Last night, Dawn Zoldi interviewed Plaintiff Tyler Brennan and Atty Jonathan Rupprecht in their first interview since filing “RaceDayQuads.com v. Federal Aviation Administration,” the first Remote ID lawsuit challenging the newly published rule.
Dotting I’s and Crossing T’s – The FAA Remote ID Lawsuit
By: Dawn M.K. Zoldi, Guest Contributor
Last night, I did a special podcast, conducting with the first interview with Tyler Brennan, Owner & CEO, RaceDayQuads and Jonathan Rupprecht, Esq., the attorney of record, for the hot-off-the-press just filed lawsuit “RaceDayQuads.com v. Federal Aviation Administration.” The two litigants discussed the background of the lawsuit and what they hope to achieve by filing it. Below is a summary in Q&A format of that discussion. You can watch the full podcast here: https://youtu.be/w-0llTvxxwU
Dawn: Tell us a little about yourselves.
Tyler: I’m a 27 year-old owner of RaceDayQuads. I founded it in 2016 out of my apartment, and today we have 30 employees working out of Orlando, Florida, and are one of the world’s leading FPV distributors and e-commerce companies in the world.
Jonathan: I’m a commercial pilot, drone instructor and a drone attorney.
Dawn: FPV is at the heart of this lawsuit. Can you explain FPV?
Tyler: It’s when you put a camera on your drone and you see what the drone sees in real time. There are a number of ways to do it. Most hobbyists use goggles, so it’s a very immersive experience. Commercially, some people use applications where you view large monitors and its less of an immersion. You can look at the FPV camera and at the drone.
Dawn: This lawsuit has been several years in the making. Tyler, can you provide us some background and context?
Tyler: I discovered FPV drone racing in 2015 on YouTube, and from there, like many who enjoy the hobby, quickly became addicted and built an immense passion for FPV. Fast forward to late 2019 when the Federal Aviation Administration’s (FAA) Notice of Public Rulemaking (NPRM) for Remote Identification (RID) started circulating. It was such an aggressive proposition that it became clear to those within our hobby that we were largely overlooked in the NPRM and that how it was currently written would almost certainly kill our hobby. Quickly our FPV hobby as a whole sprung into action launching various initiatives. As a business owner in the space I was afforded the unique opportunity to be able to lead the legal effort against the NPRM.
Dawn: Jonathan, when did you enter the picture?
Jonathan: Tyler reached out to me and that’s how things started.
Dawn: Tyler, the RID NPRM was published in December 2019. I’ve written about this extensively. The idea was to enhance national security in the national airspace system (NAS) by providing a “remote license plate” for drones that law enforcement officials (LEOs) and security agencies could triangulate with FAA drone registration data. It involved Standard ID drones, a network and broadcast option and Limited ID drones, a network-only option, both of which would beam Messages Elements (like operator location, aircraft location etc.) through third-party UAS Service Suppliers (USS). RID non-compliant drones would have to fly in Federally Recogized Identification Areas (FRIAs). What were your concerns with the NRPM, Tyler?
Tyler: My concern was that FPV would die. It was as simple as that. We had to do something to try and save it. There were multiple issues in the NPRM that would not allow us to continue as we do today. The main sticking points were that the RID drone had to be from a manufacturer. Most of us buy the parts and build our drones ourselves. That would not have been allowed. You also needed an enclosed flight controller with this module. It wouldn’t fit in our drones. FPV drones are very lightweight, which makes adding anything a big issue, and they are 95% home built, which would not have been allowed under the NPRM. Additionally, much of our flying is done in remote areas that does not have a stable internet connection, and innovation moves at such a rapid pace that having to have everything approved by the FAA and made by only approved manufacturers would severely limit what is an otherwise extremely fast moving industry. Also connecting to a network was not going to be good. We couldn’t fly in the mountains or anywhere there was no connectivity. Because of this, we all had the feeling that we would not be able to fly as we do today.
Dawn: Tyler, why would a FRIA hamstring the FPV community?
Tyler: Most FRIAs are going to be American Model Aircraft (AMA fields) essentially. FPV and AMA fields do not go hand-in-hand. There’s been a lot of examples of model aviation guys not wanting the FPV guys there. Additionally, most of the fun in FPV, the thrill and immersion of it, is not possible in an open field. People enjoy flying in local parks, through the woods, in their own backyards and in race courses they set up. In my opinion, about 99% of AMA fields would be of little to no use to the FPV pilot.
Dawn: Jonathan, what additional concerns did you have about the NPRM from your legal perspective?
Jonathan: Only certain entities can apply for FRIA designation, such as recognized community based organizations (CBOs). Tyler and I could not have our backyards designated.
Dawn: Tyler, you started a GoFundMe page early. Why?
Tyler: We originally had no intention of starting a GoFundMe until much later on, but there was such an immense outpouring of support and so many requests for a GoFundMe link that I decided to make one – mainly because all of the requests basically shut down our support system with so many emails. Since then the response has been amazing, with people not just from FPV donating but across every aspect of model aviation, globally. Originally I was very narrowly focused on helping FPV, but when that kind of support started coming in it became clear that so many people are negatively affected by RID and our case would be to the benefit of many, many people. We are upwards of $41,000 now.
Dawn: Let’s use this time to also educate folks on processes. Jonathan, can you briefly explain the Administrative Procedures Act (APA), as I believe it is key to your claims.
Jonathan: The APA is the law that tells the federal agencies how to create regulations. They are not free to do whatever they want. They are required to put out a notice of proposed rulemaking in the Federal Register, we have a period to comment on it, the FAA reviews those comments, and they are supposed to respond to significant comments based during the comment period. The Department of Transportation (DOT) has regulations, including 49 CFR 5.19, which tell the FAA what to do and not do during this period of time. The whole idea is so everything is transparent and “well ventilated,” a term in the case law.
Dawn: Why are comments to an NPRM so important procedurally?
Jonathan: Comments are important in that they preserve the objection and that can be used later on during a legal challenge. The rulemaking is like a trial court and the comments are like where that attorney jumps up and yells objection and things are preserved in case things are appealed.
Dawn: Did either of you, did you provide comments? What were they?
Tyler: There were members of multiple agencies at my meeting with OIRA.
Jonathan: Under the APA, the notice and comment requirement is to allow for transparency. We started noticing that things were coming out that were not on the record, contrary to the law. We wanted the DOT, FAA and OIRA to be on notice. We were hoping they would disclose it publicly, but that did not happen.
Dawn: The comment period closed on 2 March 2020. What FAA procedural errors were occurring after that, during the pendency of the RID Rule?
Jonathan: There was a USS cohort, which was announced to work on network ID. Eight companies were selected, such as Airmap, Airbus and others. There were agreements with all of them, called Memorandums of Understanding (MOUs). It was not part of the rulemaking. They also had Phase II of the Unmanned Pilot Program (UPP) that were working on network ID. They were working out the kinks in the network ID system in parallel without disclosing that on the record. All of this was being done while the rule was being made but none of it was being put on the record. There are two records right here, the public record and there’s the what-happens-behind-closed-doors record. No one had a chance to comment on the second one. No one got to comment to say “Here’s a legal issue or here’s a legal or technological solution.” And they also kept communicating privately with private industry about network ID, ex parte. It’s about fairness.
Dawn: How did you know this was all occurring?
Jonathan: The FAA clued us in in multiple ways. The FAA put out some information saying they selected the Cohort. They did a clean up email in response to everyone asking questions about whether this was connected with the ongoing RID rulemaking. The FAA announced they did a non-public demo at the FBI academy where private industry attended like NFL security, DRONERESPONDERs, one of the RID companies etc. The notice was after-the-fact and in the official docket. Tyler sent over an email to them to ask questions about it, but the FAA would not comment on it. So only certain people got invited to the demo. We started filing Freedom of Information Act (FOIA) requests. We received a lot of documents and pieced things together.
Dawn: Can you explain the FOIA process, what it is and how it works?
Jonathan: Basically you file a request to a particular entity asking for a particular record. The agency then goes and searches, and then responds with estimated fees for processing, responds with saying the record or certain portions are exempt from public disclosure, or they just give you the record without redaction.
Dawn: Did you get anything back in those FOIA responses that surprised you?
Jonathan: Yes, the MOUs that the FAA entered into with the 8 private companies during the rulemaking period which talked about working on network ID, which was the very thing being proposed by the rulemaking. We received one document where the FAA had all the various parties sign saying they would not talk about this. The other shocking document was the Concept of Use (ConUse) document discussing the FAA’s plans to allow other federal entities to access to query and watch lifestreams of network data in real time. DHS or other connected agencies could just watch real time all drones flying. When you look at this with the Unmanned Traffic Management (UTM) Concept of Operations (CONOPs), it appears DHS could go back in time and review all your past flights. None of this was explained in the NPRM.
Dawn: Why would DHS seeing flights in real time be a problem. Is this a 4th Amendment issue?
Jonathan: The caveat is that the FAA would control what access the other agencies, like the Department of Justice (DOJ) and the Department of Homeland Security (DHS), would receive. We learned that the DoJ or DHS could create a Federal USS where local LEOs could obtain information. None of this was in the NPRM. Also the FAA never responded to 4th Amendment concerns in the final RID rule. There are a number of Supreme Court cases on the 4th Amendment like Jones (GPS tracking), Carpenter and Riley (cell phone tracking). The word “tracking” is not in the Final RID Rule.
Dawn: Where can the audience access the documents you received from the FAA under the FOIA?
Tyler: Everything that we are publicly releasing is available on my GoFundMe page and my website.
Jonathan: Those documents are certified by the FAA.
Dawn: Fast forward to the final RID Rule. It was released on 28 Dec 2020, but officially published on 15 Jan 21 in the Federal Register. The network solution was scrubbed. What was your reaction?
Tyler: There was no logical A to B step from the NPRM to the Final Rule. We learned network RID was not ready yet. That’s why we got this rule that surprised everyone. It did not resemble what was originally proposed. We would have picked a broadcast solution, but nonetheless it does not make what happened in the process OK.
Jonathan: My initial reaction was, “This isn’t so bad, what’s the catch?” The catch, as we later discerned, is that network ID is still coming and it’s still being developed, it just isn’t ready yet. It will likely come back on the table. There’s a lot we also don’t know how the CBOs will be selected, how difficult it will be to obtain FRIA designations, how hard it will be for manufacturers to obtain approvals to lawfully fly etc. We also don’t know the real cost to the drone community in terms of economic impact.
Tyler: Again, FPV and hobbyists were not listened to. The issue still remains for the RID broadcast to be either hard-wired or attached to the drone. And we’d still have to fly in FRIAs.
Dawn: I noticed you filed this in the US Court of Appeals for the DC Circuit. Why there? Not district court?
Jonathan: The federal statute requires us to file in a court of appeals. The whole notice, comment, publish final rule basically acts like a mini trial. Those comments are the objections.
Dawn: What is the next step in the process? What is the timeline for that?
Jonathan: We have some more paperwork to file at the end of April. We’ll next get our due dates for our briefs. We then have an oral argument. The court will then rule. That could take some time from now until the opinion is given by the court. The arguments can be listened to later; they will be available.
Dawn: What do you hope to achieve through this lawsuit?
Tyler: I want little Mikey next door to be able to fly his AirHog in his backyard and not have to plug it into some module and not have to pay for that. I’m hoping to let our hobbyists and FPV community operate in a safe manner as we have for many years, without additional regulatory oversight which is unneeded and provides no additional benefit to the American people. unregulated.
Dawn: How can we stay updated on this case?
Tyler: The GoFundMe will be regularly updated as will the RDQ website. Jonathan will post on his website as well.
Dawn M.K. Zoldi (Colonel, USAF, Retired) is a licensed attorney with 28 years of combined active duty military and federal civil service to the Department of the Air Force. She is an internationally recognized expert on unmanned aircraft system law and policy, the Law-Tech Connect™ columnist for Inside Unmanned Systems magazine, a recipient of the Woman to Watch in UAS (Leadership) Award 2019, and the CEO of P3 Tech Consulting LLC. For more information, visit her website at: https://www.p3techconsulting.com.
Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has penned over 3,000 articles focused on the commercial drone space and is an international speaker and recognized figure in the industry. Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.
For drone industry consulting or writing, Email Miriam.
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