A new Memorandum issued by the Federal Aviation Administration's Office of Chief Counsel appears to place in jeopardy dozens of existing and planned research projects at state universities that make use of unmanned aircraft systems technology. The June 13, 2014 Memorandum concerning "UAS Operations by Public Universities for Aeronautical Research" (the "Memorandum") is intended to provide "clarification of allowable operations of Unmanned Aircraft Systems (UAS) by state universities as operators of public aircraft." Sent by the Assistant Chief Counsel for International Law, Legislation, and Regulation to James Williams, Manager of the FAA's Unmanned Aircraft Systems Integration Office, the Memorandum concludes that the FAA may only issue Certificates of Waiver or Authorization (COAs) to state universities for the narrow purpose of conducting "aeronautical research" into the development of unmanned aircraft systems, and not for other research purposes such as agriculture or environmental studies. This conclusion could be construed as cutting off one of the only current avenues for FAA-approved uses of UAS in the United States in advance of the agency's rulemaking, which is not anticipated to culminate in a final rule for small UAS before the end of 2015.
The COA Process for Public Operators
Under the FAA's policy-based UAS operational approval approach set out in National Policy N 8900.227 ("Unmanned Aircraft Systems (UAS) Operational Approval"), public operators including state and federal agencies may apply for limited authorization to operate a UAS pursuant to a Certificate of Waiver or Authorization (COA). This approach (issued as policy and not as a substitute for regulation) was intended by the FAA to provide relatively unregulated government agency access to UAS technology while the agency continues its years-long process of developing rules and regulations that will apply to civilian and public unmanned aircraft systems in the future.
The COA process for UAS is open only to public operators (government agencies) and their contractors, involves considerable effort, often takes several months, and, if successful, results in the issuance of FAA operational authorization of a specific UAS within a specific geographical location, and for a limited purpose. Despite these limitations, the approach has been increasingly popular and it is estimated that several hundred COAs have been issued by the FAA over the last few years to governmental agencies, including many to state universities. The Memorandum notes a "considerable rush by government entities to qualify and be the sole source for near-unregulated UAS operations."
State University Research Said to be Limited to Aeronautics Research
The Memorandum takes a very narrow view of what kind of activities qualify as a "governmental function" under 49 U.S.C. § 40125, the statute that is the premise for granting "public aircraft" status to government-owned unmanned aircraft under a COA. (The Memorandum expressly assumes that UAS are considered "aircraft" for purposes of the analysis.)
The Memorandum explains:
The public aircraft statute's description of governmental function includes the term "aeronautical research." We do not interpret this term to encompass any research conducted using an aircraft (manned or unmanned).
. . .
The term "aeronautical research" would have at its core the development of aircraft and systems. For UAS, we interpret the term as research and testing of the aircraft themselves, the control systems, equipment that is part of the aircraft (such as sensors), flight profiles, or development of specific functions and capabilities for them.
(Emphasis added.) The Memorandum concludes that aeronautical research is the only type of research identified as a governmental function under the statute, and then provides an illustrative example of how the line might be drawn:
[A] research program to design a UAS to evaluate the capabilities of an unmanned aircraft for soybean field monitoring could be considered aeronautical research, whereas using an off-the-shelf UAS – as opposed to some other available means – to monitor moisture levels in a soybean field as part of an agricultural research project would not qualify as aeronautical research. Non-aviation research that incidentally uses an aircraft does not qualify as aeronautical research, and would need another governmental function before it would qualify as a public aircraft operation.
Research Findings Must Belong to the University
The Memorandum also states that even if the nature of the planned research qualifies as a government function, the resulting findings must "belong to the university" regardless of the source of funding, and the UAS must "not carry the property of another."
The FAA Chief Counsel's office was apparently not swayed in its analysis by the potential benefits of permitting early use of UAS technology, instead presenting a narrow textual interpretation of the public aircraft statute:
If Congress meant all research, that term could easily have been included without modification and would have included any research conducted by a government entity for any reason (provided it did not have a commercial purpose).
. . .
Consideration of whether a UAS is easier, cheaper, or arguably safer than a larger manned aircraft in a given application does not factor into the analysis of whether the operation constitutes a valid public aircraft operation.
The Memorandum concludes that "COAs should not be granted" when the planned research does not qualify under the various restrictive criteria.
Possible Impact on Research Projects
The Memorandum could be interpreted to place in jeopardy various research projects that have already been approved by the FAA. For example, a state university was recently reported to have obtained a COA from the FAA in connection with the survey of plant species. Another recent COA was granted to a state university planning to use UAS to conduct infrastructure mapping and geographic information science (GIS) work at its campus, which is expected to save the university money. The Memorandum also raises the question of the types of research projects that will be permitted at the six FAA-designated UAS test sites, which thus far have used the FAA's existing UAS COA policy as the approval mechanism for public operators.
Assuming the Memorandum remains the position of the agency and is legally correct, it remains to be seen whether existing COA approvals that fall outside the guidance in the Memorandum will be cancelled, and whether pending applications of that kind will be approved in the future. The Memorandum does appear to pose a potentially serious setback for researchers hoping to partner with state universities in order to use UAS technology for beneficial research and educational purposes. The stated requirement that the research "belong" to the university may also have a chilling effect on outside funding for research projects involving UAS.
The Memorandum also highlights the continuing disparity between state universities and private universities under the FAA's policy-based UAS authorization framework. State educational institutions have for years been eligible to apply for FAA approval under its policy concerning UAS COA approval, while private institutions still lack even a policy-based FAA approval process for conducting research using UAS technology. The Memorandum acknowledges, and seemingly disapproves of, this disparity: "The public aircraft statute exists to free governments from regulation, not to confer a benefit on government entities that is unavailable to civil operators. ... The public aircraft statute and UAS COAs do not exist to create a loophole of exclusive operation, or to allow state universities to become exclusive providers of certain aircraft operations by any entity willing to fund them as 'research.' "
Footnotes
2 Whether an institution legally requires policy-based UAS operational approval in the absence of UAS regulations is not addressed in this Alert, which considers only the impact of the Memorandum on the FAA's National Policy for UAS operational approval.
3 In theory, a COA might be available to civilian operators, but under the policy would require a UAS with an airworthiness certification, and there are currently no FAA-certified UAS platforms nor a regulatory process for certifying them, thus effectively precluding civilian operators from obtaining a COA. The FAA allows government agencies to "self-certify" as to airworthiness and therefore avoid the issue.
4 The FAA does not make COAs freely available. A collection of COAs obtained by FOIA request is available at: https://www.eff.org/foia/faa-drone-authorizations
5 This Alert takes no position on whether such approval is legally required.
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