Sightseeing Flights (25sm) ???

[hope2flyagain]

Can anybody shed some light on doing sightseeing flights within Part 91, 119, 135. As far as I can tell if I rent an airplane and I am a Commercially rated pilot and I stay within 25 statue miles of the home airport I can charge for that service as well as advertise. Please correct me if I am wrong, I apprciate all input.

 

[midlifeflyer]

For now (there's a proposed rule that may take even this away)...

Sightseeing is one of those things that you can do as a commercial pilot without going the 135 route. But there is a regulatory catch: you need to have a Part 135-style drug program in place.

Sightseeing flights within 25 NM which start and end at the same airport are exempt from operator certificate requirements under 119.1(e)(2). But 135.1(a)(5) lists a group of Part 135 rules that apply to these flights. Those rules, contained in 135.249, 135.251, 135.253, 135.255, and 135.353 are the drug and drug-testing rules.

What this means is that you may do sightseeing flights under Part 91 with only a commercial pilot certificate and without a Part 135 operator certificate. But (and it's a BIG but), you must have an official Part 135 drug program in place. Ends up being cost-prohibitive for many.

(There may also be insurance issues for the FBO if you are using the airplane for a commercial operation other than flight training.

 

[Mr. Irrelevant]

Why not just bring a camera and make it a photo flight?! Ok to do and not subject to the 25 mile limit. Part 119 (e)4.

Mr. I.

 

[A Squared]

Why not just bring a camera and make it a photo flight?! Ok to do and not subject to the 25 mile limit. Part 119 (e)4.

Mr. I.

really *really* bad advice. The FAA is not so stupid that they can't see through this, and unlike in real law where a transparent ruse may stand up, in administrative law, where you own the judges and they have to follow your interpretations, absurd, transparent ruses do not stand up.


The FAA is of hte opinion (and thiers is the only opinion which counts) that the photography exemption extends only to real photographers who are actually doing the flight for the sole purpose of taking photographs. One way that this passes muster is if the "photographer" is actually a professional photographer ad can show income from photography. A bonafide photography flight with an amatuer photographer may also qualify for this exemption.

Handing a Kodak "Fun Saver" to a couple of tourists and taking them on a charter flight does *not* qualify for that exemption.

The FAA has explained all this, although I think that this was issued in an Advisory Circular, rather than a legal interpretation.

 

[Mr. Irrelevant]

A Squared,

It may be bad advice, however I think the FAA is well aware that this goes on. Look at it this way, I've done a "photo flight" where the two passengers took over 400 photographs in an hour, maybe less time. They were not professionals. Just wanted pictures of a certain area. Although I would agree a little disposable camera is stretching it, you can't convince me that a photo flight isn't a photo flight when two people are going nuts taking pictures, professional or not. If an opinion was issued via an advisory circular it gives me an initial impression that the FAA did it that way because they don't have a legal interpretation. Understandable that they want a fine line between scenic and photo but someone doesn't have to be taking photos for National Geographic for a flight to be a photo flight.

Mr. I.

 

[avbug]

part 1

April 28, 1990
J. Robb Cecil, Esq.
Dear Mr. Cecil:

Thank you for your letters of January 9, 1990, and March 19, 1990, requesting an interpretation concerning your client's proposed aerial photography operations using a single engine airplane. According to your letter, your client's planned business venture would provide an aerial photo platform for professional photographers who wish to take aerial photographs or video recordings.

Part 135 applies to operations by air carriers (common carriers) and commercial operators (carriers other than common carriers) who transport persons or property for compensation or hire. In regard to common carriage, Part 135 applies to:

"... Air taxi operations conducted under the exemption authority of Part 298 of this Title." Section 135.1(a)(1).

As for carriage other than as an air carrier, Part 135 applies to:
"the carriage in air commerce of persons or property for compensation or hire as a commercial operator (not an air carrier) in aircraft having a maximum seating capacity of less than 20 passengers or a maximum payload capacity of less than 6,000 pounds, or the carriage in air commerce of persons or property in common carriage operations solely between points entirely within any state of the United States in aircraft having a maximum seating capacity of 30 seats or less or a maximum payload capacity of 7,500 pounds or less ..." Section 135.1(a)(3).
However, an exception to the applicability of Part 135 reads as follows:
Section 135.1
(b) ... [T]his part does not apply to
(4) Aerial work operations, including
(iii) Aerial photography or survey.

Question
The question presented in your letter is whether any or all of your client's proposed operations would fall within the "aerial photography" exception to the applicability provisions of Part 135. If so, then they could be conducted under Part 91 instead of under the more rigorous provisions of Part 135. If, however, your client's operations involve transportation of persons or property for compensation or hire, then they would be governed by Part 135.

Answer

The answer will depend upon whether the purpose of the flights is for the carriage of passengers or for aerial photography or both. If the sole purpose is for aerial photography, then the operation may be conducted pursuant to Part 91. However, if the operation includes carrying passengers from one point to another in addition to the aerial photography (that is, if it has a dual purpose), then the operation must be conducted in accordance with Part 135.

The Agency has consistently interpreted Part 135.1(b) so that if an aircraft lands at a site other than its origin, the "aerial photography" exception does not apply. This is due to the fact that the flight takes on the "dual purpose" of both aerial photography and transporting passengers from one point to another for compensation or hire. However, if the aircraft returns to the point of departure without landing at another location, then the "aerial photography" exception would apply. Thus, if an operator takes off on an "aerial photography" flight under the rules of Part 91, that person must be deemed to recognize that no landing other than at the origin point is permitted and should so inform his or her passengers before taking off. If the passengers indicate that they might ask for a landing, then the rules of Part 135 must be followed. If they do not so indicate and later change their minds, a prudent operator should decline the request on the grounds that he or she could be subjected to an Federal Aviation Administration (FAA) enforcement action. Indeed, a prudent operator should inquire before the flight to determine what is contemplated by the passengers. Having so inquired, the operator will have the facts required to conduct the flight under the correct rules.

The determining factor is whether the aircraft lands at a location other than the point of origin since the landing usually changes the nature of the operation from one of aerial photography to transportation of passengers and/or property for compensation or hire. In deciding what rules must be complied with, each flight, from take off to landing, is considered separately.

These principles for interpretation of the regulation are applied below to the three scenarios envisioned by your client.
Scenario #1:

(1) Airplane is flown about 100 miles from Airport A to Airport B to pick up the photographer.

(2) Airplane is then flown on a photo mission lasting as long as several hours out of Airport B without landing at any other airport. Airplane would travel as much as 100 or 200 miles away from Airport B.

(3) Upon return to Airport B, the photographer would leave the airplane. Finally, the airplane would be returned to its home base, Airport A.
Conclusion:

Since the airplane would not land at any other airport, the operations involved in Scenario 1 would fall within the aerial photography exception found in 135.1(b)(4)(iii), and could therefore be conducted under Part 91. The operator could charge for the placement flight from A to B, since the charge would not be for the carriage of persons or property for compensation.
Scenario #2:

(1) Airplane would fly from Airport A to Airport B to pick up the photographer.

(2) Airplane would then fly to Airport C (2 hours and 15 minutes flying time from Airport B). It would land for fuel and physiological reasons at Airport C.

(3) One or more photo missions would then be staged out of Airport C or D, etc., before returning to Airport B to drop off the photographer.

(4) Both the pilot and photographer, and possibly a second crewmember (who would be on board as a safety/relief pilot), might have to stay overnight one or more nights at Airport C or D, etc. to complete the assignment, either due to mission length, delays, etc.

Conclusion:

Each flight must be evaluated separately. The flight from Airport A to Airport B could be conducted under Part 91. Likewise, the flight constituting the photo mission, which would take off from and return to Airport C without landing, could be conducted under Part 91 since it falls within the aerial photography exception to the applicability of Part 135. However, the flights from Airport B to Airport C and from Airport C to Airport B involve the transportation of persons or property and would not fall within the exception for aerial photography. Therefore, they would be governed by Part 135.

We do not have enough information to properly evaluate the flights involving Airport D or other airports. We would need to know exactly how Airport D or other undesignated airports would figure in this operation and exactly who would be on board in order to arrive at a conclusion regarding these flights.
Scenario #3:

(1) Airplane would be flown from Airport A to Airport B to pick up the photographer.

(2) Airplane would then be flown to Airport C to pick up an "on-the-scene" art director/producer/ad agency representative who would be paying for the assignment.

(3) The photo mission would either then be flown directly, or the airplane would proceed on to Airport D, would land, refuel, and would then take off again to do the actual photo mission.

Conclusion:

Once again, each flight must be evaluated separately. The flight from Airport A to Airport B could be conducted under Part 91. In contrast, the flight from Airport B to Airport C involves transportation of persons or property, and would be governed by Part 135. If a photo mission were then staged out of Airport C and returned to Airport C without landing, then that particular flight could be conducted under Part 91 since it would fall within the aerial photography exception to the applicability of Part 135. However, if the airplane instead flew from Airport C to Airport D, such a flight would involve the transportation of persons or property and would not fall within the exception for aerial photography. It would therefore be governed by Part 135.

We hope this satisfactorily responds to your request. Your client's concern for safety and compliance with the Federal Aviation Regulations is appreciated. If we can be of further assistance, please let us know.
Sincerely,

/s/
Donald P. Byrne
Acting Assistant Chief Counsel
Regulations and Enforcement Division

 

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Part 2

April 7, 1989
Mr. Gerald Naekel

Dear Mr. Naekel:

This is in response to your letter of October 23, 1988, wherein you requested an interpretation of FAR 135.1(b)(4)(iii), applicability of Part 135, to flights transporting movie crews scouting for filming sites. Your hypothetical question is set forth below and is followed by our interpretation of the regulation as it applies to each of your questions.

"SCENARIO - Carrying Movie Crews:
Assume we have an FAR 135 Air Carrier certificate and operate several helicopters under FARs 91, 133, 135, and 137. We are contacted to provide a helicopter for a movie crew that will be filming in our area. Forget the flight rules portion of either FAR 91 or 135, we have a question of whether the operations would be "common carriage" under the Air Carrier rules.
Much like a survey crew, the movie crew wants us to fly here and there while they scout out filming equipment for filming. Some of the filming is done from the helicopter. Would that part be excluded from consideration under FAR 135.1(b)(4)(iii)? The other flights are a combination of known destinations and some are - again, much like survey work - start off as "lets go in that direction until we tell you to set down." Are the flight legs Air Carrier under FAR 135 or other commercial flights under FAR 91?"

QUESTION NO. 1
Would the filming that is done from the helicopter be excepted from Part 135?

ANSWER
We must caveat any answer we give because specifics of the operations are not present in your letter. For example, we are not sure what you mean by the statement "other commercial flight." Your letter reads as though you are asking questions related to the applicability of Part 135, however, the term "other commercial flight" is very similar to a flight time expression. If you intended to inquire into the applicability of Part 135, the information below may answer your questions.

The answer will depend upon whether the purpose of the flights is for the carriage of passengers or for aerial photography or both. If the sole purpose is for aerial photography, then the operation may be conducted pursuant to Part 91. However, if the operation includes carrying passengers from one point to another in addition to the aerial photography (that is, dual purpose) then the operation must be conducted in accordance with Part 135.

Your question concerns a Part 135 applicability exception which reads as follows:
(b) This part does not apply to ...
(4) Aerial work operations, including ...
(iii) Aerial photography or survey.

Section (b) of FAR 135.1 enunciates exceptions to the general rule of applicability including the "aerial photography or survey" exception. This exception, like all exceptions, operates to restrict the applicability of the general rule. The specific language excludes, "aerial photography," from Part 135 coverage. Thus, if a certificate holder is engaged in "aerial photography," the operation is excluded from 135 coverage and the operator need not have a Part 135 operating certificate.

Practically, your letter inquires into the meaning of the phrase "aerial photography." In construing the Federal Aviation Regulations, no magical formula or semantic insight is needed. Where a regulation does not define a word or phrase, it must be construed to reflect the common import of its language. The words should be taken to mean nothing more than a dictionary definition, which reports common usage. Clearly, the expression, "aerial photography," connotes a condition where taking pictures or filming is done from the air. In general, if the helicopter lands at a site other than its origin, the operation can no longer be considered solely "aerial photography and, therefore, would not fall within the scope of the "aerial photography or survey" exception.

Consistent with the above concept, the Agency interprets this regulation in a manner that if a helicopter lands at a site other than its origin, the "aerial photography or survey" exception does not apply. This is due to the fact the flight takes on a "dual purpose" of both aerial photography and transporting passengers from one point to another for compensation or hire. However, if the helicopter returns to the point of departure without landing at another location, then the "aerial photography or survey" exception would apply. Thus, if an operator takes off on an "aerial photography or survey" flight under the rules of Part 91 that person must be deemed to recognize that no landing other than at the origin point is permitted and should so inform his passengers before taking off. If the passengers indicate that they might ask for a landing, then the rules of Part 135 should be followed. If they do not so indicate and later change their minds, a prudent operator should decline the request on the grounds that he/she could be subjected to FAA enforcement action. Indeed, a prudent operator should inquire before the flight to determine what is contemplated by the passengers. Having so inquired, the operator can determine what rules apply.

QUESTION NO. 2
Would the flying where the movie crew wants to "fly here and there while they scout out filming sites and put people in place" be excepted from Part 135?

ANSWER
We presume that the helicopter is in fact landing at a site other than its origin. Therefore, these flights must be conducted pursuant to Part 135.

As noted in the answer to question No. 1 above, past interpretations and National Transportation Safety Board precedent, have held that if the helicopter lands and passengers deplane at another location, the "aerial photography or survey" exception does not apply. This is due to the fact the flight takes on a "dual purpose" of both aerial surveying and transporting passengers from one point to another for compensation or hire.

It is irrelevant that your operation "sometimes" involves flying just people and equipment, other times just equipment for filming." The pertinent fact is whether the helicopter landed at a site other than its origin as the landing would change the nature of the operation from an aerial survey operation to a dual purpose operation of both aerial survey and carriage of a passenger and/or property. Each flight is considered separately.

QUESTION NO. 3
Would the flying where the movie crew wants to "go in that direction until we tell you to set down" be excepted from Part 135?

QUESTION NO. 4
Would the flights where the destinations are known be excepted from Part 135?

ANSWER
Again, since the operation involves a landing at a site other than its origin, for the reasons stated in the answer to questions one and two, these flights must be conducted pursuant to Part 135.

We hope that this satisfactorily answers your questions.
Sincerely,
John H. Cassady
Assistant Chief Counsel

 

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Part 3

Edited for relevance:

August 5, 1975

Your second question is as follows:

2. Under Part 135, applicability, it includes aerial photograph as being covered by that part. A local television station has asked if they could hire the company plane and pilot for the purpose of photographing disasters, etc. Would this operation be a violation of Part 135?

Section 135.1(b) of the Federal Aviation Regulations specifically exempts aerial photography from the requirements of Part 135, therefore, supplying the aircraft and pilot to the TV station for such purpose would not require _____ to hold a Part 135 certificate.

Our General Aviation District Office at Wiley Post Airport, Bethany, Oklahoma will be pleased to aid you in this matter.
Very truly yours,

R.H. TYLER
Acting Regional Counsel