The FAA recently issued an Order, Aviation-Related Videos or Other Electronic Media on the Internet, directed to its field offices. It was written in response to a number of recent, celebrated cases in which FAA staff ordered their inspectors not to bar individuals, who had posted videos, shot from a UAS as the platform, from posting them on the internet.
The UAS blog community has declared this retraction as a victory and has claimed that posting of these pictures are no longer prohibited. That’s an interpretation which is not supported by Order 8900.292 . More importantly, the publication of these UAS-generated images will likely result in the person responsible for their publication being barred from ever receiving in the future FAA authority to operate these aircraft commercial.
Much of the confusion derives from the FAA’s failure to explain its broad interpretation of what constitutes “compensation or hire” and “commercial flights”(see ¶6 there). This is not to say that the FAA was compelled to take this strict interpretation; for they have exempted other operators from this essentially economic test, which differentiates between safety standards. The lack of knowledge by the critics (and the inexplicable failure of the FAA to explain its rational) causes the UAS cheerleaders to have an opinion that the FAA’s legal view is incredible.
Order 8900.292 does communicate to the field inspectors that :
“Inspectors have no authority to direct or suggest that electronic media posted on the Internet must be removed.”
Beyond that admonition, the primary purpose of this directive is to list the steps to be taken by the Aviation Safety Inspectors to gather evidence necessary to prove that the operations were illegal. The checklist provides the FAA lawyers with what is needed to bring the appropriate legal action against the unauthorized UAS pilots.
At some time in the not too distant future, the FAA will have in place a set of regulations for application to become a commercial operator. An application for a 14 CFR Part 107 authorization will likely include, as all other applications for FAA certificates/licenses, a question asking the applicant about any past violations by the individuals of any of the FARs. The new Order 8900.292 may not result immediately in any criminal or civil actions against every violator identified (“too many to prosecute”), but if an individual whose internet-posted pictures, the FAA file will cite that instance as demonstrating the person’s unwillingness to comply with the rules. Such “proof”, even if not adjudicated, may serve as a basis to deny the applicant Part 107 authority.
Order 8900.292 is not a “license” to take and post UAS videos and more importantly, it contains instruction to develop information which will serve as a bar to get discretionary authority under Part 107 and all future UAS authorizations.
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