The question had previously been pondered by most drone operators – Has anyone ever been charged by the FAA for not registering their drone? The answer had always been assumed to be no. That assumption was flatly wrong as you are about to learn – and with it, the tale of a FAA enforcement action that leads to more questions than it does answers, including “is the FAA’s enforcement even legal?”
Many will recall that the FAA imposed drone registration back in November of 2015. The FAA was seeking to have all drone operators register their “aircraft”.
Note that this registration requirement came long before Part 107 regulations at a time when model aircraft were specifically exempted from regulations by Congressional order in Section 336 of the 2012 FAA Modernization and Reform Act (FMRA). The issue of registration was contentious at the time and led to attorney John Taylor filing suit against the FAA in Federal court on the charge that imposing such a requirement amounted to regulation against Congress’ express instructions.
Excerpt from the Taylor v. Huerta decision: “The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.”
Taylor would ultimately win in District Court on May 19th, 2017 which tossed out hobbyist registration until it would later be reinstated by Congress with the signing of the National Defense Authorization Act (NDAA) on December 17th, 2017. This meant that during the nearly 7 months of time between those two dates, hobbyist registration was not required. The timeline here is extremely important – the entire summer and all of autumn for 2017 was free from hobbyist registration mandate. Hobbyists could fly at that time following the requirements of the Section 336 for model aircraft – or specifically Part 101 regulations and did not need to be registered. So long as they met the full criteria of Part 101, they also were not subject to any Part 107 regulations. These facts didn’t, however, seemingly come into play for an incident that led to a FAA enforcement action.
In the enforcement action (full document below) you will note that the FAA charges that K.C. “on or about August 26th, 2017” flew a DJI Spark that (1) was “not registered”, (2) the operator “did not hold an FAA-issued airman certificate” and (3) the UAS was operated “over persons”.
The remaining charges of the proposed enforcement action all are contingent upon those three items – each further issue expressing “by reason of the above”.
As we know from other FAA enforcement actions against hobbyists, the FAA enforcements have not been on Part 101 regulations, but rather they shift the operator into Part 107 violations when any part of the criteria for Part 101 have not been adhered to. So, we’re forced here to examine what exactly K.C. did do to shifted him from the protections of Section 336 / Part 101 such that he could be charged with non-compliance with Part 107 regulations. This is where things become very troublesome.
Indeed, K.C.’s DJI Spark was not registered. But nor was there any requirement for such due to the Taylor v. FAA decision vacating the registration requirement and establishing the gap between May 2017 and December 2017 when registration was not a legal mandate. This takes the first reason for the enforcement off the table. Next, as a hobbyist an operator does not need to hold an FAA-issued airman certificate. The FAA jumped the gun throwing K.C. into the Part 107 mix due to an erroneous violation of registration. Finally, we have the flight over persons accusation being used to press for action under 107.39, only Section 336 / Part 101 had no such specified condition. Some Community Based Organization’s (CBO) flight safety guidelines actually directly allowed such. Taking this into account, it is readily apparent that the FAA’s basis for the action was pursuant to the lack of registration – which they charged was a violation of 91.203(a)(2). It is also then apparent that the FAA completely forgot that registration was NOT required at that time.
Essentially then, we have the very first known FAA enforcement action of a hobbyist solely for failing to register. At the same time we have clear information that the FAA either was failing to recognize (either accidentally or purposefully) that registration was not required.
There are, indeed, further details to this case that are equally stunning. The complaint to the FAA that began this enforcement action was initiated by K.C.’s neighbor. That neighbor claimed that the UAS was flying directly over both she and her daughter (and you guessed it) spying on them at the beach. The FAA senior council offered that they used YouTube video as their evidence showing that K.C. operated the drone. I can offer that K.C.’s version is that his son (a minor – 11 years old) was operating the drone in question at the time and that the UAS was not over his neighbor – which he said he proved by showing the video to the local police when they arrived to take the neighbor’s complaint. He further added that there have been a great many run-ins between himself and this neighbor over a number of matters (unrelated to drone use).
It’s hard to extract lessons learned from this incident. There have been neighborly disputes since the dawn of time. It is always cautioned that the FAA is watching for YouTube as evidence. And we’ve long known that UAS operators, regardless of whether they are commercial operators or hobbyists are charged with Part 107 violations. But one thing now is absolutely certain and proven by this enforcement action – the FAA is quite willing to issue an enforcement based upon the lack of registration, even when it was NOT required.
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