David Gonzalez chases drift cars using a FPV drone at an Orlando race track, Florida. This footage provides... [+] unheard drone footage of drivers in April 2020. A lawsuit has been filed alleging that a new FAA rule raises serious concerns for the FPV drone community. Tyler Brennan, RaceDayQuads
RaceDayQuads filed a 14,000 word, 154 page brief in an important case challenging the legality and timeliness of the Federal Aviation Administration's actions over the last two years to finalize its final rule on Remote Identification of Unmanned Aircraft (RID) in early 2021. A win by RDQ would likely end the rule and force the FAA back to square 1. Additional delays could result in expanded commercial drone operations. This includes operations that are over people or beyond the visual line of sight. This could have an impact on the implementation of a low altitude unmanned traffic management program. These systems and operations are crucial to the success of the emerging commercial drone industry. After a 30-day extension, the federal government submitted its 86-page response on October 5. Officially, the fight is on.
The Rule RDQ is a way to get RID of
All drones weighing more than 0.55 lbs must register with the FAA. The electronic license plate can be either an RID capability embedded in the drone at the time it is manufactured (Standard RID drone), or attached to the drone as a RID broadcast module (Broadcast Module RID, or BMID drone). The RID technology required would transmit message elements (MEs), via a broadcast signal that would be accessible to all members of the public. This would include the operator's location and the time of flight.
Security agencies and law enforcement would also be able to triangulate the MEs with FAA registration data to identify bad actors. RID-incompatible drones will not be allowed to fly in Federally Recognized ID Areas (FRIAs), where only FAA-recognized Community Based Organizations and educational institutions are permitted to apply. The FRIA policy currently under development.
Although the rule went into effect on April 21, drone operators are not required to follow it until September 16, 2023. The leash for drone manufacturers is shorter. They must begin baking in RID capabilities prior to the September 15th, 2022 production compliance deadline.
Many in the drone industry were surprised by the final rule. It was so different from the FAA's original proposal in its Notice of Public Rulemaking. The NPRM was published on New Years Eve 2019. It focused on a network-based RID solution. Standard RID drones would need to have both broadcast and network capabilities. The FAA eliminated limited RID drones in the final rule, and replaced them with the BMID drone. In several other important aspects, the final rule differed from the proposal rule as outlined in the brief.
Despite requests from the FAA to extend it, the NPRM remained open for public comment up to March 2, 2020. The agency received 53,000 comments in those 90 days. Tyler Brennan (27-year-old owner of RDQ), one of the most prominent distributors of racing drones in the world, and his three lawyers claim that the FAA ignored many of the concerns raised.
The Teams are Now Assembled
Tyler Brennan, RaceDayQuads owner at the 2020 MultiGP National Racing Championship in... [+] Daytona FL. Brennan is challenging FAA's remote identification rule. Tyler Brennan, RaceDayQuads
Brennan has drafted a strong legal team to represent RDQ in order to address these and other concerns. Jonathan Rupprecht is a Florida-based attorney and FAA certified flight instructor. He also holds the certification to pilot unmanned aircraft.
RDQs also includes Kathleen Yodice, of Yodice Associations, in Washington, D.C., and Elizabeth Candelario, a Partner with cloud-based Parlatore Law Group. Yodice has represented aviation legal interests for over 35 years. She is an instrument-rated pilot and a former FAA prosecutor. Candelario has more than 13 years experience in private practice representing individuals as well as organizations in various challenges to agency actions.
The 9-member government legal powerhouse team is made up of lawyers from the Department of Transportation and the FAA.
RDQ Fires the First Shots
RDQ is challenging the FAA for a variety of reasons. The FAA's RID rule poses significant challenges to drone-racing or FPV (first-person view) communities. Brennan claims that the FRIA concept doesn't take into account that 99% of FPV pilots fly in parks, woods, and their backyards, not in open fields of CBOs like the Academy of Model Aeronautics.
Ronald Jr Smith and his father, Ronald Jr Smith, prepare to race in an FPV drone race at... Orlando, Florida. Tyler Brennan, RaceDayQuads
The case goes beyond flight locations. It also involves a lot of money. Brennan estimates that the U.S. drone racing community spends about $75 million annually on FPV-related gear. According to Statista, this group is part the larger drone hobbyist and recreational flyer market that surpassed $1.25 Billion in 2020. Taylor claims that retrofitting or disposing of the 10,000 FPV drones in Taylor's inventory would be devastating for his business. It made over $18 million last year and had 150,000 orders fulfilled.
Jonathan Rupprecht believes that the rule will increase the barriers to entry for drone hobbyists. Most FPV drones are small and lightweight, selling for around $150. Rupprecht noted that weight issues aside, the RID broadcast module required will increase the price by up to three times. He continued, China makes most FPV drones right now. Given the current geopolitical environment, will the FAA certify them if China can make RID into FPV drones? According to the FAA, there are 3.4 million recreational drones.
RaceDayQuads employee Corey Cutchens packs one the 500+ daily orders FPV drones, equipment... [+] at their Orlando warehouse this Summer. Tyler Brennan, RaceDayQuads
The RID implementation cost will be passed onto the drone industry. It is likely that this will have a significant impact on the commercial drone market. Yodice stated that no one knows how much it will cost to add RID technology to a drone or build an RID module. It doesn't matter what the cost is, it will be passed onto the consumer through higher sales or lower services prices.
But the issue isn't just about money. Candelario said that government regulations that impose cost on the public must also be thoroughly and fairly considered. The public should also have a say in how regulations are made to accomplish their mission. However, the RDQ team believes that the case is also about first principles. Yodice and Candelario pointed out that government regulations must also be in line with the Constitution.
Brennan stated that he was seeking to defend the Constitution rights of U.S. citizens from unreasonable searches by the government when they fly in their backyards. Other allegations include an FAA's arbitrary and capricious reliance on undisclosed ex parte communications (outside the record), the final rules disconnect with the NPRM (not a logical outcome), failure to consult RTCA (a legal mandate), and failure to address significant public comment. The brief highlights:
4th Amendment: Law enforcement and the FAA can track anyone, anywhere, at any time. This is in violation of the warrant requirements and the related Supreme Court jurisprudence
Ex parte: An FAA-created, non-public industry cohort of 8 companies with financial interests in RID, who, according to the FAAs RID rule, had influenced the rules outcome in contravention of the law and Department of Transportation rules
Summary of the briefs: The FAA ignored mandates from Congress, ignored materials comments, including failures to provide any safety justifications or authority for rulemaking, implemented changes that were not logically derived from the NPRM, circumventing required notice, comment, and trampled Fourth Amendment Rights.
The Government Fires Back
In its brief, the governments denied the allegations of RDQs. It doubled down on various reasons to support different FAA actions if the court finds the allegations true.
The brief argued that the RID digital plate is not equivalent to unreasonable searches under the 4th Amendment. It explained that the drones will be flying in the air, which is already heavily regulated by FAA. There is no privacy in the flight of planes high up.
Although monitoring movements can be considered privacy-infringing, requiring the installation and operation of a tracking device does not make it illegal. Although the rule requires a tracking device, it is up to each security agency to decide how to access and use this information.
PiFly and Roo, FPV Pilots, prepare to compete in the 2021 MultiGP International Open. Is the remote identification rule that will allow drone tracking to be enabled... [+] against the constitution? The courts will make the final decision. Tyler Brennan, RaceDayQuads
Even if the requirements of the rules required a search, the brief continued that special needs related to public safety or national security justify it otherwise under the law.
Concerning ex parte communications, it was admitted that the FAA held a RID Tech Demo, which encouraged RID-related R&D, and also created an industry cohort. These efforts did not impact the final rule, it claimed. Even assuming that the FAA considered materials from the cohort in abandoning the rules internet-transmission requirement, petitioners lack standing to challenge that alleged procedural violation, the brief stated.
The brief stated that the FAA had responded to all comments made in the final rule. However, it was not required to address every point of fact or opinion in those comments. Brennans' comments, requesting that the FAA adopt a network solution, were also included.
The Way Forward
Next steps: RDQ, plaintiff, has a second chance to get the apple. A reply brief is due in approximately 30 days. Next will be oral arguments. The court decision will not be made until 2022, most likely.
It is difficult to predict which side will win when you look into the future. Courts avoid deciding on important constitutional issues as a matter principle. Are these procedural errors worth it? Only time will tell.
All commercial and hobby drone makers are still in the dark, despite the one-year production compliance window. If the court requires a RID rule change, it is possible to produce Standard RID drones and BMID modules.