When is a Public Aircraft Not a Public Aircraft?

The question of whether a UAS can be operated as a public aircraft is a very serious issue for state and local governments. Public aircraft are exempt from many of the rules and regulations that govern commercial (i.e., civil) aircraft operations. However, just because an aircraft is owned by the government does not automatically make it a public aircraft. The aircraft must also be flown in support of a core governmental function.

Last year, the FAA’s counsel’s office seemed to definitively state that a UAS flown to inspect government infrastructure was a core governmental function and could be done by a public aircraft. In its opinion to the  Tennessee Valley Authority, FAA counsel reasoned that:

the FAA finds that public works projects such as the inspection and maintenance of dams, waterways, bridges, and roads may all be characterized as valid governmental functions when the projects belong to and are funded by a governmental entity, and the operations do not also constitute a commercial purpose. Similarly, a government entity may conduct a public aircraft operation using a UAS for the purpose of conducting a mandatory code inspection of a construction project.

As a result, the FAA told the TVA that they could use UAS to inspect their “39 dams and the numerous waterways connected to them.”

It appears, however, that not all infrastructures are created equal, and that there are exceptions to what appeared to be a bright line rule. Just recently, the Turlock Irrigation District in California was told that UAS inspections of the government-owned local power system would not qualify as a public aircraft operation. The FAA agreed that the power company was a government entity, but stated that it was unable to conclude that “a ‘public power utility’ whose function is ‘providing safe, reliable and low-cost electric power’” could meet even an expanded test of governmental function. The FAA’s position is that, at least on the state level, public aircraft operations are limited to only those “activities that are core functions necessary to operate as a state.”

That a state may choose to expand the reach of its own government to provide any number of services or goods for its residents is not at issue. But the actions of state legislatures to create entities such as public vendors of electrical power cannot be read to bind the terms of the public aircraft statute so as to allow any decision of a state legislature to be the basis for [Public Aircraft Operation].

This decision was followed just a few weeks ago by a similar request by the Salinas Airport to permit the use of public aircraft to inspect the municipal airport. The FAA noted that “not everything” a government entity decides to do automatically becomes a valid governmental function. The FAA then went on to conclude that it:

does not consider the operation of an airport to be a governmental function . . . nor would the inspection of it using a UAS change that status. There is nothing basic to the core function of a state (or a political subdivision of a state) that supports the operation of an airport as a governmental function, nor the inspection of it using a UAS or a manned public aircraft.

The FAA went on to advise that, if the airport wanted to perform the inspections, it would have to:

do so as a civil operator and had to comply with 14 CFR Part 107, including the waiver provisions of §§107.200 and 107.205. If the limitations on operation in Part 107 do not meet its needs, the city may apply for an exemption from the FAA as a civil operator.

So, based on these three decisions, it appears that the FAA is standing by a very restrictive view of “core governmental function.” Public safety organizations, such as police and fire departments, clearly qualify. Universities qualify, but only for certain types of work such as aeronautical research. Dams and certain types of road and construction projects might qualify, but government run airports and power companies apparently do not. For now, it seems that the best course of action is, if in doubt, ask the FAA counsel’s office, because only they seem to know for sure.

Originally posted October 31, 2016

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