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Electronic Privacy Information Center v. Federal Aviation Administration

United States Court of Appeals, District of Columbia Circuit

June 19, 2018

Electronic Privacy Information Center, Petitioner
Federal Aviation Administration, et al., Respondents

          Argued January 25, 2018

          On Petition for Review of an Order of the Federal Aviation Administration

          Alan Butler argued the cause for petitioner. With him on the briefs was Marc Rotenberg.

          Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Federal Aviation Administration.

          Before: Garland, Chief Judge, and Sentelle and Randolph, Senior Circuit Judges.



         In June 2016, the Federal Aviation Administration ("FAA") published a final order, the Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42, 064 (June 28, 2016). The FAA promulgated the rule under the FAA Modernization and Reform Act of 2012 (the "Modernization Act"), Pub. Law. 112-95, 126 Stat. 11, in which Congress directed the Secretary of Transportation to consider whether certain small unmanned aircraft systems ("drones") could be safely integrated into the national airspace and to establish requirements ensuring their safe operation, § 333, 126 Stat. at 75-76. 81 Fed. Reg. at 42, 067-68. The Electronic Privacy Information Center ("EPIC") now challenges the rule on the grounds that the FAA did not address privacy issues raised by drone operations. EPIC argues that the Modernization Act requires the FAA to consider and protect privacy in regulating drone use.[1] Because EPIC fails to establish standing, however, we dismiss the petition for review and do not reach the merits.

         I. Background

         The rule at issue creates regulations for certain classes of nonrecreational small drone operations. 81 Fed. Reg. at 42, 074. Small drones can never comply with some of FAA's existing manned aircraft regulations, and others would be inappropriately burdensome. See id. at 42, 068-69.

         Recognizing the need for regulations specific to drone operations, Congress charged the FAA with planning for and promulgating a new regulatory framework for drones. Congress directed the FAA to provide a comprehensive framework "to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." Modernization Act § 332(a)(1). Congress further charged the FAA with determining "which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace systems or the public or pose a threat to national security" and so could be integrated into the national airspace earlier rather than awaiting comprehensive drone regulations. Id. § 333(a), (b). The small drone rule at issue was promulgated to meet this accelerated requirement of Modernization Act § 333. 81 Fed. Reg. at 42, 067-68.

         The rule was first proposed in 2015. 80 Fed. Reg. 9544 (Feb. 23, 2015). The proposed rulemaking acknowledged privacy concerns arising from unmanned aircraft and noted FAA's involvement in an interagency process to address those concerns, but concluded that privacy was beyond the scope of the proposed rule. 80 Fed. Reg. at 9552. Instead, safety concerns drove the FAA's efforts in crafting the final rule, specifically (1) the ability to "see and avoid" other aircraft without a pilot on board and (2) potential loss of control of the drone due to failure of the link between the drone and its operator. 81 Fed. Reg. at 42, 068. To address these concerns, the regulations require the operator to maintain visual line of sight with the drone, to operate during daylight or twilight only, and to limit the speed and altitude of small drone operations, among other requirements. Id. at 42, 066-67. As required under Modernization Act § 333, the FAA determined that operations conducted in compliance with the rule "pose no hazard to the public and the [national airspace system]." 81 Fed. Reg. at 42, 180.

         EPIC, which describes itself as "an organization established to focus public attention on emerging privacy and civil liberties issues, " commented on the proposed rule. EPIC argued that privacy regulations were necessary to ensure drone operation safety and were required under the Modernization Act. In the final rule, the FAA determined that privacy concerns were beyond the scope of the rulemaking and not obviously within its traditional statutory mandate to ensure the safe and efficient use of national airspace. 81 Fed. Reg. at 42, 190. Indeed, the FAA had "never extended its administrative reach to regulate the use of cameras and other sensors extraneous to the airworthiness or safe operation of the aircraft in order to protect individual privacy." Id.

         The FAA also responded to EPIC's contention that the Modernization Act required the agency to promulgate drone privacy regulations. The agency explained, "None of the [drone]-related provisions of [the Modernization Act] directed the FAA to consider privacy issues." Id. at 42, 191. Rather, to read the act as implicitly requiring such regulation "would be a significant expansion beyond the FAA's long-standing statutory authority as a safety agency, " and the agency lacked rulemaking authority to regulate privacy interests between third parties. Id. at 42, 191-92. EPIC timely petitioned this court for review.

         EPIC now challenges the rule on the following grounds: (1) the FAA's refusal to address privacy hazards is unlawful because (a) it is contrary to the Modernization Act, (b) the FAA's construction of the statutory term "hazard" is impermissibly narrow, and (c) the agency acted arbitrarily and capriciously; and (2) the FAA unlawfully engaged in piecemeal regulation when the Modernization Act requires a comprehensive rulemaking. Before we can address those questions, we must first determine if we have jurisdiction. This ...

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