Can Commercial Fly Recreational rules when not being paid?

[modbuilder]

I'm a 107 certified commercial remote sUAS pilot and have been invited to video/photo events that would not be paid and are definitely in restricted airspace. The most recent example was at an airport Open House. The airport is a Class B&C facility with no control tower. The airport manager and the show air boss are willing to let me fly the show within defined limits, but I've declined because I thought I'd need FAA airspace authorization and there wasn't 90 days available before the show. I also figured the FAA review would involve some back and forth that would further delay the decision.

Question for the forum -- Can a commercial 107 pilot work under recreational pilot Section 336 rules if not being paid? In the example case, photo/video a class B&C airport open house with permission of the airport manager and show air boss without FAA airspace authorization?

 

[sar104]

Technically, as far as the FAA is concerned, it's not a question of whether you are being paid, but whether your flight is recreational. From your description it doesn't sound as if the flight(s) would be purely recreational, but that's the deciding factor.

To answer the more basic question - yes - at Part 107 pilot can fly recreationally under Part 101 rules provided that the flight meets all the criteria in Part 101.

 

[cyeung]

I also heard that if the outcome of your flying is to be used in furtherance of any commercial activity, then Part 107 rules apply ... even if it is something that benefits a non-profit.

 

[sar104]

I also heard that if the outcome of your flying is to be used in furtherance of any commercial activity, then Part 107 rules apply ... even if it is something that benefits a non-profit.

That's correct - if it furthers anything other than your personal enjoyment then it is not eligible for Part 101.

 

[Qoncussion]

Question for the forum -- Can a commercial 107 pilot work under recreational pilot Section 336 rules if not being paid? In the example case, photo/video a class B&C airport open house with permission of the airport manager and show air boss without FAA airspace authorization?

I think one of the best examples to help you understand the difference between what the FAA considers to be a commercial vs. hobby flight is this: When 107 was first introduced, I was on the verge of flying some footage for an independent film maker. I contacted the FAA, stating that neither I nor the film maker would be making any money for the footage. BUT, the film was being shot as part of an indie film festival, for which the theater was charging money for tickets... Boom! Commercial flight. There was no grey area here. The end result generated income for the theater - ergo - it was deemed to be a commercial flight. Hope that helps...

 

[Just_nick]

I'm a 107 certified commercial remote sUAS pilot and have been invited to video/photo events that would not be paid and are definitely in restricted airspace. The most recent example was at an airport Open House. The airport is a Class B&C facility with no control tower. The airport manager and the show air boss are willing to let me fly the show within defined limits, but I've declined because I thought I'd need FAA airspace authorization and there wasn't 90 days available before the show. I also figured the FAA review would involve some back and forth that would further delay the decision.

Question for the forum -- Can a commercial 107 pilot work under recreational pilot Section 336 rules if not being paid? In the example case, photo/video a class B&C airport open house with permission of the airport manager and show air boss without FAA airspace authorization?

Any time you're flying for recreational purposes, you can follow 336 rules. However, this filming of the open house does not sound recreational.

 

[modbuilder]

Technically, as far as the FAA is concerned, it's not a question of whether you are being paid, but whether your flight is recreational. From your description it doesn't sound as if the flight(s) would be purely recreational, but that's the deciding factor.

That's an interesting perspective. Hadn't thought of it that way. When I go out to fly for fun, I don't think of running out to the airport to photo a show. So even though there's no compensation involved, I guess that doesn't mean that it's automatically non-commercial.

Somewhere, sometime, the more flexible rules for recreational versus commercial operation are going to have to be reconciled. It just doesn't make sense for the larger number of recreational pilots to easily engage in behavior that would be deemed too risky for commercial pilots to do without rigorous review and approval. Oh well. Rant over.

 

[sar104]

That's an interesting perspective. Hadn't thought of it that way. When I go out to fly for fun, I don't think of running out to the airport to photo a show. So even though there's no compensation involved, I guess that doesn't mean that it's automatically non-commercial.

Somewhere, sometime, the more flexible rules for recreational versus commercial operation are going to have to be reconciled. It just doesn't make sense for the larger number of recreational pilots to easily engage in behavior that would be deemed too risky for commercial pilots to do without rigorous review and approval. Oh well. Rant over.

I completely understand your point of view but you still be missing the point. It's not a perspective - it's the actual wording of the law, backed up by FAA interpretation for those who questioned it. The test is not recreational vs. commercial, it's recreational vs. non-recreational. 14 CFR Part 101 doesn't mention commercial - what it does say is that you must be flying purely for fun:

§101.41 Applicability.

This subpart prescribes rules governing the operation of a model aircraft (or an aircraft being developed as a model aircraft) that meets all of the following conditions as set forth in section 336 of Public Law 112-95:

(a) The aircraft is flown strictly for hobby or recreational use;

(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(c) The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

(d) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(e) When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.​

 

[modbuilder]

I can easily pass the red face test for subparts (b) - (e) flying my example case. (That was not a hypothetical by the way.)

But for me those parts don't clarify the meaning of the bolded part (a) that says "flown strictly for hobby or recreational use". I've always considered that profiting in some way makes a flight a non-hobby. It almost sounds like the "strictly hobby or recreational" nature of a flight, if it isn't decided by compensation resulting from the flight, must be decided by whether it was fun. For me, it would have been fun to fly/shoot the open house because I would have viewed it as a new experience that required some thought and skill.

Now, yes, I would have wanted to add it to my resume, and I'd undoubtedly have wanted to put it up on my commercial web site. So......... to me, that is clearly benefiting from it commercially, and it's what led me to decline the opportunity because I didn't expect to get FAA airspace authorization.

Noteworthy -- somebody was flying a P4P during the Open House and undoubtedly photoing the event. Clearly he was only having fun.

Thanks for all the comments. It's been useful. And fun .............. R

 

[sar104]

I can easily pass the red face test for subparts (b) - (e) flying my example case. (That was not a hypothetical by the way.)

But for me those parts don't clarify the meaning of the bolded part (a) that says "flown strictly for hobby or recreational use". I've always considered that profiting in some way makes a flight a non-hobby. It almost sounds like the "strictly hobby or recreational" nature of a flight, if it isn't decided by compensation resulting from the flight, must be decided by whether it was fun. For me, it would have been fun to fly/shoot the open house because I would have viewed it as a new experience that required some thought and skill.

Now, yes, I would have wanted to add it to my resume, and I'd undoubtedly have wanted to put it up on my commercial web site. So......... to me, that is clearly benefiting from it commercially, and it's what led me to decline the opportunity because I didn't expect to get FAA airspace authorization.

Noteworthy -- somebody was flying a P4P during the Open House and undoubtedly photoing the event. Clearly he was only having fun.

Thanks for all the comments. It's been useful. And fun .............. R

Profiting always makes a flight non-hobby, but it's not the only thing that does. Maybe this will help clarify:

https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

 

[modbuilder]

OK, please let me pose another example with a slightly different twist on the same problem. This one also is real but with one fact changed for discussion purposes.

I was recently asked by a church to provide aerial photos for a Make-a-Wish Foundation event. It actually was not located in restricted airspace, and I did the shoot without hesitation. Of course it was gratis, and of course it's not anything I would post to my web site or otherwise include in a resume of experience out of respect for the family. It could just as easily have been in restricted airspace, and my dilemma from the prior example would have been right back in spades.

There was absolutely no commercial benefit involved with anyone engaged in this event, no sales, no marketing, no advertising, no resume or street cred, no food concession, nothing. I can't claim that it was fun, but it definitely made me feel like I'd done something good. There's no doubt in my mind that if I was a recreational pilot that it would have been an easy "Yes" to the request even if it required coordination with a local airport. However as a commercial pilot had it been in restricted airspace, I probably still would have approached the local airport authority and would have actually flown it subject to their approval without seeking further FAA approval. Sometimes you just have to use common sense. FWIW, this example provided less than 24 hours to prep for the event, so there was never a possibility of approaching the FAA.

The only hypothetical in this example is "if it'd been in restricted airspace". My understanding of the regs for 107 certification is that I'd have had to decline that request had it been in restricted airspace. My question for the forum: Could a 107 pilot have flown this under hobbyist or recreational guidelines in restricted airspace?

Thanks for your patience with these examples. They haven't been clear cut for me as I've worked through them, and I'm finding your feedback very educational..................... Bob R.

 

[sar104]

OK, please let me pose another example with a slightly different twist on the same problem. This one also is real but with one fact changed for discussion purposes.

I was recently asked by a church to provide aerial photos for a Make-a-Wish Foundation event. It actually was not located in restricted airspace, and I did the shoot without hesitation. Of course it was gratis, and of course it's not anything I would post to my web site or otherwise include in a resume of experience out of respect for the family. It could just as easily have been in restricted airspace, and my dilemma from the prior example would have been right back in spades.

There was absolutely no commercial benefit involved with anyone engaged in this event, no sales, no marketing, no advertising, no resume or street cred, no food concession, nothing. I can't claim that it was fun, but it definitely made me feel like I'd done something good. There's no doubt in my mind that if I was a recreational pilot that it would have been an easy "Yes" to the request even if it required coordination with a local airport. However as a commercial pilot had it been in restricted airspace, I probably still would have approached the local airport authority and would have actually flown it subject to their approval without seeking further FAA approval. Sometimes you just have to use common sense. FWIW, this example provided less than 24 hours to prep for the event, so there was never a possibility of approaching the FAA.

The only hypothetical in this example is "if it'd been in restricted airspace". My understanding of the regs for 107 certification is that I'd have had to decline that request had it been in restricted airspace. My question for the forum: Could a 107 pilot have flown this under hobbyist or recreational guidelines in restricted airspace?

Thanks for your patience with these examples. They haven't been clear cut for me as I've worked through them, and I'm finding your feedback very educational..................... Bob R.

That's a fine example, because it illustrates the very edge of this issue.

Firstly, the airspace is irrelevant in determining the category of flight - it simply leads to different requirements based on the flight category.

Secondly, the context behind this legislation is quite revealing. The FAA's fundamental position is that if an aircraft, manned or unmanned, is being flown around in the NAS then they have a duty to regulate it for safety reasons. Congress, in 2012, disagreed and, in the FAA Modernization and Reform Act of 2012 (Public Law 112-95), forbade the FAA from implementing any new regulations on model aircraft flight. Historically, of course, flying model aircraft was a niche activity conducted primarily at well-defined locations by enthusiasts, and had been a negligible threat to the NAS. Mass-market UAVs changed that completely, leaving the FAA both concerned and toothless. Their response was to bow to Congress's wishes (of course), but to define model aircraft flight as narrowly as possible in order to be able to regulate as much sUAS activity as they could. Their approach is debatable but, so far, it has prevailed. They defined Part 101 as "purely for fun" and everything else as Part 107.

As a result, another way to ask that question is not "did anyone profit" but instead "did I do this for someone else or save myself, or someone else, expenses that I/they would otherwise have incurred?" If the answer is yes then it fails the FAA intent behind Part 101. That might have been very different if they had been allowed to impose reasonable regulation on hobby flight, but they were not. That will likely change, of course, as Congress realizes the implications of their law.

In terms of your example, strictly speaking, it clearly fails the test. You provided a service that otherwise would have cost money. The motive is irrelevant. Would the FAA pursue you in this case - most likely not - but they could.

 

[modbuilder]

That does indeed clarify the matter, and it provides criteria that I think I can apply without ambiguity. Check me on this -- in the example above, neither a part 101 nor a part 107 operator should have accepted the request. The part 101 person should avoid it because it's not a recreational flight. The part 107 person should decline it unless they can obtain formal airspace authorization, perhaps through LAANC. How'd I do?

 

[modbuilder]

Man-o-man, this is an impossible situation for the PIC's and for the FAA. . If I understand this right, a recreational drone pilot can't legally accept any kind of volunteer flight because doing anything for someone else puts them outside the recreational definition, e.g., not even doing a search over the trees at the club field to help a buddy locate a downed model. Nor could a recreational drone pilot go up and inspect the condition of his own roof without technically violating the law because it's work that otherwise would have had to be purchased. Both of those examples would be regardless of the location in the NAS.

Any time the government sets up a restriction on behavior that has patently silly violations if strictly enforced, it just invites civil disobedience and local enforcement according to local norms. We don't need civil disobedience in the NAS, and the FAA certainly doesn't want control of the NAS to leak off into local interpretation and enforcement.

And all this is trying to keep up with highly capable sophisticated drones available at mass merchandising sources like Sam's and Best Buy at prices increasingly attractive to the general public. I'm not even sure where I come down on the AMA's position any more regarding the FAA Modernization and Reform Act. The world has shifted, and I'm barely keeping up.

 

[sar104]

That does indeed clarify the matter, and it provides criteria that I think I can apply without ambiguity. Check me on this -- in the example above, neither a part 101 nor a part 107 operator should have accepted the request. The part 101 person should avoid it because it's not a recreational flight. The part 107 person should decline it unless they can obtain formal airspace authorization, perhaps through LAANC. How'd I do?

Agreed. That would be my assessment of that situation.

 

[sar104]

Man-o-man, this is an impossible situation for the PIC's and for the FAA. . If I understand this right, a recreational drone pilot can't legally accept any kind of volunteer flight because doing anything for someone else puts them outside the recreational definition, e.g., not even doing a search over the trees at the club field to help a buddy locate a downed model. Nor could a recreational drone pilot go up and inspect the condition of his own roof without technically violating the law because it's work that otherwise would have had to be purchased. Both of those examples would be regardless of the location in the NAS.

Any time the government sets up a restriction on behavior that has patently silly violations if strictly enforced, it just invites civil disobedience and local enforcement according to local norms. We don't need civil disobedience in the NAS, and the FAA certainly doesn't want control of the NAS to leak off into local interpretation and enforcement.

And all this is trying to keep up with highly capable sophisticated drones available at mass merchandising sources like Sam's and Best Buy at prices increasingly attractive to the general public. I'm not even sure where I come down on the AMA's position any more regarding the FAA Modernization and Reform Act. The world has shifted, and I'm barely keeping up.

I think that's a good summary. But note that the FAA really isn't pursuing people helping to find downed drones or looking at their own roofs. They have issued letters to search and rescue groups using drones without Part 107 certification. So - helping a friend - probably safe enough. Providing a service to an organization, or effectively advertising a free service, as in the search and rescue example - that might attract their attention.