Model

Aircraft:

Because these matters arise from over a century of federal legislative,

regulatory and interpretive action, an understanding of the regulatory history is

critical.

For the first century of American aviation and beyond, the federal

government made no attempt whatsoever to regulate recreational model aircraft.

Recreational model aircraft were treated as toys, and appropriately so, rather

than as a type of “aircraft” subject to the authority of the FAA and its predecessors.

1926:

The Air Commerce Act of 1926:

In 1926, Congress passed the Air commerce Act of 1926, 69th Cong. Sess. I,

Ch.344, 44 Stat. 568.

§ 9(c) of that Act defines “aircraft” to mean “…any contrivance now known

or hereafter invented, used, or designed for navigation of or flight in the air, except

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a parachute or other contrivance designed for such navigation but used primarily as

safety equipment.”4 Id., 44 Stat. at 573.

As suggested by its name, the goals and functions of the Air Commerce Act

of 1926 focused on interstate and foreign air commerce. The Act did not address

model aircraft, and it was not interpreted as doing so.

1981:

AC91-57:

For more than 50 years following the enactment of the Air Commerce Act of

1926, the federal government remained silent on the issue of model aircraft.

Model aircraft were not subject to registration or any other regulation applicable to

“aircraft.”

In 1981, the FAA issued an advisory circular regarding model aircraft.

AC91-57 - Model Aircraft Operating Standards (June 9, 1981). EX42. AC91-57

4 In 1994, following other amendments, the statutory definition of “aircraft” was

modified to be, “…any contrivance invented, used, or designed to navigate, or fly

in, the air.” Pub.L. No.103-272, §40102(a)(6), 108 Stat. 745 (July 5, 1994).

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was the FAA’s first formal treatment of model aircraft. As the FAA has

acknowledged,

Until 1981, there were no federal guidelines or directives for model

aircraft operations. In June of that year, the FAA published an

Advisory Circular (AC 91-57) titled ‘Model Aircraft Operating

Standards.’ Although not directive in nature, AC 91-57 provided

general guidance for the operation of model aircraft.5

In AC91-57, the FAA still made no claim of, nor attempt to exercise,

regulatory authority over the hobby, its participants or equipment - as “aircraft” or

otherwise. AC91-57 contained neither mandates nor prohibitions. Rather, it

“…outlines, and encourages voluntary compliance with, safety standards for

model aircraft operators.” [emphasis supplied]6

2001:

FAA Memoranda

On August 28, 2001, an FAA Air Traffic Division Manager sought guidance

for procedures regarding the flight of radio controlled blimps and other devices.

EX1-4.

5 Memorandum of Understanding between Academy of Model Aeronautics and

Federal Aviation Administration Concerning Operation of Model Aircraft In the

National Airspace System, executed January 11, 2014. EX19-21.

6 AC91-57 was superseded in 2015 by AC91-57A, which is the subject of

Petitioner’s Petition in Case No. 16-1008.

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The FAA’s Program Director for Air Traffic Planning and Procedures in the

Washington D.C. office provided a response, consistent with the position the FAA

had always taken – that model aircraft are not subject to FAA regulation:

Model aircraft do not require a type certificate, airworthiness

certificate, or registration. Federal Aviation regulations do not apply

to them.

* * *

Model aircraft operators should comply with Advisory Circular 91-57,

Model Aircraft Operating Standards, and avoid flying within 3 miles

of an airport or in proximity of full-scale aircraft. [emphasis supplied]

Id., at 4.

2007 – 2011:

Notice No. 07-1, et al.:

In AC91-57, and in the 2001 memoranda, the FAA did not distinguish

between model aircraft being flown recreationally and those that were flown

commercially. It claimed authority over neither. In fact, the devices that were the

subject of the 2001 memoranda were to be used commercially.

However, starting in 2007, the FAA issued various statements of opinion,

purporting to draw a new clear regulatory distinction between model aircraft used

for commercial purposes, and those used recreationally.7

7 E.g., Unmanned Aircraft Operations in the National Airspace System, 72 Fed.

Reg. 6689, 6690 (Feb. 13, 2007); ORDER 8130.34, Airworthiness Certification of

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The FAA’s new position was that recreational model aircraft remained

solely governed by AC91-57. However, similar devices flown for commercial

purposes were now required to have airworthiness certificates and otherwise be

subject to FAA regulation.

In furtherance of this new regulatory dichotomy, the FAA drew a distinction

between: 1) commercial “unmanned aircraft systems” (“UAS”), which it

characterized as “civil aircraft;” and 2) recreational model aircraft.

The current FAA policy for UAS operations is that no person may

operate a UAS in the National Airspace System without specific

authority. For UAS operating as public aircraft8 the authority is the

COA, for UAS operating as civil aircraft the authority is special

airworthiness certificates, and for model aircraft the authority is AC

91–57.

Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg.

6689, 6690 (Feb. 13, 2007).

The distinction the FAA drew between “civil aircraft” (which it applied only

to devices being flown commercially) and recreational “model aircraft” is wholly

inconsistent with the notion that recreational model aircraft are “aircraft” under the

Unmanned Aircraft Systems (March 27, 2008). (EX22-26 (excerpt)); Interim

Operational Approval Guidance 08-01 (2008) (§ 4, p.5) (EX27-31 (excerpt));

ORDER 8130.34B, Airworthiness Certification of Unmanned Aircraft Systems

and Optionally Piloted Aircraft (Nov. 28, 2011) (EX32-36).

8 I.e., aircraft owned by the government. 49 U.S.C. § 40102(a)(41).

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law. 49 U.S.C. § 40102(a)(16) provides that, “‘civil aircraft’ means an aircraft

except a public aircraft.” If recreational model aircraft are not “public aircraft,”

and they are not “civil aircraft,” then they are not aircraft at all.9

The FAA repeated the distinction between civil aircraft and model aircraft in

2014 and 2015 (after the enactment of Pub. L. 112-95),10

and maintains the

distinction on its website as recently as May, 2016. See EX5-8.

2012:

Pub. L. 112-95:

For more than 30 years after the issuance of AC91-57, recreational model

aircraft hobbyists continued to operate in “voluntary compliance” with the safety

standards of that advisory circular, with no attempt by the FAA to claim regulatory

authority.

In 2012 Congress enacted the FAA Modernization and Reform Act of 2012,

Pub. L. No. 112-95, 126 Stat. 11 (“Pub. L. 112-95”).

9 Like the FAA’s 2007 policy statement, Pub. L. 112-95 draws a clear distinction

between unmanned devices used as “civil aircraft,” which must be registered (§

332(a)(2)(A)(iii)), and recreational model aircraft which are protected from FAA

regulation (§ 336).

10

FAA Order JO 7210.873 (July 11, 2014) (§ 7(a), p. 3). EX9-11 (excerpt); FAA

Order JO 7210.882 (July 11, 2015) (§ 7(a), p. 3). EX12-14 (excerpt); FAA Order

JO 7210.891 (Nov. 25, 2015) (§ 8(b), (c), p. 2-3) EX15-17 (excerpt).

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In § 336 of the Pub. L. 112-95, Congress codified the FAA’s longstanding

treatment of recreational model aircraft. Through § 336, Congress carved out and

specifically protected certain recreational model aircraft from any regulatory

authority the FAA might claim over these toys as “aircraft.”

While § 332 and § 333 established FAA authority over devices used

commercially as “civil aircraft,” nothing in Pub. L. 112-95 gave the FAA general

authority over recreational model aircraft.

Indeed, § 336(a) specifically prohibited the FAA from adopting rules or

regulations regarding recreational model aircraft that meet certain basic size and

operational criteria.

Recognizing even toys can be dangerous when abused, Congress reiterated

the FAA’s authority, where applicable, “… to pursue enforcement action against

persons operating recreational model aircraft who endanger the safety of the

national airspace system.” § 336(b). This was not a grant of additional authority,

but only a preservation of existing authority, and only regarding persons who

actually endanger the safety of the national airspace system.

SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.

(a) IN GENERAL.—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

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may not promulgate any rule or regulation regarding a model

aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational

use;

(2) the aircraft is operated in accordance with a community

based set of safety guidelines and within the programming

of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds

unless otherwise certified through a design, construction,

inspection, flight test, and operational safety program

administered by a community-based organization;

(4) the aircraft is operated in a manner that does not

interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator

of the aircraft provides the airport operator and the airport

air traffic control tower (when an air traffic facility is located

at the airport) with prior notice of the operation (model aircraft

operators flying from a permanent location within 5 miles of

an airport should establish a mutually-agreed upon operating

procedure with the airport operator and the airport air traffic

control tower (when an air traffic facility is located at the

airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall

be construed to limit the authority of the Administrator to pursue

enforcement action against persons operating model aircraft who

endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term

‘‘model aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;

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(2) flown within visual line of sight of the person operating the

aircraft; and

(3) flown for hobby or recreational purposes.

2014:

Interpretation of the Special Rule:

On June 25, 2014, in response to § 336 of Pub. L. 112-95, the FAA issued

its Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36172 (June

25, 2014).

In that document, and despite the voluminous and universally-consistent

evidence to the contrary, the FAA alleged that,

Historically, the FAA has considered model aircraft to be aircraft that

fall within the statutory and regulatory definitions of an aircraft, as

they are contrivances or devices that are “invented, used, or designed

to navigate, or fly in, the air.”

Having made that patently-false assertion, the FAA still claimed no

entitlement to bring them under the body of law applicable to “aircraft.”

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2015:

AC91-57A:

On September 9, 2015, and in further response to § 336 of Pub. L. 112-95,

the FAA issued an updated version of AC91-57, entitled AC91-57A.11

12

Like AC91-57 before it, AC91-57A was an advisory circular, not a

regulation or formal rule. Nonetheless, the “voluntary compliance” language of

AC91-57 disappeared from this new version and it included specific prohibitions

regarding recreational model aircraft operations. AC91-57A was issued without

notice and comment.

One significant function of AC91-57A was to bring recreational model

aircraft under flight restriction zones designed to protect the nation’s capital from

attacks by traditional manned aircraft.

The prohibitions of AC91-57A regarding flight zones apply to all model

aircraft, regardless of size. Its prohibitions also contained no altitude limitations or

11 AC91-57A - Model Aircraft Operating Standards (See Revision of Advisory

Circular 91-57 Model Aircraft Operating Standards, 80 Fed. Reg. 54367 (Sept. 9,

2015). AC91-57A was subsequently revised on September 10, 2015 (Advisory

Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54417 (Sept. 10,

2015)), and January 11, 2016 (EX48-50) without substantive change.

12

AC91-57A is the subject of Petitioner’s Petition for Review in Case No. 16-

1008.

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other connection to navigable airspace or air commerce. They apply to a child

playing with a small flying toy a few feet off the ground in the family’s back yard.

2015:

The Registration Regulation:

On December 16, 2015, the FAA issued Registration and Marking

Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78593 (Dec.16, 2015)

(the “Registration Regulation”).

The function of the Registration Regulation was to create a new mandatory

online registration process for most types of recreational model aircraft.13

2016:

Operation and Certification of Small Unmanned Aircraft Systems:

In 2016, the FAA issued the Rule that is the subject of this action.

The Rule was not the “comprehensive plan to safely accelerate the

integration of civil unmanned aircraft systems into the national airspace system”

Congress mandated the FAA to develop several years ago pursuant to § 332(a)(1)

of Pub. L. 112-95. A § 332 plan has yet to be developed.

13 The Registration Regulation is the subject of Petitioner’s Petition for Review in

Case No. 15-1495.

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Rather, the FAA has decided to proceed “incrementally” – issuing a Rule

that constitutes another stop-gap fix under § 333(a). 81 Fed. Reg. at 42067, 42071,

42073.14

II. The Rule Violated Federal Statutes:

A. Standard of Review:

The FAA’s Rule should be reversed applying the first prong of Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778,

2781-82, 81 L. Ed. 2d 694 (1984).

When a court reviews an agency's construction of the statute which it

administers, it is confronted with two questions. First, always, is the

question whether Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress. If, however, the court

14 The FAA notes that it issued the Rule under § 333(a) rather than § 332 to avoid

the statutory airworthiness certification requirements it contends would otherwise

be necessary under statute – as a result of the devices in question being

characterized by the FAA as “aircraft.” 81 Fed. Reg. at 42073. Unlike § 332, “…

section 333(b)(2) allows it to find that airworthiness certification is not

necessary…” for specific devices. Id.

While Petitioner applauds the FAA not requiring airworthiness certificates

for commercial UAS (regardless of what creative legal contortions it required on

the FAA’s part), the FAA’s strategy points out the absurdities that occur when

application of statutory “aircraft” laws are attempted with small unmanned devices

– especially toys.

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determines Congress has not directly addressed the precise question at

issue, the court does not simply impose its own construction on the

statute, as would be necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or ambiguous with respect

to the specific issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.

Id.

The FAA’s Rule violated of § 336(a) of Pub. L. 112-95. It is a regulation

regarding recreational model aircraft, which is specifically prohibited under that

statute.

The FAA’s Rule also violated the Paperwork Reduction Act (44 U.S.C. §

3501, et seq.) by requiring operator notice to airports and the collection of other

data by the FAA without the agency’s compliance with the terms of that Act.

B. The Rule Violated § 336(a) of Pub. L. 112-95 by Promulgating a Rule

or Regulation Regarding Model Aircraft:

Congress has directly spoken to the precise question at issue. § 336(a) of

Pub. L. 112-95 specifically prohibits the FAA from promulgating rules or

regulations regarding recreational model aircraft, if those recreational model

aircraft meet specified size and safety-related criteria. That is exactly what the

FAA has done.

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14 C.F.R. § 101.41, created by the Rule, establishes a category of devices

exactly mirroring those identified in § 336(a). 81 Fed. Reg. at 42208. In doing so,

the Rule violated the prohibition of § 336(a) that the FAA “… may not promulgate

any rule or regulation regarding…” such devices.

While the violation may at first appear to be a technical one, the FAA’s

vague, arbitrary and capricious treatment of this new category undermines the very

purpose of § 336(a) by making it difficult or impossible for operators to know if

they are in compliance with the requirements for participation.

C. The Rule Violated § 336(a) of Pub. L. 112-95 by Creating a Rule or

Regulation that Applies Requirements of “Aircraft” onto Model

Aircraft:

The Rule perpetuates the FAA’s position, first applied in the Registration

Regulation, 80 Fed. Reg. 78593, that recreational model aircraft are a type of “civil

small unmanned aircraft system” and thus a type of aircraft generally. 14 C.F.R. §

107.1(a).

In a single action the FAA defies over a century of past treatment of

recreational model aircraft and brings the entire weight of traditional aircraft

statutes and regulations down upon all recreational model aircraft – in violation of

§ 336.

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Further, while operators of commercial small unmanned vehicles under Part

107 are subject to various exemptions from traditional aircraft regulation under the

Rule, operators of recreational model aircraft under Part 101 are not.

Recreational model aircraft meeting the criteria of § 336 are exempt from

the requirements of Part 107, but the FAA has no authority, and makes no attempt,

to exempt them from statutory requirements that apply to anything considered

under the law to be an “aircraft.”

This yields results that are as legally inescapable as they are absurd.

Certificates of Airworthiness: Prior to operation, every “Aircraft” is required

to have a certificate of airworthiness. 49 U.S.C. 44711(a)(1); 14 C.F.R. §

91.409(a)(2); See 81 Fed. Reg. at 42069.

Part 107 operators of commercial unmanned aircraft are exempted from that

requirement by 14 C.F.R. § 91.1(f); 81 Fed. Reg. at 42208.

There is no such exemption for recreational model aircraft operators.

Airman Certificates: Operators of “aircraft” are, by statute, required to have

airman certificates (i.e., pilot’s licenses). 49 U.S.C. § 44711(a)(2)(A) ; See 81 Fed.

Reg. at 42069.

In the Rule, the FAA states,

…[A]n airman certificate to operate a small UAS should be required

unless directly supervised by a remote pilot in command. This is in fact a

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statutory requirement, as 49 U.S.C. 44711(a)(2)(A) prohibits a person from

serving in any capacity as an airman with respect to a civil aircraft used or

intended to be used in air commerce ‘‘without an airman certificate

authorizing the airman to serve in the capacity for which the certificate was

issued.’’ The FAA’s statute defines an airman to include an individual ‘‘in

command, or as pilot, mechanic, or member of the crew, who navigates

aircraft when under way.’’ 49 U.S.C. 44711(a)(2)(A).

81 Fed. Reg. at 42088

Part 107 creates a special process for operators of commercial small

unmanned air vehicles to obtain a “remote pilot certificate” through a testing

procedure in fulfillment of the requirements of 49 U.S.C. § 44711(a)(2)(A). 14

C.F.R. § 107.12. 81 Fed. Reg. at 42210.

No licensing process, other than applicable to traditional aircraft, is defined

for recreational model aircraft. Because the FAA has imposed the “aircraft” label

onto recreational model aircraft through the Rule, it forces the application of a

statutory requirement that operators of these “aircraft” obtain pilot licenses. Such a

requirement violates § 336, and is patently absurd.

In addition to the aforesaid statutory constraints, many regulations long-

applied, and properly applied, to traditional manned aircraft were made applicable

to recreational model aircraft through the Rule in violation of § 336. See infra,

§ IV.B.2., p.44.

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D. The Rule Violated the Paperwork Reduction Act (44 U.S.C. § 3501,

et seq.) by Requiring Operator Notice to Airports and the Collection

of other Data by the FAA:

As acknowledged in the FAA’s Rule, the Paperwork Reduction Act (44

U.S.C. 3507(d)) “requires that the FAA consider the impact of paperwork and

other information collection burdens imposed on the public.” 81 Fed. Reg. at

42204; See 5 C.F.R. § 1320.8(a)(4).

While the FAA addressed other data collection requirements imposed by the

Rule in the context of Paperwork Reduction Act compliance (See 81 Fed. Reg. at

42204-06), it failed to consider the burdens imposed by the airport notification

requirements that affect only recreational model aircraft operators, under 14 C.F.R.

§ 101.41(e); 81 Fed. Reg. at 42209.

The notice requirements of 14 C.F.R. § 101.41(e) are subject to the

Paperwork Reduction Act because they constitute a required disclosure to a third

party and thus a “collection of information” under the Act. 44 U.S.C. §

3502(3)(A).

The FAA has developed a smart phone “app” called “B4UFLY.” The

function of this app is to assist operators in knowing whether the locations in

which they intend to fly are considered to be prohibited or require special notice

requirements, as in the case of nearby airports. See 14 C.F.R. § 101.41(e).

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In addition to admonishing the operators that they must notify the nearby

airport (if triggered by the operator’s location), the B4UFLY app collects, and

reports to the FAA, information about the operators’ locations and anticipated

operations, including the intended altitude, range and duration. See, e.g., EX43-46;

EX47. The app identifies this process as “B4UFLY Data Collection.” Id.

These data collections, both the required notice to the airport and the

collection of data using B4UFLY, required consideration by the FAA under 44

U.S.C. 3507(d) and reporting to the Office of Management and Budget, which did

not occur.

III. The Rule is Beyond the Scope of the FAA’s Statutory Authority:

A. Standard of Review:

Assuming, arguendo, that the Rule was not specifically prohibited by

§ 336(a) of Pub. L. 112-95, and not violative of the Paperwork Reduction Act, the

Rule would be unlawful because it lacks statutory authority. 5 U.S.C. § 706(2)(c).

The FAA lacks the statutory authority to regulate recreational model aircraft

as “aircraft” or to regulate operations of recreational model aircraft that do not

affect air commerce or the navigable airspace.

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Applying the second prong of Chevron, the agency's action is not based on a

permissible construction of the statute under which it claims authority. Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778,

2781-82, 81 L. Ed. 2d 694 (1984).

B. The FAA has Long Acknowledged that Recreational Model Aircraft

are Not Under FAA Authority as Aircraft:

By its terms, Part 107 applies to all recreational model aircraft that are not

exempt under Part 101. Part 107 states that it “applies to the registration, airman

certification, and operation of civil small unmanned aircraft systems within the

United States…” other than those specifically exempt under Part 101. 14 C.F.R. §

107.1(a).

This would result in any recreational model aircraft operations that do not

meet the exact specific criteria of § 336 being regulated as commercial unmanned

aircraft under Part 107.

Reversing decades of regulatory history, and without considering, or even

recognizing, the shift in policy, the FAA has only recently stated that recreational

model aircraft are “aircraft” pursuant to 49 U.S.C. § 40102(a)(6) and 14 C.F.R. §

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1.1. Clarification and Request for Information, 80 Fed. Reg. at 63914; Registration

Regulation, 80 Fed. Reg. 78593 at 78595.

Recreational model aircraft, however, are not “aircraft” within the meaning

of the law. The FAA has no authority to regulate them as such. The Rule is merely

a further unlawful extension of the FAA’s ongoing unauthorized regulation of

recreational model aircraft as “aircraft.” See Registration Regulation, 80 Fed. Reg.

78593.

For many years, the FAA consistently acknowledged it did not have

regulatory authority over recreational model aircraft prior to Pub. L. 112-95, and

that legislation certainly did not extend the FAA’s authority. Rather, Pub. L. 112-

95 adopted and codified the FAA’s interpretation at the time – that commercial use

small unmanned vehicles are “aircraft” subject to regulation as such, while

recreational devices are not.

Until very recently, the FAA had never claimed recreational model aircraft

were aircraft. The FAA was correct in 1981 when AC91-57 sought only to

“encourage voluntary compliance.” It was correct again in 2001 when it said of

model aircraft that, “Federal Aviation regulations do not apply to them.”15

It was

15 See EX4.

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also correct, starting in 2007 through the present, when it repeatedly drew a clear

distinction between “civil aircraft” and recreational model aircraft. E.g., Unmanned

Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689, 6690

(Feb. 13, 2007); FAA Order JO 7210.873, 3 (July 11, 2014) (EX9-11 (excerpt));

FAA Order JO 7210.882, 3 (July 11, 2015) (EX12-14 (excerpt)); FAA Order JO

7210.891, 2-3 (Nov. 25, 2015) (EX15-17 (excerpt)); FAA Website. EX5-8.

By its recent declaration that recreational model aircraft are “aircraft,” the

FAA takes an extremely broad and unprecedented reading of the statutory

definition of that term.16

It suggests the FAA has only just now realized the true

16 By statute, an “aircraft” is, “…any contrivance invented, used, or designed to

navigate, or fly in, the air.” 49 U.S.C. § 40102(a)(6). The statute provides that an

aircraft is something that is ultimately “used…to…fly…” and not simply

something that flies. The distinction is significant. An aircraft is a tool of manned

flight, used, by a person, to achieve that person’s flight. The FAA’s own

regulation is consistent with this distinction. 14 C.F.R. § 1.1 provides: “Aircraft

means a device that is used or intended to be used for flight in the air.” [emphasis

supplied]

In Huerta v. Pirker, NTSB Docket No. CP-217 (2014), a model aircraft operator

was fined for flying commercially, allegedly in violation of regulations applicable

to “aircraft.” Pirker made an argument similar to Petitioner’s regarding the correct

interpretation of the term “aircraft” under 49 U.S.C. § 40102(a)(6) as applied to

model aircraft. While Pirker won before an ALJ, the decision was reversed on

appeal to the NTSB. The case settled while on remand. Petitioner submits that the

decisional order of the ALJ is the better-reasoned decision for the reasons stated

here.

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meaning of the statutory definition of aircraft set forth in 49 U.S.C. § 40102(a)(6),

which had previously evaded them these many decades.

The FAA has sought to revise history when it argued its failure to treat

recreational model aircraft in any manner as “aircraft,” in the past was the exercise

of an “enforcement discretion.” See Clarification and Request for Information, 80

Fed. Reg. at 63913. Registration of recreational model aircraft as “aircraft” was

specifically not required by the FAA as recently as December 22, 2015. See EX18

(Dated Dec. 16, 2015, retrieved Dec. 22, 2015).

Prior to the FAA’s forced registration of recreational model aircraft in 2015,

a statutory requirement for registration of recreational model aircraft as “aircraft”

had never been suggested by the agency. The FAA’s position is revisionist history

at its worst.

Certainly, an agency is not estopped from changing a view it believes to

have been grounded upon a mistaken legal interpretation. Good Samaritan Hosp. v.

Shalala, 508 U.S. 402, 417, 113 S. Ct. 2151, 2161, 124 L. Ed. 2d 368 (1993);

citing Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 180–183, 77 S.Ct.

707, 707–709, 1 L.Ed.2d 746 (1957).

“On the other hand, the consistency of an agency's position is a factor in

assessing the weight that position is due.” Id. “An agency interpretation of a

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relevant provision which conflicts with the agency's earlier interpretation is

‘entitled to considerably less deference’ than a consistently held agency view.” Id.,

quoting INS v. Cardoza–Fonseca, 480 U.S. 421, 446, n. 30, 107 S.Ct. 1207, 1221,

n. 30, 94 L.Ed.2d 434 (1987), quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct.

1673, 1681, 68 L.Ed.2d 80 (1981). “How much weight should be given to the

agency's views in such a situation, will depend on the facts of individual cases.”

Id.; Cf. Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454

U.S. 27, 37, 102 S.Ct. 38, 44 (1981).

A “settled course of behavior embodies the agency's informed judgment

that, by pursuing that course, it will carry out the policies committed to it by

Congress. There is, then, at least a presumption that those policies will be carried

out best if the settled rule is adhered to.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 103 S. Ct. 2856, 2866 77 L. Ed. 2d

443 (1983), quoting Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S.

800, 807–808, 93 S.Ct. 2367, 2374–2375, 37 L.Ed.2d 350 (1973).

Petitioner submits that the FAA’s entirely new position regarding the status

of recreational model aircraft as civil aircraft, and therefore the applicability of Part

107, should be given no deference whatsoever, given the government’s

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universally-consistent, and wholly-appropriate, treatment throughout the history of

American aviation, and the FAA’s failure to provide a reason for such change.

C. Pub. L. 112-95 Codified the FAA’s Then-Existing Distinction

Between Recreational Model Aircraft and Civil Aircraft:

While the FAA might have, with proper justification, revised its

interpretation of “aircraft” prior to Pub. L. 112-95, Congress has now codified the

FAA’s distinction between commercial “civil aircraft” and recreational model

aircraft, removing any discretion the FAA might otherwise have had to simply

change its interpretation.

Pub. L. 112-95, rather than embracing recreational model aircraft as

“aircraft,” adopted the FAA’s position at that time, and from the beginning of time,

that recreational model aircraft are distinct from civil aircraft and not subject to

regulation.17

Pub. L. 112-95 maintained the distinctions established by the FAA

itself when it created separate regimes for: 1) civil unmanned aircraft, in § 332 and

17 E.g., “The Federal Aviation Administration’s current policy is based on whether

the unmanned aircraft is used as a public aircraft, civil aircraft or as a model

aircraft.” Unmanned Aircraft Operations in the National Airspace System, 72 Fed.

Reg. 6689 (Feb. 13, 2007).

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§ 333; 2) public unmanned aircraft, in § 334; and 3) recreational model aircraft, in

§ 336.

Congress has adopted the FAA’s consistent interpretation that recreational

model aircraft are neither “civil aircraft” nor “public aircraft” (the only two types

of aircraft that exist). As such they are not aircraft at all. 49 U.S.C. §

40102(a)(16).18

Congress enacted Pub. L. 112-95 in the context of the FAA’s policies and

interpretations in effect at that time.

Congress is presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation when it re-

enacts a statute without change. [citations omitted] So too, where, as

here, Congress adopts a new law incorporating sections of a prior law,

Congress normally can be presumed to have had knowledge of the

interpretation given to the incorporated law, at least insofar as it

affects the new statute.

18 Arguably, since Part 107 applies only to “civil small unmanned aircraft systems”

[emphasis supplied] (14 C.F.R. § 107.1(a)), a term which the FAA has consistently

used in the context of small unmanned aircraft to mean “commercial,” it has no

application to any recreational-use devices. In Case No. 15-1495, the FAA

acknowledged, “FAA sometimes uses the term “civil aircraft” as shorthand for

aircraft flown commercially, rather than for other purposes…” (FAA Brief in Case

15-1495, p.19). However, the FAA has expressed its intent to apply Part 107 to

recreational operations – despite those operations clearly not meeting the FAA’s

own consistent application of the term “civil” in this context. See, e.g., 81 Fed.

Reg. at 42081-82.

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Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S. Ct. 866, 870, 55 L. Ed. 2d 40 (U.S.

1978). Applying the principles of Lorillard, Congress is presumed to have known

the FAA claimed no authority to regulate recreational model aircraft. Indeed, the

whole point of § 336(a) was to codify that status.

The Rule stated that its purpose was to establish, “operating and certification

requirements to allow unmanned aircraft systems (small UAS) to operate for non-

hobby and non-recreational purposes [emphasis supplied].” 81 Fed. Reg. at

42065. However, it goes far beyond its stated goal by defining those purposes as

anything that falls outside of § 336(a)/14 C.F.R. § 101.41. Id. at fn2.

The unmanned commercial “civil aircraft” that the FAA had regulated in the

recent past, and which Congress sought to approve for future regulation under Pub.

L. 112-95 (§ 332; § 333), were only those genuinely used for commercial

purposes, rather than anything that might arguably be unable to meet the standards

of § 336(a).

D. It would be Inconsistent with the Clear Legislative Intent of § 336(a)

to Bring Recreational Model Aircraft Under the Voluminous Body of

Law Applicable to Civil Aircraft:

Within the Registration Rule, the FAA inexplicably argued that § 336, rather

than shielding the hobby, constituted Congress’ directive that the agency impose

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the full weight of its then-existing regulatory authority regarding actual “aircraft”

onto recreational model aircraft.19

The FAA gets this ironic reading solely from the use of the word “aircraft”

in defining “model aircraft.” See § 336(c). Petitioner submits such shorthand use

of the term does not evince an intent to bring recreational model aircraft within the

fold of actual aircraft – especially in the context of the FAA’s interpretation at the

time. While one might, of necessity, use the word “train” in defining a “model

train,” it does not turn a model train into a train.

It is nonsensical to suggest that Congress, through § 336, sought to protect

recreational model aircraft from the burdens of FAA regulation and, in the same

breath, bring them under the full weight of federal statutes and FAA aircraft

regulation for the first time in history – requiring, e.g., registration, certificates of

airworthiness and pilot’s licenses. The Registration Rule and the application of

various requirements of Part 107 to recreational model aircraft are exactly the

kinds of things that § 336(a) was intended to prevent.

19 “In Public Law 112–95, Congress confirmed that unmanned aircraft,

including those used for recreation or hobby purposes, are aircraft consistent

with the statutory definition set forth in 49 U.S.C. § 40102(a)(6).” [emphasis

supplied] Registration Regulation, 80 Fed. Reg. at 78599.

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As set forth herein (infra, § IV.B.2., p.44), identifying recreational model

aircraft as “aircraft” not only creates burdensome obligations for hobbyists, it also

brings recreational model aircraft under legal requirements that simply cannot be

met.

E. Part 107 Regulates Operation of Recreational Model Aircraft that

are not in Air Commerce and do not Endanger Airspace:

The FAA’s statutory authority relates to aircraft, and the use and protection

of navigable airspace and air commerce. 49 U.S.C. § 40103(b).

As the FAA noted in the Rule, air commerce is defined to include, “the

Operation of aircraft within the limits of a Federal airway, or the operation of

aircraft that directly affects, or may endanger safety in foreign or interstate air

commerce.” 81 Fed. Reg. at 42069, quoting 49 U.S.C. § 40102(a)(3).

That authority does not extend to activities occurring out of the navigable

airspace and which have no impact upon navigable airspace or air commerce. That

would include much of the operation of recreational aircraft restricted under Part

107.

As set forth above, recreational model aircraft are not “aircraft” and are not

in “air commerce.”

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In addition, they are not properly “within the limits of a Federal airway” and,

unless operated recklessly, do not directly affect or endanger safety in foreign or

interstate air commerce.

Model aircraft activity typically occurs below the thresholds for civil aircraft

operating in the navigable airspace, as guided by AC91-57A § 6(e). It occurs in

that lower airspace in which the landowner has, “exclusive control of the

immediate reaches of the enveloping atmosphere” recognized in United States v.

Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 1067, 90 L. Ed. 1206 (1946); see also

Griggs v. Allegheny Cty., Pa., 369 U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962).20

Restrictions on airspace use for recreational activities immediately above private

property, regardless of any reasonable connection to an actual danger to navigable

airspace or air commerce, not only lacks statutory authority, but threatens private

property rights recognized in Causby. The airspace immediately above a

landowner’s property has not been incorporated by Congress into the “public

highway” of navigable airspace. United States v. Causby, 328 U.S. 256, 260, 66 S.

20 The safety standards of AC91-57 §3(c) and AC91-57A §6(c)(5) and §6(e) which

guide model aircraft operators to fly no higher than 400 feet above the surface and

to notify airports when flying within three (later five) miles imply recognition of a

lower zone of private ownership and control, consistent with Causby, wherein

model aircraft may avoid entering the navigable airspace and avoid potential

interaction with air commerce.

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Ct. 1062, 1065, 90 L. Ed. 1206 (1946); see 49 U.S.C. § 40103(a)(2). Activities

solely in that private airspace that do not genuinely affect or endanger air

commerce are not properly within the FAA’s jurisdiction.

By applying Part 107 to recreational model aircraft, the FAA has stepped far

outside the scope of 49 U.S.C. § 40103(b) – applying it to activities it was never

intended to regulate. Petitioner submits that Congress, in giving the FAA authority

under 49 U.S.C. § 40103(b), did not intend the FAA to restrict people playing with

small flying toys (e.g., recreational model aircraft, Frisbees, paper airplanes) below

the tree lines in their own backyards.

The FAA has the authority to deal appropriately, and severely, with reckless

behavior. However, it does not justify nor authorize the FAA to restrict and

regulate all model aircraft operations that do not fall under § 336(a), including

those conducted safely and at extremely low altitudes.

IV. The Rule is Arbitrary and Capricious:

A. Standard of Review:

The Rule is arbitrary and capricious. See 5 U.S.C. § 706(2)(A). It evinces a

failed “rational connection between the facts found and the choice made.” Motor

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 103 S.Ct. 2856,

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2866-67, 463 U.S. 29, 43 (1983), quoting Burlington Truck Lines v. United States,

371 U.S. 156, 168, 83 S.Ct. 239, 245–246, 9 L.Ed.2d 207 (1962).

Normally, an agency rule would be arbitrary and capricious if the

agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to

the evidence before the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.

The reviewing court should not attempt itself to make up for such

deficiencies: “We may not supply a reasoned basis for the agency's

action that the agency itself has not given.”

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43, 103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983), quoting SEC v. Chenery

Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).

B. The Application of “Aircraft” Laws to Recreational Model Aircraft

is Arbitrary and Capricious:

Simply put, the FAA’s rules regarding real aircraft, when applied to

recreational model aircraft and other small flying devices, make no sense. The

absurd and contradictory results in applying full-size aircraft regulations to these

toys (e.g., altitude restrictions, onboard documentation, pilot licensing,

airworthiness certification) show a lack of “consideration of the relevant factors”

and “a clear error of judgment.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443

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(1983), quoting Bowman Transp. Inc. v. Arkansas-Best Freight System, 419

U.S.281, 285, 95 S.Ct. 438, 442. 42 L Ed. 2d 447 (1974).

Although the arbitrary and capricious standard of review is

deferential, the court will ‘intervene to ensure that the agency has

examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action. Where the agency has failed to provide a

reasoned explanation, or where the record belies the agency's

conclusion, we must undo its action.’

BellSouth Corp. v. F.C.C., 162 F.3d 1215, 1221-22 (D.C. Cir. 1999), quoting

Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C.Cir.1994).

1. The FAA Denies that a Change has Been Made, and Therefore

Fails to Provide the Justification for Change Required by the

APA:

The Administrative Procedure Act (5 U.S.C. 500, et seq.) requires an agency

to provide more substantial justification when “…its new policy rests upon factual

findings that contradict those which underlay its prior policy; or when its prior

policy has engendered serious reliance interests that must be taken into account.”

Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S. Ct. 1730, 135

L.Ed.2d 25 (1996). “It would be arbitrary and capricious to ignore such matters.”

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S. Ct. 1800, 1811,

173 L. Ed. 2d 738 (2009). An agency's decision to change course may be arbitrary

and capricious if the agency ignores or countermands its earlier factual findings

without reasoned explanation for doing so. The agency must explain why it now

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rejects the considerations that led it to adopt that initial policy. Id. at 535,

(Kennedy, J., concurring).

“To acknowledge that circumstances have changed … is not to eliminate the

burden upon the agency to set forth a reasoned analysis in support of the particular

changes finally adopted.” Farmers Union Cent. Exch., Inc. v. F.E.R.C., 734 F.2d

1486, 1500 (D.C. Cir. 1984).

“An agency cannot simply disregard contrary or inconvenient factual

determinations that it made in the past, any more than it can ignore inconvenient

facts when it writes on a blank slate.” F.C.C. v. Fox, at 537, (Kennedy, J.,

concurring). The core requirement an agency must meet when changing course is

that it must “provide reasoned explanation for its action,” which “would ordinarily

demand that it display awareness that it is changing position.” [emphasis in

original] Nat'l Ass'n of Home Builders v. E.P.A., 682 F.3d 1032, 1038 (D.C. Cir.

2012), quoting F.C.C. v. Fox.

In the Registration Regulation, the FAA took the position that recreational

model aircraft have always been aircraft and that a registration requirement was

nothing new. That position is maintained in the Rule’s application of Part 107, and

by implication all statutory and regulatory aircraft requirements, to recreational

model aircraft. The significance of the radical change the FAA is actually making

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is ignored, rendering the FAA’s action arbitrary and capricious. “Unexplained

inconsistency” between agency actions is “a reason for holding an interpretation to

be an arbitrary and capricious change.” Nat'l Cable & Telecomms. Ass'n v. Brand X

Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

The FAA can hardly be said to justify this radical positional change properly

when it denies there was any change at all - instead taking the frivolous position

that, “[h]istorically, the FAA has considered model aircraft to be aircraft that fall

within the statutory and regulatory definitions of an aircraft…” Interpretation of

the Special Rule for Model Aircraft, 79 Fed. Reg. 36172 (June 25, 2014). The FAA

denies the existence of this obvious change, despite voluminous evidence to the

contrary.

2. Laws Applicable to Aircraft have no Rational Application to

Model Aircraft and Defy Compliance:

The FAA’s sudden re-characterization of any contrivance that flies as

“aircraft,” and thereby allowing it to shoehorn recreational model aircraft into

aircraft regulations, places hobbyists in an untenable no-man’s land of compliance.

The FAA has taken us down a rabbit hole of irrationality to achieve its goal of

legally justifying regulation.

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In the Rule, the FAA acknowledges that, “… UAS operations cannot be

conducted in accordance with many of the FAA’s current operating regulations,

codified in 14 CFR part 91, that apply to general aviation.” 81 Fed. Reg. at 42068.

The FAA confirms that it has created a quandary, but provides no solution.

Model aircraft hobbyists have been guided for decades to take our toys no

higher than 400 feet above the surface. AC91-57 § 3(c); AC91-57A §6(e).

However, as aircraft pilots, we are now also legally mandated to comply with

conflicting higher minimum altitudes, pursuant to 14 C.F.R. § 91.119, that place

our model aircraft squarely in the middle of navigable airspace occupied by real

aircraft. It is impossible to comply with both directives. Surely forcing

recreational model aircraft into the navigable airspace of real aircraft does not

rationally further the FAA’s goal of protecting that airspace.

It is similarly impossible for recreational model aircraft operators to comply

with the FAA’s requirement that no person may operate an aircraft “unless it has

within it” the registration, as well as an airworthiness certificate and other

documents that are inappropriate to recreational model aircraft, (14 C.F.R. §

91.203(a); 14 C.F.R. § 91.9), and that the airworthiness certificate be, “displayed at

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the cabin or cockpit entrance so that it is legible to passengers or crew. [emphasis

supplied]” 14 C.F.R. § 91.203(b).21

The FAA contends that,

“… the requirements of part 107 will generally replace the airworthiness

provisions of part 21, the airman certification provisions of part 61, the

operating limitations of part 91, and the external load provisions of part 133.

However, part 107 will not apply to all small UAS operations. For the

reasons discussed below, part 107 will not apply to: (1) Air carrier

operations; (2) international operations; (3) public aircraft operations; (4)

certain model aircraft; and (5) moored balloons, kites, amateur rockets, and

unmanned free balloons.”

81 Fed. Reg. at 42074.

Assuming the FAA has successfully excluded Part 107 operators from those

requirements, some of which have statutory bases outside of the FAA’s ability to

circumvent, one question remains:

What about recreational model aircraft operators?

Hobbyists are not subject to the exclusions for Part 107 operators that the

Rule makes in: 14 C.F.R. § 21.1(a), 14 C.F.R. § 43.1(b)(3), and 14 C.F.R. §

61.1(a). 81 Fed. Reg. at 42208.

21 The requirement that aircraft keep these documents near the cockpit and legible

to passengers or crew removes any doubt that only manned aircraft were in the

contemplation of the government as those regulations were adopted.

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Therefore, as operators of “aircraft” we are apparently required to:

1. Have an Airplane or Rotorcraft Flight Manual. 14 C.F.R. § 21.5(a);

2. Only have our “aircraft” maintained and serviced by licensed aircraft

mechanics. 14 C.F.R. § 43.3(a);

3. Have an airman’s certificate (i.e., pilot’s license). 14 C.F.R. § 61.3(a); 49

U.S.C. § 44711(a)(2)(A);

4. Have a Certificate of Airworthiness for our toys. 49 U.S.C. 44711(a)(1);

14 C.F.R. § 91.409(a)(2).22

These contradictions and inconsistencies are, “…so implausible that it could

not be ascribed to a difference in view or the product of agency expertise.” Motor

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,

103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983).

3. The Rule Places Arbitrary and Capricious Airport Notification

Requirements Upon Recreational Model Aircraft

Operators:

14 C.F.R. § 101.41(e), created by the Rule, requires recreational model

aircraft operators to notify airports within five miles of any anticipated operation.

81 Fed. Reg. at 42209.

22 It is unlawful, by statute, to “operate a civil aircraft in air commerce without an

airworthiness certificate in effect or in violation of a term of the certificate.” Id.

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In the Rule, the FAA discusses whether it should require operators of civil

small unmanned aircraft systems to notify nearby airports prior to operation. 81

Fed. Reg. at 42149.

The FAA concludes,

"The FAA does not consider the notification of airport operators to

significantly enhance the safety of integration with existing operations. The

requirement for notification creates a burden on the airport operator with

little benefit to users of the airport, because the airport operator would have

no requirement to disseminate knowledge of small UAS operations to other

airport users.

Instead, remote pilots should adhere to operational recommendations

and discontinue operations if the potential for interference arises."

81 Fed. Reg. at 42149.

As a result of this conclusion, the FAA does not require, nor recommend,

notification of airports by Part 107 operators. See 14 C.F.R. § 107.43.

Despite the FAA’s determination that such notice constitutes a “…burden on

the airport operator with little benefit…” the Rule requires it of recreational model

aircraft operators under 14 C.F.R. § 101.41(e) (81 Fed. Reg. at 42209) if they want

to remain under the recreational model aircraft exception of 14 C.F.R. 107.1(b)(2).

A model aircraft operator who wants to fly a small toy, or arguably a paper

airplane, barely above the ground within five miles of an airport is thus placed in

the dilemma of either: 1) burdening the airport with a notice having “little benefit”

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(realistically none); or 2) taking a test, obtain licenses, and otherwise complying

with the complex and technical requirements of Part 107.

The FAA acknowledged in the Rule receiving public comments that,

“requiring notification when operating within 5 miles of an airport is too

burdensome.” 81 Fed. Reg. at 42082. However, rather than addressing those

comments (which are entirely consistent with the FAA’s own clear findings), the

FAA states that, “the FAA declines to address these issues here as they are

currently the subject of a separate regulatory action.” Id.

On the one hand, addressing the relative benefits and burdens of the

requirement are fundamental to this regulatory action and cannot merely await

future rulemaking at an indeterminate time. On the other hand, the issue actually

has already been addressed, and the FAA found the burdens to outweigh any

meager benefits. Either way, the requirement is arbitrary and capricious.

4. The FAA’s Failure to Address What Recreational Activities

are allowed Renders the Rule Arbitrary and Capricious:

The Rule merely parroted § 336 when it established a criterion for

recreational model aircraft operations as being when, “[t]he aircraft is operated in

accordance with a community-based set of safety guidelines and within the

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programming of a nationwide community-based organization,” 14 C.F.R. §

101.41(b). 81 Fed. Reg. at 42208.

The FAA acknowledged that a number of commentators raised concerns

about the clarity of that requirement – compliance with which is critical to achieve

the protections under the Part 107 exclusion associated with the recreational model

aircraft subsection. 81 Fed. Reg. at 42081-82.

The Rule notes that, “[w]ith regard to comments asking for additional clarity

as to what makes an organization a nationwide community-based organization

under section 336, … this issue is beyond the scope of this rule.” 81 Fed. Reg. at

42082.

Rather than provide the needed clarity, the FAA glibly suggests,

“…those model aircraft operations that do not wish to comply with a

community-based set of safety guidelines and operate within the

programming of a nationwide community-based organization will be able to

simply conduct their operations under part 107. Part 107 was designed to

impose the minimal burden necessary to ensure the safety and security of a

small UAS operation.”

81 Fed. Reg. at 42081-82.

Similarly, the FAA punts on identifying what activities would constitute

endangering the safety of the national airspace under 14 C.F.R. § 101.43 (81 Fed.

Reg. at 42209), borrowed from § 336(b). The FAA states that it, “…will defer

discussion of what qualifies as endangering the safety of the NAS to the

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Interpretive Rule” (a document that has been pending with the FAA for several

years). 81 Fed. Reg. at 42082.

A suspicious person might conclude that the FAA, rather than facilitating

compliance with § 336 by hobbyists, is attempting to make compliance impossible

- thus driving hobbyists to either engage in a complex and burdensome licensing

process antithetical to § 336 under Part 107, or simply abandon their hobby.

The FAA has issued an incomplete rule – wholly ignoring the fundamental

issues it recognizes are necessary for compliance.

5. The FAA Deferred Consideration of Important Relevant

Aspects of the Problem:

Within the Rule, the FAA acknowledged that many commenters noted,

“…[c]onsidering model aircraft to be ‘aircraft’ would effectively make these

aircraft subject to manned-aircraft regulations.” 81 Fed. Reg. at 42082.

It would seem fundamental that the FAA, before regulating model aircraft as

aircraft would address the basic question of whether they are indeed aircraft, and

the ramifications of such a determination – especially given that “many”

commenters had pointed out that problem. However, the FAA instead stated that

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it, “… declines to address these issues here as they are currently the subject of a

separate regulatory action.” Id.23

The Rule puts the cart before the horse, bringing myriad statutes and

regulations designed for traditional aircraft, many of which are clearly

inapplicable, onto the backs of recreational model aircraft hobbyists – all without

considering the effects.

In doing so, the FAA “…failed to consider an important aspect of the

problem…” and shown a clear lack of “consideration of the relevant factors.”

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43, 103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983).

Another serious concern, similarly expressed by “many commenters,” was

that, “requiring notification when operating within 5 miles of an airport is too

burdensome.” 81 Fed. Reg. at 42082; See 14 C.F.R. § 101.41(e). The FAA

similarly defers consideration of that issue, and provides the same explanation –

that it is the subject of a separate, and unresolved, rulemaking.

As set forth in § IV.B.3. infra, p.47, the FAA found , in the context of

commercial small unmanned air vehicle operation, that such notices are a

23 The referenced separate regulatory action is the Interpretation of the

Special Rule for Model Aircraft, which has been pending since June, 2014. Id.

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distraction to the airports that add nothing significant to safety. A mandate is

imposed while the reasoning is deferred.

Another requisite criterion for hobbyists to avoid imposition of the

requirements of Part 107, under the Rule, is that they operate, “…in accordance

with a community-based set of safety guidelines and within the programming of a

nationwide community-based organization.” 14 C.F.R. § 101.41(c).

Common sense would require that “a community-based set of safety

guidelines” and “the programming of a nationwide community-based

organization” be defined within the regulation, but they are not.

Like the other issue ignored by the FAA, these are important and relevant

aspects of the problem that are not considered by the agency in its rulemaking. As

set forth in § V.C. infra, p.57, the failure to define these terms also renders the

Rule unconstitutionally vague.

V. The Rule is Unconstitutionally Vague

A. Standard of Review

5 U.S.C. § 706(2)(B) provides that a “.. reviewing court shall … hold

unlawful and set aside agency action, findings, and conclusions found to be …

contrary to constitutional right, power, privilege, or immunity.”

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“The Due Process Clause's prohibition against vague restrictions ‘requires

that a penal statute define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.’”

United States v. Thomas, 864 F.2d 188, 194 (D.C. Cir. 1988), quoting, Kolender v.

Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); See

United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989

(1954).

B. The FAA’s Interpretation of “Aircraft” would render the Defining

Statute Irrationally, and Unconstitutionally, Vague:

If the definition of “aircraft” is not so broad as to include, e.g., tiny flying

toys and paper airplanes, then we are left with no clarity about what the FAA

considers to be an aircraft, and upon what rational basis that determination is made.

People are entitled to a coherent and applicable definition of a term governed by

such a massive and important body of federal regulation. It should not be subject

to the FAA’s ever-changing whim. When an agency seeks to change its

interpretation of so fundamental a term as is this, it must act with clarity, such that

a reviewing court can discern if its actions are within the agency’s mandate from

Congress. See Atchison, T. & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800,

806-07, 93 S. Ct. 2367, 2374, 37 L. Ed. 2d 350 (1973). The interpretation we are

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left with here by the FAA, i.e., that any contrivance that flies is a federally-

regulated aircraft, exceeds any reasonable scope of congressional authority.

Otherwise, it is so murky and undefined as to be not only unusable, but

unconstitutionally vague. 5 U.S.C. § 706(2)(B); see United States v. Harriss, 347

U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).

Citing an NTSB decision in Huerta v. Pirker, NTSB Docket No. CP-217

(2014), the FAA argues that, “… the statutory and regulatory definitions of aircraft

are ‘clear on their face’ and ‘draw no distinction between whether a device is

manned or unmanned.’” 81 Fed. Reg. at 42074.

The FAA provides no explanation why it took the federal government

almost a century to apply new definitions that are supposedly “clear on their face.”

The core irrationality of the FAA’s approach to recreational model aircraft is

revealed in its treatment of manned “ultralight” aircraft. In a bizarre twist, the

operator of an ultralight aircraft, which can weigh up to 254lbs, carry a human

pilot and five gallons of gasoline,24

need not register it, but the operator of a small

flying plastic model of that exact same aircraft, using battery powered electric

motors and occupied only by a tiny plastic figurine pilot, must register before

24 14 C.F.R. § 103.1.

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flying his toy under the Registration Regulation. 14 C.F.R. § 103.7(c). This is

presumably because the FAA has not treated ultralights as actual aircraft, despite

their manned nature. Until the Registration Regulation, recreational model aircraft

shared that same status.

No rational bases for these distinctions are provided anywhere by the FAA,

and Petitioner submits that none exists.

There are other inconsistencies in the FAA’s application of the word

“aircraft.” The FAA states on its website in the context of registration that it “…did

not intend for rockets, unmanned free balloons, moored balloons and kites to be

registered, as those devices are generally not considered ‘aircraft.’” [emphasis

supplied]25

However, the legal criteria of the definition are as applicable to recreational

model aircraft, which are also “generally not considered” aircraft, as they are to

those other devices.

25 FAQ, Question 16, EX37-38.

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C. The FAA’s Failure to Define “Community-Based Organization” or

“Programming” Renders the Rule Irrationally, and

Unconstitutionally, Vague:

The statutory protections for the hobby under § 336 extend to model aircraft

that are, “…operated in accordance with a community-based set of safety

guidelines and within the programming of a nationwide community-based

organization.” § 336(a)(2).

The FAA cut-and-pasted that language into the Rule verbatim. 14 C.F.R. §

101.41(b). 81 Fed. Reg. at 42008-09.

In doing so, the FAA provided no definitions, clarification or guidance.

What are “community-based” guidelines? What is a “community-based

organization?” What is meant by its “programming?”

In the Rule, the FAA notes that, “[w]ith regard to comments asking for

additional clarity as to what makes an organization a nationwide community-based

organization under section 336, the FAA notes that this issue is beyond the scope

of this rule.” 81 Fed. Reg. at 42081-2.

However, the FAA has left the regulation in a state where an ordinary person

cannot understand what conduct is prohibited. It invites arbitrary and

discriminatory enforcement. See United States v. Thomas, 864 F.2d 188, 194 (D.C.

Cir. 1988).

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The FAA has set up a system wherein the hobbyists cannot possibly know if

their actions are compliant and thereby fall within the exception so clearly

contemplated by Congress.

If adult hobbyists are unable to determine whether their operations are

lawful, how can children playing with small flying toys supposed to comply? How

can they know if they are playing a child’s game in their back yards or committing

a federal felony?

The FAA has manipulated the language of § 336, intended to protect the

hobby, to create a fearful regulatory environment where people left afraid to

engage in a hobby which Congress clearly sought to protect.

CONCLUSION & RELIEF SOUGHT

Petitioner requests this Honorable Court to hold unlawful:

1. The FAA’s adoption of 14 C.F.R. § 101.41.

2. The FAA’s inclusion of recreational model aircraft under its regulation of

civil small unmanned aircraft systems in 14 C.F.R. § 107.1(a).

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AFFIDAVIT

The undersigned confirms, under penalty of perjury, that the representations

of fact contained herein are true and correct, and the documents submitted herewith

are authentic to the best of his knowledge, information and belief.

/s/ John A. Taylor

John A. Taylor

Respectfully Submitted,

/s/ John A. Taylor

John A. Taylor, pro se

4115 Ferrara Drive

Silver Spring, Maryland 20906

(301) 942-3040

jat@wolfenstock.com

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CERTIFICATE OF SERVICE

I HERBY CERTIFY that I electronically filed the foregoing Brief, along

with referenced Addenda and the Appendix, with the Clerk of the Court for the

United States Court of Appeals for the D.C. Circuit by using the appellate

CM/ECF system.

The participants in the case are registered CM/ECF users and service will be

accomplished by the appellate CM/ECF system.

/s/ John A. Taylor

John A. Taylor

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