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FAQ Series, Part 1: Flying for Free, and Flying Over People

By Nathanael Showalter, May 19, 2017

This article is the first in what we hope to be a sporadic series that tries to answer some of the most frequently-asked questions in the unmanned community, from recreational users and commercial pilots alike. The staff at Hover Solutions, LLC, tries to be active in social media and user forums for the various types of UAVs we use, as well as those which discuss business operations, legal developments, and the process of earning the relatively-new Remote Pilot certificate from the FAA. We have noticed certain questions arise frequently and regularly, and have decided to provide a resource for people with such questions.

Today, we will address two questions: one which is specific to commercial and professional UAS operations; and the other which deals with UAV flights over people, whether during hobby flights or on the job.

Question 1: "Can I Start Building a Client Base or Portfolio if I Do the Work for Free?"

There are a few ways to answer this question, and to define what the Federal Aviation Administration considers "flying for business." But in the end, the answer always ends up being "no."

 

The crux of the issue is that the FAA does not define "flying for recreation" as equivalent to "not flying for financial gain." In fact, they base their definition of "hobby" on Merriam-Webster's: "A pursuit outside one's regular occupation engaged in especially for relaxation." Likewise, they use the same dictionary's somewhat more poetic definition of "recreation": “Refreshment of strength and spirits after work; a means of refreshment or diversion.”

 

Their reasoning is that work and business-related pursuits are exclusive of hobby and recreation activities. However, to illustrate, the FAA provided a helpful comparison chart in their Interpretation of the Special Rule for Model Aircraft (2014).

The key factor here is intent. It may be easiest to define "hobbyist use" by what it isn't: If you are using your drone for any purpose other than for your own personal enjoyment, even if your personal enjoyment is in the mix of motives behind your drone flight, then you are not using the drone as a hobbyist or for recreation, and your use requires the possession of a Remote Pilot Certificate from the FAA.

Now for the gray areas:

Education: In May 2016, the FAA released a memo stating that students may operate small unmanned systems as part of their courses of education at an accredited institution, as long as the students were at the controls. Teachers, who were being paid for their teaching, could not fly the UAS. Although this announcement was made prior to the release and enactment of 14 CFR part 107, the determination still applies; students do not need to have a Part 107 remote pilot certificate, but teachers do.

Charities and Non-Profits: These are slightly more clear-cut: Although these organizations do not operate for profit, using a drone on behalf of one of these establishments is still using the drone for a purpose other than personal enjoyment and relaxation, and a Remote Pilot Certificate is required.

 

After the Fact: Suppose a recreational user snaps a unique picture or films an incident with his or her drone, and is later approached by the media or a business owner interested in acquiring the images. Since the operator's intent at the time the image was captured was purely recreation, there is no harm in their selling the image. There may be some nuts and bolts to sort through if the operator then tries to sell prints of the image.

Not my Business: Some operators reason that since they are making no money from performing a flight, have no intention or incentive to keep or monetize the images they gather, and will probably never see the images again after giving them to a local business, this is a permissible activity. However, the FAA states that 1) the images were gathered in furtherance of a business, even if it wasn't the operator's, and 2) the operator would receive positive regard or favor, which constitutes a form of payment.

 

YouTube Monetization and Ad Revenue: Many vloggers and amateur YouTube personalities have begun using aerial footage in their videos, which are then monetized using YouTube's ad services. These videos generate revenue for the account through advertising. The FAA would consider that to be payment for media produced with unmanned aerial vehicles, which would require a Remote Pilot Certificate. Additionally, if the content creator did not monetize the video but included the aerial video as part of his or her regular content which is otherwise monetized, the FAA could possibly interpret the footage as adding value and currying positive regard for the channel, leading to indirect gain (this is conjecture on my part).

 

Flying Indoors: Flights taking place indoors are outside of the FAA's jurisdiction. You may fly for business without a commercial UAV operator's license as long as you are doing it indoors under a vertical overhead enclosure.

 

If this sounds like an unnecessary splitting of hairs, consider that the FAA takes very seriously the rights and privileges associated with its various levels of certification. Certified private pilots are required to forego any type of financial gain which may result from their operation of an aircraft, which means that they may not accept a gift of an hour's plane rental from a friend or relative, and must pay a pro rata share of the cost of any flight they make with passengers. Just as the FAA wants to clearly define and preserve the value of the Commercial Pilot's License, so they want to create value and discretion in the Remote Pilot Certificate by assigning its necessity to any money-making or business-building endeavor undertaken with small UAS.

Question 2: "When Am I Allowed to Fly Over People?"

There are actually several instances where flying over people would be considered legal/legitimate/permissible:

 

1) When flying for recreational purposes while adhering to the safety code of the Drone Users Group Network, as long as the drone weighs less than 4 pounds, the people under the drone have consented to be flown over, and the pilot does not linger with the drone over the people in question.

 

2) When flying for business with an FAA-issued waiver for 14 CFR 107.39, which will include the safety requirements which must be met before permissible flight above people (as of this writing, only FLIR and CNN have received waivers for 107.39, and they are very restrictive).

 

3) When flying for business under a Section 333 Exemption with a closed-set filming permit, with reference to a published Motion Picture and Television Operations Manual (MPTOM).

 

Otherwise, flight above people, regardless of drone size and the purpose of the flight, is not permitted while operating in the National Airspace System. The only general exception is human beings that are 1) Directly participating in the operation of the small unmanned aircraft, or 2) under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft, according to 14 CFR 107.39.


The FAA also published an Advisory Circular to go along with 14 CFR Part 107 when they released it in August of 2016: AC 107-2. This Advisory Circular was 53 pages long and contained elaborations on the rules stated quite briefly in the Code of Federal Regulations. Here is what AC 107-2 has to say about flight over people:

The key, and somewhat-debated phrase here is "directly participating in the operation of the sUAS." Does this include actors or video subjects vital to the video content being created? What about people who wander into the flight area? Can you have sporting participants sign a waiver with verbiage allowing a pilot to fly above them with a drone? The answer is in the FAA's commentary on Part 107, a 624-page document (Billing Code 4910-13-P) explaining why it formulated the rule like it did:

"The term “directly participating” refers to specific personnel that the remote pilot in command has deemed to be involved with the flight operation of the small unmanned aircraft. These include the remote pilot in command, the person manipulating the controls of the small UAS (if other than the remote pilot in command), and the visual observer. These personnel also include any person who is necessary for the safety of the small UAS flight operation. For example, if a small UAS operation employs a person whose duties are to maintain a perimeter to ensure that other people do not enter the area of operation, that person would be considered a direct participant in the flight operation of the small UAS. Anyone else would not be considered a direct participant in the small UAS operation. Due to the potential for the small unmanned aircraft to harm persons on the ground, the FAA does not consider consent or the need to do other work in the area of operation to be a sufficient mitigation of risk to allow operations over people. The FAA considers the risks associated with allowing operations over directly participating persons to be a necessary risk associated with the safety of flight because if UAS crewmembers are prohibited from standing near a flying unmanned aircraft, they may be unable to complete

their duties."

 

This means that actors, athletes, and all humans not specifically performing some task intended to increase the safety of the operation, as designated by the pilot in command, are not to be flown over during commercial drone operations.

 

Inducting Participants In a Flight Area: Many, many people have thought to put up signs which say a variation of the following: "I'm flying a drone here, and if you walk past this sign, you agree to have a drone flown over you as a member of the flight crew."
This simply won't hold water with the FAA, per the language in the Circular above. The reason is that, if a pilot were to use this tactic, the FAA could simply walk up to a member of the public and ask, "What is your designated role as a member of this operation?" If the person challenged can't name their position or task, or pick the pilot in command out of a lineup, they obviously are not involved with the UAS operation in question. It may be possible to induct 15,000 people simultaneously as visual observers to an operation, given time and a suitable PA system. However, this is hardly practical.
A similar tactic to this, as has already been mentioned, is to create a closed film set and fly under an appropriate Section 333 exemption with a specific provision for filmmaking. Everyone on the set would be involved in a professional filmmaking operation which included the use of UAVs. Uninformed, uninsured, and unwary members of the public would be kept out of the closed set by designated authorities.

 

What Counts as "Over?" Under the Section 333 Exemption operational restrictions, pilots could not fly drones within 500 feet horizontally of uninvolved persons unless there was some sort of barrier which would protect the public from the drone. This meant that, in a public park with a 1000-foot-wide circular pond surrounded by a popular jogging trail, a UAV pilot would have to park his drone in the exact center in order to do any flying. In the FAA's commentary on Part 107, they acknowledge that the 500-foot standoff was difficult and unnecessary, and explains that 107.39 simply requires people to be protected from drones flying directly above them. This gives us one way to define "over" people: If a drone falls and hits someone before it hits anything else, the drone was above that person.  This means that an operator must plan the flight with a number of factors in mind, such as wind direction and the drone's own momentum. It will not suffice to simply ensure there is no-one vertically below the drone. Also, operators need to make sure they will not strike any part of a person, including their outstretched arm or leg. However, there is no federal regulation prohibiting drones from flying "near" or "around" people, contrary to some understanding of the rules.

Weight Limits: In the DUGN safety regulations above (which only apply to recreational drone flights), drones flown over consenting persons must weigh less than 4 pounds. However, for commercial operations, the FAA makes no allowances for weight; any drone flown under 14 CFR 107 must not be flown above people unless the operator has a waiver for 107.39. One of the units named by FLIR in their waiver is so small that it probably earned the waiver by dint of its size alone.

Flying over Traffic: The wording in 107.39 specifically states that people in stationary vehicles are considered covered. However, in the 107 Commentary, the FAA clarified that flying over moving traffic was still not allowed during commercial operations, because a moving car operates in a dynamic environment where the introduction of a falling UAS could present a dangerous or fatal distraction.

 

Flying Recreationally: When flying a drone for fun, the FAA requires operators to adhere to a set of community-based safety standards, such as the guidelines published by the DUGN or the Academy of Model Aeronautics. The AMA does not allow deliberate flight over people, and the DUGN's standards have been detailed earlier in this section. Though these guidelines contradict each other, operators flying under one or the other shouldn't just "pick and choose" the rules they will follow, and should ideally be members of the organization whose guidelines they are following.  Refusing to pick a community-based organization's safety guidelines places the recreational operator at the mercy of the FAA, which specifically prohibits flight over people during recreational flights.

 

Flying Indoors: Indoor flights take place outside of the National Airspace System and outside of the jurisdiction of the FAA. However, that won't stop someone from suing a reckless drone operator for personal injury and/or property damage.

 

Culture Shock and A Look Ahead

 

Drones have drawn many people into the world of aviation who would never otherwise have been involved, and as such, thousands of new drone pilots have been surprised by the culture of safety and regulation that gave birth to the Federal Aviation Administration and is now propogated by it. Artists and content creators are often frustrated by what they consider excessive over-cautiousness; engineers and lawyers find it too vague and imprecise in its definitions and choices of phrase.

The FAA is, primarily, an agency whose mission is to make the skies safe. Almost every one of its regulations is designed to keep the public safe while keeping itself internally consistent. This means that, when trying to interpret unhelpful phrases like "directly participating in the operation of the aircraft," one should first consider its meaning in the context of public protection.

The FAA also makes rules based on the information it has in the moment the rules are required and drafted. The FAA has acknowledged that small UAVs weighing less than 4 or 5 pounds can probably fly over a crowd of people without posing a huge public threat. However, they must make a ruling based on the fact that 1) there is very little research on the effects of sUAS falling onto people, and 2) virtually every other aircraft approved for flight over people is either manned by a human pilot, possesses an airworthiness certificate, or both.

 

The FAA has expressed willingness to create a provision allowing greater freedom for drones that weigh less than a certain limit, and have been partnering with research firms to explore the effects of being hit on the head by a falling drone in order to begin drafting a regulation for micro UAS.

 

Drone regulation is still in its infancy, and we can expect many more changes on the federal and local levels in the years to come. Keep abreast, and keep flying.