Over the last week, UAS blogs and news sites have been breathlessly asking whether a legitimate UAS hobbyist flight can be converted into a commercial operation after the fact. The answer is no. If it was a legitimate recreational flight, subsequent actions don’t “convert” it into a commercial flight. What does happen, however, is that your subsequent actions open the door to second guessing, and an argument from an objective outside observer that it was never a legitimate recreational flight to begin with.
Under the FAA Modernization and Reform Act of 2012, in order for a person to be able to take advantage of the hobbyist “safe harbor,” the aircraft must be “flown strictly for hobby or recreational use.” The FAA has further explained this standard in the Interpretation of the Special Rule for Model Aircraft, where it stated it would be guided by the dictionary definition of “hobby,” which is a “pursuit outside one’s regular occupation engaged in especially for relaxation,” and “recreation,” which is defined as “refreshment of strength and spirits after work; a means of refreshment or diversion.”
Because recreation is defined essentially as the opposite of work, the two pursuits are not compatible. What if no money is changing hands? Doesn’t that automatically mean it is a hobbyist flight? The answer again, is no. The FAA has cast its net very broadly, and stated that “flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight.” The words “incidental” and “in furtherance” of a person’s business is significant because it captures flights where no money is changing hands. For example, if I offer to fly for someone for free because it helps build good will in a potential customer, or it will help promote future services, that is “incidental” or “in furtherance” of a business purpose, and the lack of compensation is irrelevant.
In addition, the FAA made clear that the Modernization and Reform Act’s use of the phrase “strictly for hobby or recreational use” means that there can be no such thing as a dual purpose flight. In other words, if I am flying because I love to fly and because I might be able to make a little money on the side, it cannot be a legitimate hobby flight.
So, we have a system where the legitimacy of a flight depends on the subjective intent of the operator when he was flying. Unfortunately, we live in a world where people lie about their intent when they are caught doing something wrong. The only way to get to the bottom of the issue is to look at the objective facts, such as how the operator holds himself out to the public and what he has said to third parties about the flights.
So, when the FAA looks at a video on YouTube in response to a complaint, it is not punishing people for their free speech or going after people for exercising their First Amendment rights. The FAA is looking at the facts and trying to figure out whether these are hobbyist flights or commercial flights. While your subsequent actions, like receiving advertising money for the flight or using it to advertise a business, can’t “convert” a hobby flight into a commercial flight, the more you do these things, the harder it is for the FAA to believe you when you claim that you have always been an innocent hobbyist.
(Originally posted March 24, 2015)