United States: Incubators for Tomorrow's Innovation: FAA Interpretation Memo Eases Burden on Students and Schools to Operate Drones for Educational and Research Purposes

Last Updated: May 5 2016
Article by Mark J. Connot and Jason J. Zummo

Today, FAA Administrator Michael Huerta ("Huerta") announced plans to make it easier for students to fly drones as part of their coursework. Huerta first recognized the uncertainty surrounding when a drone is a model aircraft operated for "hobby or recreation." That uncertainty, Huerta noted, left a number of questions on the use of model aircraft by students and faculty in connection with participation in coursework at educational institutions.

As part of Huerta's announcement, the FAA released an Interpretation Memorandum ("Memo") that specifically addressed two key issues: (1) the use of drones for "hobby or recreational purposes" at educational institutions and community-sponsored events (e.g., demonstrations at schools, boy or girl scout meetings, science clubs, etc.) and (2) student and faculty use of drones in furtherance of receiving and providing instruction at educational institutions. Essentially, the FAA sought to clarify the applicability of Section 336 of the FAA Modernization and Reform Act of 2012 ("FMRA") in the educational context.

Hobbyist Use of Drones to Conduct Demonstrations

As a matter of background, Section 336(a) of the FMRA provides special rules for model aircraft. Those rules require, among other things, that the aircraft be: (1) flown strictly for hobby or recreational use; (2) limited to not more than 55 pounds and; (3) operated in accordance with a community-based standards of safety guidelines and within the programming of a nationwide community-based organization. Importantly, for an operation to qualify as a "model aircraft" operation and be subject to Section 336 above, depends on whether the drone operation is for "hobby or recreational" purposes.

Accordingly, the FAA clarified that a person may operate a drone for "hobby or recreation" in accordance with Section 336 at educational institutions and community-sponsored events provided that the person is (1) not compensated, or (2) any compensation received is neither directly nor incidentally related to that person's operation of the aircraft at such events.

In substance, the FAA interpreted "hobby or recreational" use to include operation of drones to conduct demonstrations at accredited educational institutions or at other community-sponsored events subject to the above requirements being met. This is important because now a model aircraft hobbyist or enthusiast lawfully may fly drones at such institutions or events to promote the use of drones and encourage student interest in aviation as a hobby or for recreational purposes.

Student Operation of Model Aircraft for Educational Purposes

Next, the FAA considered whether a student's course work of learning how to operate and use a drone constitutes a hobby or recreational activity within the meaning of Section 336's definition of model aircraft. The FAA found that "the use of [drones] by students at accredited educational institutions as a component of science, technology and aviation-related educational curricula or other coursework such as television and film production or the arts more closely reflects and embodies the purposes of "hobby or recreational" use of model aircraft and is consistent with the intent of Section 336."

Therefore, the FAA concluded that student use of drones at such institutions as a component of their educational curricula, or other coursework, is "hobby or recreational use" within the meaning of the FMRA. Note that the student still must comply with all other elements required for lawful model aircraft operations pursuant to Section 336, that is, not receiving any form of compensation directly or incidentally to his or her operation of the model aircraft.

Faculty Use of Model Aircraft

Respecting faculty, the FAA found that because a faculty member engaging in the operation of a drone is being compensated for his or her teaching or research activity, they would not be engaging in a "hobby or recreational activity." Accordingly, the faculty member may not rely on Section 336's concept of "hobby or recreational use" to either operate a drone or direct student drone operations in connection with such research.

Nevertheless, the FAA found that a faculty member teaching a course that uses drones as a component of that course may provide limited assistance (e.g., the faculty member steps-in to regain control in the event the student begins to lose control, to terminate the flight, etc.) to students operating drones as part of that course without changing the character of the student's operation as a hobby or recreational activity or requiring FAA authorization for the faculty member to operate.

This "de minimis" limited instructor participation would apply to courses at educational institutions where the operation of the drone is secondary to the design and construction of the aircraft, such that the primary purpose of the course is not operating a drone. The FAA illustrates this limited circumstance with two examples.

The first example involves an instructor teaching an engineering course in which construction and operation of drones are one part of the curriculum. In this scenario, the instructor would be able to conduct limited drone operations as described above. Students would fly drones to test the validity of design or construction methods to show mastery of the principles of the course. But the faculty member's drone operation would be secondary to the purpose of instructing engineering courses.

Conversely, this limited circumstance would not apply to a course related to drone flight instruction. In this scenario, the student's primary purpose for taking the course is to learn to fly a drone. Flight would be expected to be demonstrated on a regular basis. Indeed, the faculty member's drone operation is closely tied to his or her purpose of instructing how to fly a drone. Similar to student operations, these faculty operations must also abide by the provisions of Section 336.

Students and faculty members who wish to operate drones outside of these parameters above must seek FAA authorization. Currently, there are three ways to lawfully conduct drone operations in the U.S.: (1) as public aircraft operations pursuant to the requirements of the public aircraft statute and under a Certificate of Waiver or Authorization (COA) from the FAA; (2) as limited commercial operations by type certificated drone, provided the operator obtains a COA from the FAA; or (3) pursuant to a Section 333 of the FMRA grant of exemption provided the operator obtains a COA from the FAA.

Schools and students will no longer need a Section 333 exemption or any other authorization to fly provided they follow the rules for model aircraft and operate within the parameters described above. Further, faculty will be able to use drones in connection with helping their students with certain types of courses as set forth above. Schools and universities are incubators for tomorrow's great ideas. The FAA's interpretation is going to be a significant shot in the arm for innovation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Mark J. Connot
Jason J. Zummo
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