Drone on Drones: The Uncertain Line Between Commercial and Noncommercial Use

Best Best & Krieger LLP
Contact

QUnder the FAA’s current framework, noncommercial uses of drones by hobbyists are not regulated outside of general safety restrictions. A drone hobbyist can use his or her craft as he or she wishes, so long as the drone is kept in line of sight and under 500 feet. Any operator engaging in a commercial use of drones, on the other hand, is subject to very strict regulations including, for the moment, the requirement to obtain a permit from the FAA. This makes the line between commercial and noncommercial uses of drones incredibly important. Yet a recent letter from the FAA indicates that the contours of this line are far from certain.

Recently, the FAA sent a legal notice to a drone hobbyist who posted drone-shot videos on YouTube, informing him that because YouTube features ads, his flights constituted a commercial use of the technology. Drone-shot footage has been popping up on YouTube without controversy for years now, yet it appears the FAA may now consider posting videos captured by drones to be a commercial use (whether this is FAA policy or a one-off instance is not yet clear, as the agency has promised to “look into the matter”). The difference between commercial and noncommercial uses remains important while the FAA works to mainstream commercial use in the domestic airspace, but this leaves a lot of open questions about how drone owners can legally use the technology.

If posting videos on YouTube constitutes a commercial use, any number of other seemingly innocuous uses may become more difficult to parse. If you fly a drone for personal purposes but it later becomes valuable commercially (for use on TV news, for example), were you using the drone for a commercial purpose? If you display your drone footage in public later, does that now constitute a commercial purpose? What if you post it on a website that does not run ads, and the website later decides to monetize its content? This issue could quickly incorporate other questions, like whether drone users have a First Amendment right in the footage they capture, and whether the FAA can retroactively characterize drone use.

It is entirely possible the FAA will examine this issue and determine the use is noncommercial, but this letter indicates several potential issues. If the FAA stands by this policy, it will be open to legal challenge on several grounds. Even if it does not, this instance raises questions about the FAA’s piecemeal enforcement of its regulations, the true line between commercial and noncommercial use, and the confusion that exists both within the FAA and outside it about what uses of drones are currently allowed. These questions are not just legal speculation. The answers may have serious consequences for drone hobbyists nationwide, for the way the FAA conceives of drones going forward and for localities’ responsibility when it comes to enforcing regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Best Best & Krieger LLP | Attorney Advertising

Written by:

Best Best & Krieger LLP
Contact
more
less

Best Best & Krieger LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide