Great real life example of the fine line between 44809 recreational flying and Part 107

[Dangerly]

I thought I'd relate an example from my own experience of the fine line between recreational and 107 pilots. We talk about hypotheticals a lot so here's a real life.

A friend of mine owns a most beautiful vineyard in Northern California, and I asked him if I could capture some of its beauty by drone video on his property. He gave me permission. I told him the truth: This is just for my own personal video collection. I may or may not post it on social media. I didn't end up publishing it anywhere online, but it is in my personal video archive and I pretty much had forgotten about it.

Fast forward about two years, and he wants to do some construction on his property and he asked me if I could send him a link to that video, which I agreed to do. I believe it may have provided some value to him.

I believe this all fits squarely within the limits of recreational flying. The key point here is that he asked me for a link to the video after I had already flown for recreational purposes. If he had asked me for the same video before I flew then I am outside the bounds of recreational flying and I could get in trouble with the FAA.

As a recreational pilot, your heart must be pure and it must be 100% about the pure fun of recreational flying solely for your own benefit and not for any other purpose, for anyone, or for anything.

A valid 107 would solve all these problems of course, but my point in making this posting it to try to illuminate that fine line with an actual real world example.

And it is of course with some trepidation and humility that I relate this and ask anyone to correct me if they think I got something wrong.

 

[AlanL]

You hit the key point exactly - the intent of the flight when you went up. The disposition of the footage afterwards (and especially 2 years later) is not the FAA's concern at all - only for the duration of the flight.

 

[Dangerly]

So I just had to watch the video that's at the heart of my example - haven't watched it since I made it. There is one cool part at the end: I shot the Air 2 up maybe 300' and parked it for about a minute to watch the sun set behind the mountains and vineyards, and I think that captures the beauty best. The helix shot at the beginning barely cleared the trees going up! Anyway, two years ago that was my definition of flying recreationally purely for the fun of it. There's a short conversation about ravens between drone shots...

 

[BigAl07]

The only thing you didn't nail is the "fine line" part. It's black and white and you hit the nail on the head with this example.

You've done an excellent job and you've demonstrated (very accurately) what is Recreational and not Part 107. Your intent was purely Recreational and you can honestly say you did nothing wrong.

Very nicely done!!

 

[Dangerly]

The only thing you didn't nail is the "fine line" part. It's black and white and you hit the nail on the head with this example.

You've done an excellent job and you've demonstrated (very accurately) what is Recreational and not Part 107. Your intent was purely Recreational and you can honestly say you did nothing wrong.

Very nicely done!!

Thanks Big Al! Now that I understand this issue, yes it's a totally black and white issue. Maybe it's just me or I'm slow or something, but it took me a while to understand this so maybe it's not so black and white for the newbie? I remember a time when I could have gotten in trouble for not understanding this point. That's why I posted this.

 

[MARK (LI)]

WOW! on the incredible beauty you did capture in the flight

 

[bitsbytes]

Nice video. People new to drones for some reason think it's a gray area because they don't understand the rules - it is absolutely not a gray area whatsoever. You are either flying under the recreational exemption, or you are flying for any other reason (Part 107), it depends only on the intent at the time of the flight.

 

[Dangerly]

Nice video. People new to drones for some reason think it's a gray area because they don't understand the rules - it is absolutely not a gray area whatsoever. You are either flying under the recreational exemption, or you are flying for any other reason (Part 107), it depends only on the intent at the time of the flight.

"...for some reason..." What is that reason?

Yes, I agree - and I think others here agree too. Assuming we agree that people new to drones think it's a gray area, I agree yes it's because they don't understand the rules, but why don't they understand this rule consistently?

I'm curious about that, not sure if others are too.

 

[Robert Prior]

I think the grey area comes from being open to selling the images, but not making any active effort to do so, and how would you prove that?

I post a lot of images on Flickr and my web site. I've sold some when people have approached me, but I take them purely for the enjoyment I get. Would being willing to license in image be held equivalent to the intent to licence an image? How many images would I need to license before a court decided that I was shooting 'on spec' with the intent to later license them?

There's also things like inspecting your roof. As I understand it, that is considered non-recreational even when it's your own roof. But if you just happen to fly over your house while taking pictures/recording, and decide later to look at the images to see what shape your roof is in, then that's OK. But what if you're flying over your house and you notice what seems like missing shingles — are you allowed to get a closer look under recreational rules, or is that suddenly 107 territory and you can't do that?

As a lawyer friend of mine remarks, proving intent is difficult and ending up in court is expensive even if you are found not guilty.

Fortunately for me, in Canada that's not something I have to worry about — here the reason for your flight has no bearing on the regulations governing it.

 

[mavic3usa]

I think the grey area comes from being open to selling the images, but not making any active effort to do so, and how would you prove that?

I post a lot of images on Flickr and my web site. I've sold some when people have approached me, but I take them purely for the enjoyment I get. Would being willing to license in image be held equivalent to the intent to licence an image? How many images would I need to license before a court decided that I was shooting 'on spec' with the intent to later license them?

There's also things like inspecting your roof. As I understand it, that is considered non-recreational even when it's your own roof. But if you just happen to fly over your house while taking pictures/recording, and decide later to look at the images to see what shape your roof is in, then that's OK. But what if you're flying over your house and you notice what seems like missing shingles — are you allowed to get a closer look under recreational rules, or is that suddenly 107 territory and you can't do that?

As a lawyer friend of mine remarks, proving intent is difficult and ending up in court is expensive even if you are found not guilty.

Fortunately for me, in Canada that's not something I have to worry about — here the reason for your flight has no bearing on the regulations governing it.

For this reason, I cannot wait until the government takes someone to court over this so we can finally decide and establish a precedent. Unfortunately that's the only way to resolve this in my opinion

 

[Dangerly]

I think I need to go on record now as thinking this is not a great example of the fine line, because my example was black and white. However according to me and I think a few others, people new to drones perceive a gray area here. I know I did. I know most 107's see it as purely black and white.

A more gray-area hypothetical (this did not actually happen), would be what if I posted the video and the next day my friend used it to help coordinate construction on his property?

So from my friend's perspective, here I come asking if I can film the beauty on his property. He thinks but doesn't say, "Hey, I need to get a drone video for some construction, but I won't say that so I'll just say 'sure'".

So I fly, not knowing that, post the video, and then he uses it to plan some construction.

I believe I would still be good with the FAA even in this case, because my intention was still pure.

But let's go down that gray rabbit hole just a bit more... What if I asked for permission just as I did, to film the beauty, and my friend said, "Sure, I'm planning to do some construction, so that would be great." It's getting pretty gray down here to me.

Now if I'm an experienced pilot, as I am, I might say something like, "Hey that's too close to the line of recreational flying because now I know it may be for your benefit, so I'll pass". Is that what the pilot should say?

 

[Meta4]

How many images would I need to license before a court decided that I was shooting 'on spec' with the intent to later license them?

How many would you need to sell before anyone cared enough to have you before a court?

There's also things like inspecting your roof. As I understand it, that is considered non-recreational even when it's your own roof.

This completely ridiculous example comes up every time the topic gets dragged out for another airing here.
No-one cares if you use your drone to look at your roof.
When I was a new flyer, any excuse was a good excuse to fly and have fun doing it, even the mythical checking the roof would have been a reason to get some practice with the sticks. and get some genuine recreational fun.
Do you really want to try to argue this pointless hypothetical?

As a lawyer friend of mine remarks, proving intent is difficult and ending up in court is expensive even if you are found not guilty.

The other thing is how unlikely is it that anyone would ever be in court over selling a photo or looking at their roof.

 

[Robert Prior]

The other thing is how unlikely is it that anyone would ever be in court over selling a photo or looking at their roof.

I have no idea. I'm a Canadian, and Americans seem litigation-mad.

Personally, I think the recreational/commercial distinction is silly. A flight is either safe or it isn't. What's important is the flight profile, the drone, and the pilot — the reason for the flight isn't important. But that's a distinction American legal authorities apparently think is critical. I just added it to my list of "things I don't understand about the American legal system" (there are many other things on that list).

Do you really want to try to argue this pointless hypothetical?

Arguing hypotheticals is what lawyers and courts do. Even Supreme Court decisions are (infamously) sometimes based on hypothetical situations that didn't actually happen.

 

[mavic3usa]

I have no idea. I'm a Canadian, and Americans seem litigation-mad.

Personally, I think the recreational/commercial distinction is silly. A flight is either safe or it isn't. What's important is the flight profile, the drone, and the pilot — the reason for the flight isn't important. But that's a distinction American legal authorities apparently think is critical. I just added it to my list of "things I don't understand about the American legal system" (there are many other things on that list).

I've pointed it out on several occasion but it may be able to be repeated at this point:

All drone flights in America are commercial. Unless you qualify for the only real exception which is recreational. This is all about control. Otherwise it would be other way around which is:

All flight are recreational unless you do something that could be "commercial" in nature which leaves you with very little to no control over most flights.

Which one do you think suits the FAA the most in the long run? This basically means FAA will decide how big or how small the control group will become (i.e. they will decide how long to tolerate drone use as a "hobby.")

 

[BigAl07]

I've pointed it out on several occasion but it may be able to be repeated at this point:

All drone flights in America are commercial. Unless you qualify for the only real exception which is recreational. This is all about control. Otherwise it would be other way around which is:

All flight are recreational unless you do something that could be "commercial" in nature which leaves you with very little to no control over most flights.

Which one do you think suits the FAA the most in the long run? This basically means FAA will decide how big or how small the control group will become (i.e. they will decide how long to tolerate drone use as a "hobby.")

Listen, this system isn't messed up because the FAA wants to complicate our lives and control every aspect of UAS operations down to how you store your drone. It's this way because when the rules were created, it was going to be one big happy family of rules that apply to all of us. Some of the bigger groups didn't like being lumped into one big pot and they used their power (aka $$) to get lobbyist to do what they do and "negotiated" complicating the rules to make it less burdensome on those who merely fly R/C planes/Helis at R/C fields. Well that just happens to include MultiRotor flights (Drone) as well by default. We are in this mess because enough people wanted a "different set of rules" and their $$ was able to talk loud enough to get Congress to make the Limited Exemption to Part 107.

For the record, all American Drone Flights are "Civil Operations" and then somewhere in the wording someone mistakenly added "Commercial" and it stuck.

The FAA isn't out to ruin the Industry or to run "hobbyist" out of town. That's total malarky.

 

[Meta4]

All drone flights in America are commercial. Unless you qualify for the only real exception which is recreational. This is all about control.

No they aren't. .. and the FAA doesn't talk about commercial at all.
They talk about recreational and if a flight isn't recreational, it's non-recreational.

 

[Robert Prior]

complicating the rules to make it less burdensome on those who merely fly R/C planes/Helis at R/C fields

Wouldn't it have been easier to give RC flights (which I assume are visually controlled) a carveout if flying from an RC field?

I'm not a lawyer, and I've never studied the American regulations (not relevant to me) so I could easily be wrong about this. I know enough about law from hanging out with lawyers to know that exact wording and precedent from previous court decisions matter more than common sense when interpreting laws and regulations.

Up here, MAAC pilots are now governed by the same rules as drone pilots. There used to be a carveout (basically if you were a MAAC pilot flying from a MAAC field under MAAC rules you were good to fly) but that was cancelled this year when MAAC broke the signed exemption they had with Transport Canada so the exemption got revoked. So now RC pilots need a Basic sRPAS license ($10) and must register their aircraft (another $5) if 250 g or heavier.

When the new regulations came into effect, the definition of “model aircraft” and any reference to model aircraft in the CARs was repealed, and the term Remotely Piloted Aircraft (RPA) was introduced to refer to “a navigable aircraft, other than a balloon, rocket, or kite that is operated by a pilot who is not on board” (CARs?101.01), which includes both drones and model aircraft. This change reflected a focus on regulating that is based on the risks posed by the weight of the aircraft and operating environment, not its end-use.

The decision to issue an exemption to the MAAC was based on an assessment of their safety policies and procedures, which were assessed as providing an acceptable level of safety to Part IX of the CARs, which sets out registration, pilot licensing, and operational requirements for RPAS in Canada. The exemption included several conditions designed to further mitigate potential safety risks, including that the exemption would no longer be valid should any of the conditions be breached.

On February 3, 2023, the MAAC was notified that the exemption was rendered invalid due to a breach of Condition #3 of the exemption, which read that “Prior to sanctioning a field in Class C, D, E, F, or any other type of restricted airspace, the MAAC shall obtain an authorization through a written agreement from the appropriate controlling agency or user agency for the area, [and] shall include operational boundaries, maximum altitudes, and communication protocols to facilitate the safe operation of RPAS at the field”. Since the MAAC did not receive written authorization from the controlling agency (NAV CANADA) prior to sanctioning some fields in controlled airspace, the exemption is no longer valid. As such, members of the MAAC are now required to follow the rules set out in Part IX of the CARs.

Petition 441-01804 - Petitions

www.ourcommons.ca

There seems to be some recrimination going on within MAAC concerning this, especially from people far away from the region that violated the exemption. I think internal politics is in play too, but not being a member I'm not certain about that.

 

[mavic3usa]

All drone flights in America are commercial fall under part 107. Unless you qualify for the only real exception which is recreational.

No they aren't. .. and the FAA doesn't talk about commercial at all.
They talk about recreational and if a flight isn't recreational, it's non-recreational.

Since every single commercial flight also falls under part 107 then it is a fair claim to make. There is no way a commercial flight can fly under the recreational exception.

The way it is set up, it is most accurate to say every single flight is "non-recreational" and if you trigger the exception then your flight can be considered "recreational." Since it is impossible for recreational pilots to legally fly non-recreational part 107 flights (but not vice-versa, part 107 pilots can fly recreational) then it isn't accurate to characterize a typical flight as either recreational or non-recreational because that would diminish the role of the exception. If that makes sense.

The flight you make is based on your activity, not on the license you hold. This is my fundamental disagreement with the process. Every drone flight that takes off needs a part 107 government license unless [this].

 

[AlaninAZ]

I think most of the comments I see on this forum indicate that people try to do the right thing and fly responsibly. Most of the problems are created by the irresponsible people that have blatant disregard for the regulations. Are you familiar with this “Philly Drone Life” guy Mikey. I don’t think he is good for the industry. Basically he accrued $182,000 in FAA fines and to date, I don’t think he has paid any of them because the FAA is not enforcing it.