In early August, RaceDayQuads dropped a 14,000-word, 154-page brief in a potentially ground-shaking case challenging the legality of the Federal Aviation Administration’s actions during the two years it took to finalize its early 2021 final rule on Remote Identification (RID) of Unmanned Aircraft. A win for RDQ would likely blow up the rule and require the FAA to go back to square one on its process. The cascading effects could include additional delays in routine expanded commercial drone operations, including operations over people and beyond visual line of sight. It could also impact implementation of a low-altitude unmanned traffic management system. All of these operations and systems remain critical to getting the nascent commercial drone industry off the ground. On Oct 5, after receiving a 30 day extension to respond, the federal government filed its 86-page reply. The fight is officially on.
The Rule RDQ is Trying to Get RID Of
The RID rule requires all drones over 0.55 pounds that register with the FAA to have an “electronic license plate” in the form of either an RID capability integrated into the drone at the time of manufacture (Standard RID drone) or attached to the drone as an RID broadcast module (Broadcast Module RID or BMID drone). The required RID technology would transmit “message elements” (MEs) through a broadcast signal, which would be available to any member of the public, that would include, among other things, the location of the drone and its operator.
Law enforcement and security agencies would additionally have the ability to triangulate these MEs with FAA registration data, to help pinpoint bad actors. RID non-compliant drones would only be permitted to fly in Federally Recognized Identification Areas (FRIAs), which only FAA-recognized Community Based Organizations (CBO) or educational institutions can apply to carve out. The FRIA policy is currently being written.
The rule became effective on April 21, but drone operators do not have to comply with it until September 16, 2023. Drone manufacturers have a shorter leash. They must start baking in RID capabilities before the production compliance deadline of September 15, 2022.
The final rule surprised many in the drone industry because it differed so significantly from the FAA’s original proposal in its Notice of Public Rulemaking (NPRM). Published on New Year’s eve 2019, the NPRM focused on a network-based RID solution in which Standard RID drones would be required to have both network and broadcast capabilities. Limited RID drones, which the FAA jettisoned in the final rule and replaced with the BMID drone, would have been network-only. The final rule deviated from the proposed rule in several other important respects outlined in the brief.
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The NPRM remained available for public comment until March 2, 2020, despite requests to the FAA to extend the comment period. In those 90 days, the agency received a record-breaking 53,000 comments. According to Tyler Brennan, the 27-year old owner of RDQ, one the world’s leading distributors of racing drones, and his three attorneys, the FAA simply ignored many of the concerns raised.
The Teams Have Assembled
Brennan has drafted a formidable legal team to represent RDQ to address this and other concerns. Jonathan Rupprecht, a Florida-based attorney who is also an FAA certificated flight instructor and unmanned aircraft certified pilot, has a winning track record on challenging FAA rules, having prevailed over the FAA in Taylor v. Huerta, which overturned the agency’s 2015 registration requirement for recreational aircraft.
RDQ’s team also includes Kathleen Yodice of Yodice Associations in the Washington, D.C., area and Elizabeth Candelario, a partner with cloud-based Parlatore Law Group. Yodice, who has been representing aviation legal interests for 35 years, is also an instrument-rated pilot, former FAA prosecutor, and was part of the Taylor case team with Rupprecht. Candelario has over 13 years of experience in private practice representing individuals and organizations in a variety of challenges to agency actions.
The government’s 9-person powerhouse legal team consists of attorneys from the Department of Transportation, the FAA and the Department of Justice.
RDQ Fires The First Shots
RDQ is taking the FAA to task for a number of reasons because the RID rule presents significant challenges for the drone-racing, or “FPV” (first person view) community. According to Brennan, the FRIA concept does not take into account the fact that 99% of FPV pilots currently fly in parks, woods and in their own backyards, not in the open fields of likely CBOs, such as the Academy of Model Aeronautics (AMA).
But the case is about much more than flight locations. There’s also big money at stake. Brennan estimates that drone racing enthusiasts in the U.S. alone spend about $75 million a year on FPV-related equipment. This group is part of the larger drone hobby and recreational flyer market, which exceeded $1.25 billion in sales in 2020, according to Statista. Taylor says that retrofitting, or discarding, the 10,000 FPV drones in his inventory would be a hammer blow for his business, which grossed over $18 million in sales last year with 150,000 orders fulfilled.
Jonathan Rupprecht argues that the rule will raise the barrier for entry for drone hobbyists. Most FPV drones, which are purposely built small and light, sell for $150 or less. “Weight issues aside, adding the required RID broadcast module will double or possibly triple the price,” noted Rupprecht. He continued, “China makes most FPV drones right now. Assuming China can build RID into FPV drones, will the FAA even certify them, given the current geopolitical climate? Millions of drones may be grounded for lack of an available supply chain.” The FAA says that the recreational drone fleet alone consists of 3.4 million drones.
RID implementation costs will be passed on to the entire drone industry and likely to have a significant financial impact on the commercial drone market, not just at the time of the purchase of the equipment, but in also maintaining it over time. Yodice said, “No one really knows what it will cost the average drone manufacturer to include RID technology or to build an RID module. Whatever the cost, it will be passed on to the consumer in increased sales or services pricing.”
And yet the case is not just about money. Candelario added, “Government regulations that impose costs on the public must be fully and fairly considered and the public should have a say in how the government determines how far the regulations need to go to achieve the mission of the agency.” Beyond giving the public a voice, the RDQ team posits that this case is also very much about first principles. Yodice and Candelario noted that any government regulation must also protect the public’s constitutional rights.
Brennan stated, “We are seeking to protect the constitutional rights of U.S. citizens to be free from unreasonable searches from the government when they are flying in their own backyards.” This Fourth Amendment issue is one of five presented in the brief. The others include the FAA’s alleged arbitrary and capricious reliance upon undisclosed ex parte (outside of the record) communications, the final rule’s disconnect from the NPRM (not a logical outgrowth), failure to consult with RTCA and NIST (a legal mandate) and a purported failure to address significant public comments. Highlights from the brief include:
- 4th Amendment: “The FAA and law enforcement can track everyone, everywhere, all the time, without any time or location constraints” including from the curtilage area of one’s own home, in violation of the warrant requirement and related Supreme court jurisprudence
- Ex Parte: Among other things, an FAA-created and non-public industry Cohort of 8 companies with a financial interest in RID, who according to the FAA’s own RID rule, influenced the rule’s outcome in violation of the law and Department of Transportation rules
- Ignoring Comments: the FAA did not respond adequately or at all to material comments about the FAA’s statutory and constitutional authority to regulate non-commercial drones and non-navigable airspace; inaccurate data relied upon in the regulatory analysis; reasonable alternatives to the excessively broad and burdensome requirements; and questioning the safety justifications of the rule
Per the brief’s Summary: “The FAA flagrantly disregarded mandates from Congress, ignored material comments, including failure to provide any actual safety justification or authority for the rulemaking, implemented changes not logically flowing from the NPRM thereby circumventing required notice and comment, and trampled Fourth Amendment rights.”
The Government Fires Back
The government’s brief denied RDQ’s allegations. To cover all bases, it doubled down on a host of reasons to justify various FAA actions, should the court find the allegations to be true.
On the constitutional front, the brief took the position that the RID “digital license plate” does not equate to an unreasonable search under the 4th Amendment. The drones will be in the air, it explained, which is already “extensively” regulated by the FAA. And there is no privacy right in the movement of planes up there.
While the activity of monitoring movements may violate privacy, simply requiring the installation of a tracking device alone does not. The rule mandates a tracking capability, but it would be up to the various security agencies as to how they access and use the available information.
Even if the rule’s requirements did amount to a search, the brief continued, “‘special needs’ associated with public safety and national security” otherwise justify it under the law.
On the issue of ex parte communications, the government admitted the FAA had held a RID tech demo, encouraged RID-related R&D and created an industry cohort. It averred that none of these efforts impacted the final version of the rule. “Even assuming that the FAA considered materials from the cohort in abandoning the rule’s internet-transmission requirement, petitioners lack standing to challenge that alleged procedural violation,” the brief stated.
Finally, the brief said the FAA responded to all material comments in the final rule and was not required to “discuss every item of fact or opinion included in [those] comments.” That said, the government noted it relied heavily on those public comments when it decided to switch to broadcast only RID, including Brennan’s own comments requesting the FAA not adopt a network solution.
The Way Ahead
As for next steps, RDQ, as plaintiff, gets a second bite of the apple with an opportunity to file a reply brief due in about 30 days. Oral arguments will take place next. A court ruling will follow probably not until early 2022.
Looking into the crystal ball, it’s hard to know which side will prevail. As a matter of principle, courts avoid ruling on weighty constitutional issues when they can. Will any of the alleged procedural flaws fly? Only time will tell.
In the meantime, given the one-year-out production compliance window, all hobby and commercial drone manufacturers remain in limbo. Producing Standard RID drones or BMID modules now presents a risk, should the court require a RID rule do-over.