107 Loophole

[brett8883]

It's a facepalm

"A facepalm is the physical gesture of placing one's hand across one's face or lowering one's face into one's hand or hands, covering or closing one's eyes. The gesture is often exaggerated by giving the motion more force and making a slapping noise when the hand comes in contact with the face. The gesture is found in many cultures as a display of frustration, disappointment, exasperation, embarrassment, horror, shock, surprise, exhaustion, sarcasm, or incredulous disbelief."

No need to hide behind cheeky remarks, I’m not sensitive. If you think I’m wrong or missing something just come out and say it so we can discuss. I have been wrong before and I’ll be wrong again.

My comment was pretty straight forward that in official FAA regulations the language “in furtherance of business” is not used in favor of “for business or commercial purposes.”

My point being I don’t know why we don’t just use the original language of the regulation, it seems to already be in plain English.

Secondly, the the word “purposes” is critical because it underlines what is actually important, the purpose of the flight. If the purpose of a flight is recreational then it does not require a remote pilot certificate even if it does unintentionally promote a business.

Clearly at least one person within the FAA has already misunderstood “in furtherance of business” to mean that even incidental furtherance of a business requires an airman certificate.

I wonder where these terms like “in furtherance of business” come from since it isn’t from the official regulations. This term among others have become pervasive. Do they come from internal FAA training? Why are there so many FAA employees that are teaching something other than what the regulations say?

If you think this is unimportant and I am making to big of a deal about this I get that, but it is extremely concerning to me the FAA is officially saying one thing but the actual employees think something else. This isn’t a one off isolated situation.

 

[Heavydpj]

My comment was pretty straight forward that in official FAA regulations the language “in furtherance of business” is not used in favor of “for business or commercial purposes.”

If you (or anyone) wants to get into a discussion about a particular law or rule (or the "language" of "official FAA regulations"), I think it's prudent to start from the actual wording of the law or rule in question.

As such, the first thing that you (and everyone else in the "loophole" crowd) needs to know is the actual source IN LAW (not YT videos, discussion boards, FAA rule summaries, or FAA supplemental information). So the first question I have to ask is, "Have you read the actual section of federal law that is the foundation for the the rule?" (hint: it's 49 U.S. Code § 44809). Here's a link:

49 U.S. Code § 44809 - Exception for limited recreational operations of unmanned aircraft

Then, because these rules flow from (and are in concert with) an actual federal law, it's important to read the actual rules. So now go to 14 CFR Part 107.1 and see who the FAA rules apply to (NOTE: rules aren't actually laws, but have the force of law). Don't forget to examine the clause referring to part 101 (specifically 14 CFR § 101.41).

When you do that, take a pen and paper. Write down how many times the words "commercial" or "business" appear throughout all of those sections of law and rules. It would also be helpful to note what the actual words of limitation are.

After that, reflect on this new information and how it may affect your understanding, and get back to me.

 

[brett8883]

If you (or anyone) wants to get into a discussion about a particular law or rule (or the "language" of "official FAA regulations"), I think it's prudent to start from the actual wording of the law or rule in question.

As such, the first thing that you (and everyone else in the "loophole" crowd) needs to know is the actual source IN LAW (not YT videos, discussion boards, FAA rule summaries, or FAA supplemental information). So the first question I have to ask is, "Have you read the actual section of federal law that is the foundation for the the rule?" (hint: it's 49 U.S. Code § 44809).

Then, because these rules flow from (and are in concert with) an actual federal law, it's important to read the actual rules. So now go to 14 CFR Part 107.1 and see who the FAA rules apply to (NOTE: rules aren't actually laws, but have the force of law). Don't forget to examine the clause referring to part 101 (specifically 14 CFR § 101.41).

When you do that, take a pen and paper. Write down how many times the words "commercial" or "business" appear throughout all of those sections of law and rules. It would also be helpful to note what the actual words of limitation are.

After that, reflect on this new information and how it may affect your understanding, and get back to me.

Yes!! See this was good good I’m glad you responded. I am aware of the language in the law says “The aircraft is flown strictly for recreational purposes.”

You might not be aware that 49 U.S. Code § 44809 specifically repeals 14 CFR § 101.41
“(2) REPEAL.—Section 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) and the item relating to that section in the table of contents under section 1(b) of that Act are repealed.” (Edit I was wrong wrong section or it has been changed?)

In the Federal Register 84 FR 22552 the FAA says

“II. Statutory Conditions and Additional Guidance
The eight statutory conditions are as follows:

1. The aircraft is flown strictly for recreational purposes.

Your unmanned aircraft must be flown for only a recreational purpose throughout the duration of the operation. You may not combine recreational and commercial purposes in a single operation. If you are using the unmanned aircraft for a commercial or business purpose, the operation must be conducted under 14 CFR part 107 or other applicable FAA regulations.”
(Exception for Limited Recreational Operations of Unmanned Aircraft)

So the way I interpret this is the FAA is stating the law and giving their “official guidance” below it. The official guidance obviously doesn’t carry the weight of law but their “official” guidance does count for something since they are the regulator and the the enforcement agency so their interpretation ultimately DOES matter.

 

[brett8883]

The FAA also uses the “commercial purposes” language in the circular advisory dated 5/31/19.

“7.1.1 The Aircraft is Flown Strictly for Recreational Purposes. Any use of unmanned aircraft for commercial purposes must be conducted under part 107 or other applicable FAA regulations (e.g., 14 CFR part 91, 135, or 137)”
(https://www.faa.gov/documentLibrary/media/Advisory_Circular/Editorial_Update_AC_91-57B.pdf)

This is the format that the FAA distributes it’s “official guidance” and rule changes to pilots. This is the main document the FAA would look to to say “hey look we told you this.”

 

[Heavydpj]

You have an interesting (but understandable) way of interpreting the law, my friend. I can tell you from personal experience that your understanding is not reality.

Sure, someone could CLAIM that, but when faced with an AC or Notice versus a law or rule, the courts (and administrative agencies) will defer to the law or rule. Anyway - on with the meat ...

You might not be aware that 49 U.S. Code § 44809 specifically repeals 14 CFR § 101.41 ...

Yes, the 2012 language was repealed. It was replaced with the current language. The current language, as far as the, "flown strictly for recreational purposes" aspect, is exactly the same as the old language. As such, 14 CFR § 101.1 and § 101.41 are still current and valid.

Also, it seems like you are cherry picking. Both the AC and the Notice clearly cite the law, (i.e. recreational purpose limitation). The AC underlines it and the Notice has is in a separate heading. What flows after is informational and while it may inform the court about your state of mind, it won't excuse you.

You can try, but it will lead down an unsuccessful rabbit hole that is easily collapsed by evidence that you sold the product issuing from the flight or used it for some other commercial or business purpose, like advertising on your website. You can certainly claim that the original purpose for flying your M2P over Lake Tahoe was for recreation (and it may have been at the time). However, but once you sell the hi-res image of the Plesiosaur you inadvertently captured (or placed the image on your website), it's no longer "strictly" for a recreational purpose. The court will reason that the purpose shifted from a recreational one to a commercial one even if only in part.

Last, relying on a Notice or Circular won't cut it, even assuming that they failed to state the law (the Circular even cites it as a reference). The authority is the law.

All that being said, if you live in Virginia and you get bit by this section of the law, give me a call and I'll defend you to the utmost of my ability (maybe even using the same arguments that you're making). Most likely, it won't be successful, but trial results are never guaranteed. Also, I can use the billable hours and I'm always willing to contribute to the growing body of case law and previous decisions (which are not on your side).

All that being said, it that's the ONLY thing, you'll probably just get off with a warning the first time, sooo ... ??‍.

 

[brett8883]

You have an interesting (but understandable) way of interpreting the law, my friend. I can tell you from personal experience that your understanding is not reality.

Sure, someone could CLAIM that, but when faced with an AC or Notice versus a law or rule, the courts (and administrative agencies) will defer to the law or rule. Anyway - on with the meat ...


Yes, the 2012 language was repealed. It was replaced with the current language. The current language, as far as the, "flown strictly for recreational purposes" aspect, is exactly the same as the old language. As such, 14 CFR § 101.1 and § 101.41 are still current and valid.

Also, it seems like you are cherry picking. Both the AC and the Notice clearly cite the law, (i.e. recreational purpose limitation). The AC underlines it and the Notice has is in a separate heading. What flows after is informational and while it may inform the court about your state of mind, it won't excuse you.

You can try, but it will lead down an unsuccessful rabbit hole that is easily collapsed by evidence that you sold the product issuing from the flight or used it for some other commercial or business purpose, like advertising on your website. You can certainly claim that the original purpose for flying your M2P over Lake Tahoe was for recreation (and it may have been at the time). However, but once you sell the hi-res image of the Plesiosaur you inadvertently captured (or placed the image on your website), it's no longer "strictly" for a recreational purpose. The court will reason that the purpose shifted from a recreational one to a commercial one even if only in part.

Last, relying on a Notice or Circular won't cut it, even assuming that they failed to state the law (the Circular even cites it as a reference). The authority is the law.

All that being said, if you live in Virginia and you get bit by this section of the law, give me a call and I'll defend you to the utmost of my ability (maybe even using the same arguments that you're making). Most likely, it won't be successful, but I can always use the billable hours and I'm always willing to contribute to the growing body of case law.

This is an interesting conversation, thanks. I have a remote pilot certificate so sorry no billable hours from me.

I think we might be in more agreement then you think. My original point in the post you replied to was just that if you are flying for recreation and you happen to film somebody wearing a Coke shirt that wouldn’t make an otherwise recreational flight into a commercial flight because that doesn’t change the purpose of the flight. I said that if the purpose of the flight was promote Coca-Cola then it certainly would require a remote pilot certificate. My point being that you couldn’t unintentionally fly a commercial flight even if somehow that flight benefited Coca-Cola with free promotion.

Now you seem to be taking it a step further and saying that if Coca-Cola later saw your footage and then asked to buy it so they could use it in an advertisement you would need to have a Remote Pilot certificate in order to sell that footage? Or because the operation was done under recreational rules that footage could never be sold?

In this case I need to look no further than the plain language of the law, “for recreational purposes.” Wouldn’t that that imply that your intent or purpose for the flight is what matters? I understand it’s what you can prove that REALLy matters but if you could prove that Coca-Cola approached YOU after the flight wouldn’t the sale of that footage be in line with the law? Or are you making the argument that the “purpose” of a flight can change post hoc based on what a person does with footage after a flight is over?

All of these laws seem to explicitly state they apply to the operation of the drone and not to the payment for photos and videos.
“Sec. 44809. <<NOTE: 49 USC 44809.>>
Exception for limited recreational operations of unmanned aircraft

“`(a) In General.--Except as provided in subsection (e), and not withstanding chapter 447 of title 49, United States Code, a person may operate a small unmanned aircraft without specific certification or operating authority from the Federal Aviation Administration if the
operation adheres to all of the following limitations:
``(1) The aircraft is flown strictly for recreational purposes.”
(https://www.congress.gov/bill/115th-congress/house-bill/302/text?q={"search":["PL+115-254"]}&r=1)

Looking at 14 CFR Part 107.1, that regulation, “applies to the registration, airman certification, and operation of civil small unmanned aircraft systems within the United States.”
(

14 CFR § 107.1 - Applicability.

www.law.cornell.edu

)

It would seem to me a a long stretch to say that something done outside of the explicit stated applicability of these regulations could be the determining factor for compliance, such as wether or not one sells photos, however, intention or purpose does occur during and as part of the operation so therefore would be subject to these laws/rules.

but I am not a lawyer so I am very interested in your thoughts and your opinion on this.

I greatly appreciate your engagement in this conversation.

 

[brett8883]

You can certainly claim that the original purpose for flying your M2P over Lake Tahoe was for recreation (and it may have been at the time). However, but once you sell the hi-res image of the Plesiosaur you inadvertently captured (or placed the image on your website), it's no longer "strictly" for a recreational purpose. The court will reason that the purpose shifted from a recreational one to a commercial one even if only in part.

Wouldn’t this be an example of post hoc ergo propter hoc?

Just because the photos were sold after the flight means that the flight was non-recreational?

 

[Heavydpj]

My original point in the post you replied to was just that if you are flying for recreation and you happen to film somebody wearing a Coke shirt that wouldn’t make an otherwise recreational flight into a commercial flight because that doesn’t change the purpose of the flight. I said that if the purpose of the flight was promote Coca-Cola then it certainly would require a remote pilot certificate. My point being that you couldn’t unintentionally fly a commercial flight even if somehow that flight benefited Coca-Cola with free promotion.

In this, we are in absolute agreement.

Now you seem to be taking it a step further and saying that if Coca-Cola later saw your footage and then asked to buy it so they could use it in an advertisement you would need to have a Remote Pilot certificate in order to sell that footage? Or because the operation was done under recreational rules that footage could never be sold?

If you sold the footage to Coke (perhaps it was a once in a lifetime shot of the Pepsico CEO wearing a Coke shirt), then things change. Once the commercial transaction takes place, then you are in Part 107 land. "BUT I DIDN'T INTEND TO TAKE THE PIC!" you cry. Someone prosecuting this would take the evidence evidence of compensation, and then try to delve into why you took the photo in the first place (assuming that you took the stand).

Unfortunately, the purpose of the flight changed. Perhaps not the original purpose, but at the end of the day, the flight resulted in a commercial (or, more directly, a non-recreational) purpose. This can be seen in many facets of the legal system.

In this case I need to look no further than the plain language of the law, “for recreational purposes.” Wouldn’t that that imply that your intent or purpose for the flight is what matters? I understand it’s what you can prove that REALLy matters but if you could prove that Coca-Cola approached YOU after the flight wouldn’t the sale of that footage be in line with the law? Or are you making the argument that the “purpose” of a flight can change post hoc based on what a person does with footage after a flight is over?

Were this the case, then anyone would be able to get out of the part 107 requirement by simply stating that they INTENDED to fly recreationally (which we already know is not the case). You do make a good point, in that if Coca Cola approached YOU unilaterally, it may prove to be persuasive. Perhaps they saw it on your IG, and offered you a million dollars for it out of the blue. That wold be a matter for the jury (if it went that far).

All of these laws seem to explicitly state they apply to the operation of the drone and not to the payment for photos and videos.

Evidence showing compensation or gain for a product of a UAS flight is enough to make a prima facie case of a non-recreational purpose, and would be pretty hard to rebut.

However, nothing is ever guaranteed at trial.

 

[brett8883]

In this, we are in absolute agreement.


If you sold the footage to Coke (perhaps it was a once in a lifetime shot of the Pepsico CEO wearing a Coke shirt), then things change. Once the commercial transaction takes place, then you are in Part 107 land. "BUT I DIDN'T INTEND TO TAKE THE PIC!" you cry. Someone prosecuting this would take the evidence evidence of compensation, and then try to delve into why you took the photo in the first place (assuming that you took the stand).

Unfortunately, the purpose of the flight changed. Perhaps not the original purpose, but at the end of the day, the flight resulted in a commercial (or, more directly, a non-recreational) purpose. This can be seen in many facets of the legal system.

Were this the case, then anyone would be able to get out of the part 107 requirement by simply stating that they INTENDED to fly recreationally (which we already know is not the case). You do make a good point, in that if Coca Cola approached YOU unilaterally, it may prove to be persuasive. Perhaps they saw it on your IG, and offered you a million dollars for it out of the blue. That wold be a matter for the jury (if it went that far).


Evidence showing compensation or gain for a product of a UAS flight is enough to make a prima facie case of a non-recreational purpose, and would be pretty hard to rebut.

However, nothing is ever guaranteed at trial.

That was a good discussion, thanks for your engagement

 

[Amckim2084]

I flew my Mavic Air once at a river flood to get videos and pictures of all the flooded farmlands and as I was flying, a news van drove up to do their flood coverage. After I landed, a lady came up to me and said, “Hey, can we use your footage on the news? We can pay you.”

As much as I would have loved to have been paid, I said “Sorry, I’m not a commercial pilot so I can’t accept payment but I’ll still let you use a few clips.” Even though it was a recreational flight that could have resulted in getting paid for it afterwards, I still didn’t want to take the risk of getting into any kind of trouble for it. Probably could have gotten away with it but still, I followed the rules.

I follow the rules that have a higher risk of legal issues and use common sense to bend a few of the less risky ones.

 

[RocketmanTurbo]

@JAW you're wrong bud. The FAA doesn't care what the IRS defines. It's the INTENT at the time of the flight and nothing to do with the IRS. Your INTENT could be to not sell but DONATE/VOLUNTEER and it is still Part 107 because you can't Hobby/Recreate for someone else.

So my question is this. If I have flown as a hobbyist for a year and never took a penny from any of my photos or videos but do indeed have some great images. Then, I get my Part 107, can I then sell those photos that I took as a hobbyist? Thanks for reply.

p.s. Just ordered a Part 107 study guide but I am not a good test taker. This may be difficult for me but will give it a shot anyway. (not a dummy though,) have run a successful commercial photography/filmmaking business for 40 years, Clio Awards, have hung out of many helos held in by a strap, holding a camera..hahhaha...Just not sure I can pass the test. Maybe I should be a bit more positive thinking on this. Latest film working on if interested, is powmiafilm.com.

 

[theDRONEranger]

That last part isn’t correct. A 107 pilot can fly under part 107 at any time even for recreation. Only if flying recreationally under the rules in the limited exception for recreational operations must a 107 pilot follow the rules for the limited exception for recreational operations. Basically you can’t mix and match rules but 107 flights can be for recreation or otherwise.

I think where people get tripped up is thinking part 107 is for getting paid and the limited exception for recreational operations is for recreation. In fact everything is 107 with the... wait for it... exception being that if flying for recreational purposes then you can fly under these special rules carved out in the Exception for Recreational Operations of Small Unmanned Aerial Vehicles.

For people without part 107 airman certificates this exception is the only way they can legally fly.

You state “basically you can’t mix and match rules but 107 flights can be for recreation or otherwise.”
wrong!!! Case in point: A pilot flying 107 at the time cannot switch to recreational flight to conduct flight that requires a daylight waiver. However, a pilot flying recreational in the same E Airspace can fly it recreationally. That punches a hole in the “107 flights can be for . . .”

 

[brett8883]

You state “basically you can’t mix and match rules but 107 flights can be for recreation or otherwise.”
wrong!!! Case in point: A pilot flying 107 at the time cannot switch to recreational flight to conduct flight that requires a daylight waiver. However, a pilot flying recreational in the same E Airspace can fly it recreationally. That punches a hole in the “107 flights can be for . . .”

You seem to have misunderstood. Any flight can be flown under part 107 rules. You can fly under part 107 rules for recreation (in the dictionary sense, “for fun”) or for work or whatever but you have to follow part 107 rules and get the appropriate authorizations or waivers if needed.

If you are flying for fun you can choose either part 107 or the limited exception for recreational operations. But once you choose you cannot switch in the middle of a flight and you have to follow the set of rules you choose.

Flights under the Limited Exception for Recreational Operations cannot be flown at night in controlled airspace under any circumstances so, respectfully, your example is really bad one. You could, however, fly for fun in controlled airspace at night if adhering to part 107 rules with the proper waivers.

 

[dawgpilot]

So my question is this. If I have flown as a hobbyist for a year and never took a penny from any of my photos or videos but do indeed have some great images. Then, I get my Part 107, can I then sell those photos that I took as a hobbyist? Thanks for reply.

You can sell those photos today, without a 107, as long as your intent at the time of the flight was recreational.

 

[Ty Pilot]

You are missing the point. If you fly under the strictest of FAR's then anything below that is legal (recreational)...I've been a professional helicopter pilot for 30 years....you are over thinking it

Actually, you are missing the point. If (for instance) I want to fly at night I must do so under recreational rules as we are not allowed to do so under 107, unless we have a waiver. . . . I've been a UAV pilot for 42 years. Apples and Oranges.

 

[RocketmanTurbo]

You can sell those photos today, without a 107, as long as your intent at the time of the flight was recreational.

Are you saying I can now go door to door selling the beautiful images I shot along the waterfront, or now have them for sale framed in an art store? It seems to me that even though I flew as a hobbyist and the intent was just for fun, I would still not be allowed to use those photos for any commerce. If so, I'm confused. Why would I even bother to get the part 107 then, in this case?

 

[dawgpilot]

Are you saying I can now go door to door selling the beautiful images I shot along the waterfront, or now have them for sale framed in an art store? It seems to me that even though I flew as a hobbyist and the intent was just for fun, I would still not be allowed to use those photos for any commerce. If so, I'm confused. Why would I even bother to get the part 107 then, in this case?

This has been discussed here ad nauseum: the FAA doesn't specifically regulate what you do with the photos. It regulates flight. If they can show that you had commercial intentions at the time you flew your drone, then that flight needed a Part 107 certificate. If instead you were just flying for fun, but later decided to sell the photos from the flight, that's none of the FAA's business.

The problem would be if you regularly found yourself selling your photos from your ongoing "recreational" flights, since the FAA could reasonably infer that you had commercial intentions the entire time.

 

[RocketmanTurbo]

This has been discussed here ad nauseum: the FAA doesn't specifically regulate what you do with the photos. It regulates flight. If they can show that you had commercial intentions at the time you flew your drone, then that flight needed a Part 107 certificate. If instead you were just flying for fun, but later decided to sell the photos from the flight, that's none of the FAA's business.

The problem would be if you regularly found yourself selling your photos from your ongoing "recreational" flights, since the FAA could reasonably infer that you had commercial intentions the entire time.

I know its been discussed quite a lot......Thanks for answering though. I appreciate it. Your last sentence sounds reasonable to me.... "if I regularly found myself selling photos from recreational flights" That I agree with...otherwise, someone would need to exercise mind control to get inside your head as to what your intent was...... Having said all that, I did order a study guide for 107 and am eagerly awaiting it's arrival. Have a good night.

 

[squeegee]

The intent of the flight at the time!

Now, if someone were to be thinking of taking all these photos and videos for personal pleasure beforehand, then one week later attempt to sell them, I would say that person is gaming the system! They would no longer have any reputable standing with many other “legit” pilots!

That would be my thought on the question to which the OP is alluding!

Another loophole suggests that commercial flights only count when footage is shot from the dron itself. The FAA never mentioned anything about external cameras, nor should they. Not to mention, they never specified what the definition of a "recreational flight" is, only that it has to be non-commercial, which would mean the drones built-in camera

 

[squeegee]

I was studying the rules regarding getting paid for take photo/videos to be in compliance with the 107 laws.

They gave this example: You ask someone if you have their permission to fly over and take videos of their property. A week later after you have looked over the footage, and realize how great it is....you contact the owner and ask if he wants to buy any of the footage. As long as you did not do it for financial incentive BEFORE the flight (such as talking money), you would be OK.

Any thoughts on this?

Another loophole would be that commercial flights are stated to only count if the footage is shot from the drone. But the FAA never said anything about external cameras, nor should they. Not to mention they specifically define what a "recreational flight" is, only that is has to be non-commercial, which would be build-in cameras for the drone