If At First You Don’t Succeed…

Seemingly undeterred by his stinging defeat in the Texas EquuSearch’s v. FAA case, attorney Brendan Schulman is making another attempt to have the D.C. Circuit invalidate the FAA’s UAS rules.  As our readers will remember, Texas EquuSearch brought an action earlier this year seeking to declare any effort by the FAA to regulate commercial UAS operations invalid.  As we predicted, that action was dismissed without ever reaching the merits.

The new suit is brought by Mr. Schulman on behalf of the UAS America Fund, Skypan International, Peter Sachs, and FPV Manuals, and challenges the FAA’s Special Rule for Model Aircraft.  The model aircraft rule has proven so controversial among hobbyists that it generated over 29,000 public comments, and led to the FAA extending the public comment period an additional 60 days, to September 23, 2014.

The action claims that the Model Aircraft Rule is improper because it “makes commercial activities” involving UASs illegal.  Each of the Plaintiffs in the suit are entities who claim they want to engage in commercial activities, but are prevented from doing so by the Model Aircraft Rule.  The petition filed by Plaintiffs is nothing more than a very sketchy outline of who the Plaintiffs are and how the Model Aircraft Rule has impacted their businesses.  The real substance of the arguments is missing, beyond a boiler-plate statement that the Rule is:

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, in excess of statutory jurisdiction, authority, or limitation and without observance of procedure required by law.

From this, it is safe to assume that Plaintiffs believe the Model Aircraft Rule is really, really, really bad.  Setting aside the question of whether this suit will make it past the jurisdictional problems that resulted in dismissal of the Texas Equusearch case, the suit will face a very hard battle on the merits.

As we discussed earlier, the Model Aircraft Rule was not a substantive rulemaking, it was an interpretive rule.  As such, it is merely a restatement of existing law, i.e. 49 U.S.C. et seq., the Federal Aviation Regulations, and the 2012 FAA Modernization and Reform Act.  In particular, the distinction between commercial UAS and hobby UAS that the Plaintiffs are challenging comes directly from the 2012 Act.  As a result, in order to prevail, the Court will have to find not just that the FAA is acting in an arbitrary and capricious manner, but that Congress was so far off the reservation when it passed the 2012 Act, that it has to be invalidated.

The Court cannot invalidate the hobby/commercial distinction simply because it might be stupid or bad policy, it will have to find that there is no possible justification for the choice Congress made, and that the safety of the National Airspace cannot be impacted by unrestricted commercial UAS flight.  A daunting task indeed.

The petition concludes with a promise that the arguments will be “set out more specifically” in a future brief.  We will have to see if Plaintiffs can deliver on that promise.

(Originally posted August 25, 2014)

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