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NAFI Expresses Concern Over Another State Effort to Regulate Flight Training

Last week NAFI learned of efforts by the State of Tennessee Higher Education Commission to impose its regulatory structure over Tennessee flight school operators. The "Division of Postsecondary School Authorization" (DPSA) seeks to regulate flight schools..  This information was reported to NAFI by a member who received notification from the Tennessee Higher Education Commission.

NAFI is concerned that requirements by specific states that limit or increase the burden for flight training providers to operate may have a negative effect on their ability to continue providing flight training services.  Similar efforts by states to regulate and/or license flight training operators have recently been seen in both California and Arizona.

NAFI is studying the matter and is concerned about ramifications of such any state policy both in Tennessee and the potential precedent it sets for other states in the United States.
Specifically, the DPSA stated that it: "first determines whether the entity is a 'postsecondary educational institution' and, if so, whether the institution has a 'physical presence' in Tennessee."  In making these determination, DPSA relies on the definitions of the term "postsecondary education institution" as found in Tenn. Code ANN. 49-702003(11) and Rule 1540-01-02-03, and the definition of a "physical presence" as found in Rule 1540-01-02-03."
The definition of a physical presence is as follows:

      "Physical presence means actual presence within the state of Tennessee for the purpose of conducting activity related to; a
        postsecondary educational institution; an educational service; dissemination of educational credentials; enrollment;
        solicitation; or, advertising.  Physical presence as further outlined for purposes of authorization shall include but not 
        be limited to:
               1.  An instructional site within the state;
               2.  Instruction within or originating from Tennessee designated to impart knowledge  with response 
                   utilizing teachers, trainers, counselors, etc., or computer resources, or computer  linking (e.g. Internet), 
                   or any form of electronic telecommunications;
              3. Dissemination of an educational credential from a location within the state;
              4. An agent, recruiter, institution or business that solicits for enrollment or credits for the award of  an 
                  educational credential;
              5. Advertising, promotional material or public solicitation in any form that targets Tennessee  residents or 
                 uses local advertising markets in the state for institutions seeking, holding or required  to hold a certificate 
                 of authorization."

NAFI notes that flight training is a federally regulatedactivity that is conducted by federally certificated instructors or training providers, and in most cases at federally funded airports.  NAFI recognizes that states may have the additional right to further require, through statute or regulation, oversight and authorization of commercial activities within the state.  NAFI is hopeful that with collaboration  between state officials and the aviation community processes will be established to allow flight training to be safely continued without undue burden. In this case, in the initial review of the situation by NAFI staff, it appears that the applicable regulation is the result of recent regulatory changes that now make  rules applicable to flight training.  It is possible that to remedy the situation additional regulatory or statutory changes may be required.

NAFI sought information and feedback from its members in Tennessee to determine if any other operators were notified in recent weeks.  At this time NAFI is aware of only two operators being so notified.  NAFI is collaborating with AOPA and NATA staffs to address these issues.  For more information, contact NAFI staff at [email protected] or via phone at 866.806.6156.