UAS: Public v. Private Use and Jell-O

At times, the FAA’s attempts to control commercial UAS operations seem like a man trying to compress a cube of Jell-O with his bare hands.  Every time it seems like the situation is under control, the pent up demand tries to squeeze through the cracks. A new opinion by the FAA office of Legal Counsel this week attempts to patch one of the fastest growing cracks.

The FAA’s UAS Certificate of Authorization (COA) system draws a distinction between private and public aircraft, with public aircraft enjoying far fewer restrictions.  One of the major beneficiaries of the public aircraft exception have been public universities, who have been getting COAs to conduct aeronautical research.  The FAA, however, has noticed a disturbing trend in how universities are using these COAs:

The current unavailability of routine civil operation of UAS has caused a considerable rush by government entities to qualify as public operators and be the sole source for near-unregulated UAS operations.

Essentially, the FAA believes that the universities have been tempted to act as little more than “fronts,” taking “aeronautical research” grants from commercial entities as a cover for operations that would otherwise be prohibited.  The legal opinion notes that in order for a UAS to be a true public aircraft, there are substantial restrictions on the UAS’s use that must be followed.

First, the FAA notes that generic research does not become “aeronautical research” simply because a UAS is involved.  The research must have “at its core the development of aircraft and systems.”  By way of example, the opinion notes that a project to design a specific UAS for soy bean monitoring would be aeronautical research, while a project to use an off-the-shelf UAS to monitor moisture in a soybean field as part of agricultural research would not be aeronautical research and would be prohibited.

Second, the FAA notes that a state university can only use its COA for aeronautical research if the findings of the research belong to the university regardless of the source of funding.  If the private entity retains an ownership interest in the data, then the research is not being carried out for a public purpose.

Third, the UAS cannot carry property owned by a third party.  In order to qualify as a public aircraft, the UAS and its contents have to be owned by the public entity.

The opinion concludes with an interesting policy discussion highlighting the differences between the public and private aircraft system, and how efforts to use the public aircraft COA by universities is unfair and undermines the statute’s public policy.

The public aircraft statute exists to free governments from regulation, not to confer a benefit on government entities that is unavailable to civil operators.  There is no new operational authority that can be read into the public aircraft statute simply because a government entity is the operator.  The public aircraft statute and UAS COAs do not exist to create a loophole of exclusive operation, or allow state universities to become exclusive providers of certain aircraft operations by any entity willing to fund them as ‘research.’

We will refrain from pointing out the irony of the government arguing about its need to be free from oppressive government regulations that stifle flexibility and creativity.  However, the argument is well taken, and the public aircraft statute should not be used as a shield to give public entities a competitive advantage over the private sector.

Now, who wants Jell-O?

(Originally posted June 20, 2014)

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