(copy/paste from above PDF, sorry for lack of proper formatting):
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 properly controlled by the FAA.
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 prohibiting FAA regulation of model aircraft that were operated recreationally and met certain safety-related criteria in § 336(a).
Despite this clear statutory prohibition, on December 16, 2015 the FAA issued the Interim Final Rule, requiring the registration of all but a few types of recreational model aircraft.
In addition to being a violation of the statute, the creation of the registry otherwise lacked statutory authority. The FAA acted under the specious theory that recreational model aircraft had suddenly become “aircraft” and must be registered under a previously unused statutory mandate dating back to 1926. The FAA’s USCA Case #15-1495 Document #1619133 Filed: 06/14/2016 Page 23 of 88
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broad new interpretation of the definition of “aircraft” would similarly make Frisbees, paper airplanes, and other small flying toys subject to the myriad statutes and regulations applicable to “aircraft.” Further, the FAA created an unauthorized registry, not truly of devices, but of people, and mandated, without authority, that owners commit to specific intended flying practices as a condition of registration.
In a reactionary rush to do something, however ineffectual, in response to unreasonable fears of “drones,” the FAA not only violated statutory prohibitions and bypassed the Administrative Procedure Act, but shoe-horned all flying toys into the body of aviation regulation in a manner that renders the regulation, and the process it creates, arbitrary and capricious. The FAA applies a body of law, designed for real aircraft, to toys, in a way that results in an absurd regulatory scheme that defies compliance.
In adopting the Interim Final Rule, the FAA failed to follow the notice and comment requirements of the Administrative Procedure Act. The FAA claimed it had “good cause” to ignore these requirements, under the theory that it would be impracticable and contrary to public interest to do so. However, there was no impracticality, nor imminent threat to life or property, to justify bypassing that statutory requirement, and any timing concerns were of the FAA’s making. USCA Case #15-1495 Document #1619133 Filed: 06/14/2016 Page 24 of 88
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Within days of Petitioner’s filing of Case No. 15-1495, the FAA declared the entire Washington, D.C. metropolitan area, and beyond, to be a “no drone zone” - suddenly applying a 2008 regulation intended to ensure communication with aircraft and facilitate protection against an aircraft attack on the nation’s capital.
In doing so the FAA again: 1) violated § 336(a); 2) prohibited activity outside of its statutory authority; 3) acted arbitrarily and capriciously; and 4) violated the notice and comment requirements of the Administrative Procedure Act.
