FAA is confused about what constitutes commercial drone use.

The FAA Is Completely Confused About What Constitutes Commercial Drone Use

The FAA Is Completely Confused About What Constitutes Commercial Drone Use

The citizen’s guide to the future.
March 19 2015 4:02 PM
FROM SLATE, NEW AMERICA, AND ASU

Flight Pattern

The FAA is completely confused about what constitutes “commercial” drone use.

A student from the University of Zurich watches a drone.
A student watches a drone on March 16, 2015 in Hanover, Germany.

Photo by Sean Gallup/Getty Images

It’s legal to fly a drone for fun in the United States. But while the Federal Aviation Administration deliberates over its final rules on unmanned aerial vehicles, what constitutes prohibited commercial usage and what doesn’t remains a considerable source of confusion.

Two drone hobbyists discovered this the hard way recently. Portland drone owner Steve Girard runs a website with drone imagery, and he began selling desktop images for a few bucks after he acquired a DJI Phantom UAV last year. But on March 3, he received a voicemail from someone identifying himself as Bobby Reed, manager of the FAA’s Portland Flight Standards District Office. The phone call, according to Vice, claimed, “They’ll be looking for you to pull down your website.”

Girard reported to the Portland Press Herald that although he removed the prices immediately and informed the agency that he had done so, he still received repeated phone calls regarding his website—calls that he says only ended after he posted a recording of the voicemail online. (Jim Peters, spokesman for the FAA Eastern Region, didn’t respond to my request for comment.)

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Meanwhile, Tampa drone hobbyist Jayson Hanes received a letter dated March 9 stating that the FAA had received a complaint that said he was violating the strictures against commercial use. The letter, which is readable at this link, cited Hanes’ YouTube channel—full of drone videos from the Tampa Bay area—as evidence and said, “it does appear the complaint is valid.”

The vocal online drone community seized on the cases as evidence of FAA overreach, and a potential First Amendment violation to boot. Some interpreted these incidents as evidence of a wide-ranging FAA crackdown on drone videos uploaded to the Internet. That probably isn’t the case, but these two run-ins with the U.S. aviation authority are excellent examples of the confusion surrounding what does and doesn’t constitute commercial UAV usage in the United States.

While some observers assumed that Hanes received the letter because he had chosen to monetize his videos on YouTube, the ambiguously worded letter doesn’t actually say anything that specific. When I reached out to Hanes, he said that he hadn’t received any payment from YouTube—and pointed out (accurately) that many other U.S.-based drone pilots have monetized aerial videos on the video-sharing site as well. Hanes has kept the drone videos online but has since removed the monetization feature from his YouTube channel. Meanwhile, Girard’s website is still live, but he’s stopped selling his photos. Both men maintain they didn’t do anything wrong, and it remains unclear whether anything more will come of these FAA communications.

It’s not at all certain that the agency has any intention of backing up these threats. As of this writing, the FAA has yet to actually prosecute anyone for commercial usage of a UAV—and some, such as Connecticut attorney Peter Sachs, argue that until the FAA’s proposed voluntary guidelines on UAV usage become final, there are no actually enforceable laws at all.  

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So what do these communications mean for the FAA’s overall position on online media and drone footage? As is often the case when it comes to the FAA and UAVs, it’s hard to say. Drone law expert Brendan Schulman, who has previously defended drone operators against FAA charges of reckless flight, says of the Hanes case, “I don't think the letter is clear enough to draw some of the conclusions about the agency's position.”

The letter also reflects the fact that regional offices within the FAA have a considerable amount of autonomy when it comes to enforcement and regulatory matters—and with nine regional offices spread across the U.S., there’s a lot of room for disagreement on various fine points of UAV flight. FAA spokesman Jim Peters told the Portland Press Herald that while the agency’s guidance on educating operators does include sending a letter and following up with the polite in question, it “does not include language about advertising.” He added that the FAA would “look into the matter.”

The broad definition of “commercial” in the context of drone flying likely has a lot to do with the confusion as well. “The FAA has traditionally adopted a very broad view of activities that constitute commercial operations,” says lawyer Brian D. Smith of Covington & Burling LLP. “In short, receiving anything of value is considered compensation. When traditional regulatory interpretations designed for aircraft are applied to drones, it often leads to very strange results.”

One such strange result: What matters is the intent of a pilot at the time of flight, not whether money was made off the footage or photography later. “The decision on regulatory compliance is made at the time of flight,” says Loretta Alkalay, aviation attorney and adjunct professor at Vaughn College of Aeronautics—meaning that even if a hobbyist later makes money on footage shot in a “for fun” flight, it can’t later be deemed “commercial,” and vice-versa.

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That doesn’t mean that hobbyists can simply fly, sell the photos, and plead that they remain hobbyists if the authorities contact them. “It can be used as evidence. If you’re constantly flying and selling your photos, at some point the FAA could say you’re in the business of selling them,” says Alkalay. Further, the videos could likely be used as evidence of flight that violates the FAA rules for model aircraft, such as flying above 400 feet, or flying too close to a airport.

If only a few drone pilots are being targeted, then what are the selection criteria? It’s likely bad luck, and maybe a little jealousy. Some in the drone community suspect that as the industry grows, competitors in the aerial imagery business are beginning to lodge complaints against one another to regional FAA offices. “It’s happening more and more each day,” claims Sachs. “And it will only increase as more exemptions are granted.” (FAA representative Les Orr made the same observation to Vice.)

Others have argued that the targeting of YouTube channels and hobby websites is evidence that FAA inspectors aren’t exactly making the best use of their limited time and resources. With only a little more than 4,000 inspectors working in the U.S. on last count on all aspects of aviation safety, including commercial flight, it’s definitely questionable why they’d spend their time analyzing relatively small-fry websites. 

“One thing I worked on at the FAA was getting people to focus on the biggest safety issues. One of the biggest safety issues with UAVs is that someone’s monetizing it on YouTube? That’s absurd,” says Alkalay. She says that the FAA communications Girard and Hanes received don’t seem to have anything to do with safety—which the agency has publicly claimed is its primary priority when it comes to overseeing drone flight.

So what should drone hobbyists do in the face of all this often confusing information? Calm down, mostly, but at the same time remain vigilant, and try to avoid having a complaint lodged about their work to the FAA—whether by a well-meaning citizen or by a competitor with more malicious intent. Pilots who want to avoid awkward conversations with aviation authorities should take pains to adhere to the agency’s voluntary guidelines for model aircraft, and that means no posting cool but rule-flouting flights on the Internet.

Hobbyists should also remember that the enforceable regulations for drones are still being crafted, and the 60-day public comment period on the Notice of Propose Rulemaking is slated to end on April 24. While the FAA may not be widely coming down on monetized videos now, it’s possible that the final, enforceable version of the agency’s drone laws could include something of the sort. So if you’d like to ensure that your awesome drone YouTube channel remains on the up-and-up, it’s time to make your voice heard.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.

Faine Greenwood is an assistant researcher at the Harvard Humanitarian Initiative, focusing on how drone technology can be used in humanitarian contexts.