Commercial v. Non-Commercial Drone Use
Pursuant to federal law, the FAA may regulate commercial drone use, but does not, with certain limited exceptions, have the authority to regulate recreational use of drones by hobbyists. The distinction can be frustrating, and may have little relevance to those looking to promote safety. What difference does it make, from a safety perspective, whether a drone is being flown for commercial or non commercial purposes?
The Golden Gate Bridge, Highway and Transportation District has highlighted this issue in a letter it has posted to the FAA’s docket for its proposed rule on commercial drones.
In the letter, the Golden Gate Bridge accurately points out that a drone taking pictures of security-sensitive areas of the Bridge poses a security threat regardless of whether the operator is being paid—indeed, non-commercial use may have more pernicious intent. Here’s an article about issues concerning drone use near the Golden Gate Bridge.
The distinction between commercial and non-commercial use may be one without a difference in some respects. The FAA has recently taken the position that a hobbyist’s video taken from a drone may nonetheless constitute commercial use subject to FAA regulation if the video is posted to YouTube, because the YouTube website includes advertisements. This broad interpretation of “commercial use” could have significant implications if the FAA begins to regulate drone use that may have started out as recreational, but that it asserts became commercial only because it was posted on the internet. What if a hobbyist posts a video to a website that does not include ads, but is then linked to another website that includes advertisements? Do drone users have First Amendment rights to video taken by a drone-mounted camera and are those rights implicated by any government attempt to regulate the video after-the-fact?
Another reason why it is so important to establish the boundaries of the FAA’s jurisdiction is that if the FAA can not regulate commercial drone use, then States and local municipalities and agencies likely can, without raising issues of federal preemption. But if the FAA asserts jurisdiction over drone use simply because video ends up on a website containing advertising, then local regulation may be limited—local agencies will have to rely on reasons other than safety as a basis for regulating drone use.