WASHINGTON D.C. —­­ Yesterday, TechFreedom urged the D.C. Circuit to strike down drone registration requirements. The amicus curiae brief supports independent drone operator John Taylor’s challenge to the Federal Aviation Administration’s December 2015 Interim Final Rule requiring the registration and marking of all drones weighing more than 250 grams, even those operated by ordinary Americans for recreational purposes.

Registering drones may or may not be sound policy, but the FAA clearly broke the law in enacting this mandate,” said Berin Szóka, President of TechFreedom. “Congress specifically told the FAA not to regulate model aircraft, a broad term that includes hobbyist drones — yet the FAA did just that. And as if putting its thumb in the eye of Congress weren’t bad enough, the FAA also also violated the most fundamental commandment of administrative law: Thou shalt not regulate without providing a full opportunity for the American people to comment on the proposed rules. If the FAA can get away with these two violations of law, no technology will be safe from government overreach.”

To circumvent Congress’s clear mandate for a freeze on regulation of model aircraft used for recreational purposes, the FAA claims that all model aircraft owners have always been required to register with the FAA, using paper forms, but the FAA has simply exercised its discretion to forbear from this requirement.

It’s hard to see how much more clear Congress could have been in trying to stop overzealous regulators from meddling with drones,” said Tom Struble, Policy Counsel at TechFreedom. “But instead of explaining the policy case for drone registration to Congress, the FAA just went ahead and did what it wanted — in the most rushed, poorly reasoned way imaginable. The FAA has had years to address the proliferation of drones, yet dragged its feet until last October, when it issued a vague notice indicating that it wanted a drone registry and that it was establishing a task force to work on the issue. Then, in December, the FAA issued what it calls ‘interim’ rules, claiming it didn’t have to follow the notice-and-comment process because Christmas was coming. Thus, the FAA created a false sense of urgency and a manufactured crisis, when in fact there’s no more hard evidence to indicate that drones create any more risk to aviation than a few more birds in the air.”

The parallels here with the FCC’s lawlessness on Internet regulation are striking,” concluded Szóka. “Both agencies ignored Congressional instructions not to regulate, invented their own regulatory framework instead of helping Congress craft one, manufactured a perceived crisis to justify regulation, failed to do real analysis of the tradeoffs inherent in regulation, and failed to give those affected by regulation a clear picture of what the agency was going to do so they could comment appropriately on it. Perhaps most chilling, both agencies have claimed sweeping discretion to forbear or unforbear from regulation. The FCC won its first battle on the Open Internet Order precisely because the court said the FCC could exercise its discretion however it wants. That means regulation will now become a political game of ping-pong, oscillating up and down depending on who wins elections. That will deny tech innovators any real predictability and deeply politicize tech policy. The courts must rein in these agencies by ceasing to defer so blindly to them under Chevron, a decision the Supreme Court has been limiting, slowly but surely, as became clear just this Monday.”


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