On May 19, 2017, the District of Columbia Circuit Court of Appeals upheld the challenge by a drone user who claimed the Federal Aviation Administration’s (FAA’s) drone Registration Rule promulgated in December 2015 ran afoul of the clear mandate found in the FAA Modernization and Reform Act of 2012 in which Congress provided that the FAA “may not promulgate any rule or regulation regarding model aircraft.”

In a ruling authored by Circuit Judge Brett Kavanaugh, the court pointed out that the FAA’s Registration Rule, which called for the registration of drones (actually the registration of “all small unmanned aircraft, including small unmanned aircraft operated as model aircraft used for recreational purposes”), was just that, a regulation regarding model aircraft, which was prohibited. This ruling seems to apply only to registration of such unmanned aircraft flown visually if the unmanned craft is also “flown for hobby or recreational purposes.” This means that commercial drones still need to be registered and flights by any craft in Washington, DC, are restricted to certain locations.

What happens next is up to the FAA. Given that drone terrorism attacks have been the subject of two popular White House dramas, there might be some incentive to revisit the FAA Modernization and Reform Act of 2012, which may itself need to be modernized given the proliferation of drones and their growing popularity. The FAA Registration Rule was accompanied by certain model aircraft flight restrictions in Washington, DC, so maybe that will be sufficient security for those concerned about the potential for nefarious drones in our capital.

FAA statistics regarding registration in the short time the Registration Rule has been in effect (17 months) reflect that close to 800,000 drone pilots have registered and the cost of drone ownership continues to drop. Even five years ago, estimating the increase in drone sales and the potential security implications that could follow would have been difficult. Judge Kavanaugh now has pushed the matter back to the legislature to decide if drone regulations require even more modernization and reform. Maybe a drone is not a model aircraft?