Sightseeing flights that aren't quite legal...

[gkrangers]

I'm saying I would not log it as dual, and I would give them a camera. Makes the boss happy and its legal. PIC, ASEL Time only. I doubt the boss is forcing anyone to log time a certain way.

Ok, but what I said is the way it goes down.

And I'm not quite sure how the FAA looks on the disposable camera loophole...probably not very highly.

They advertise 2 sightseeing flights, 1 intro flight, and aerial photography all seperately.

 

[Amish RakeFight]

Is this at FRG?

 

[gkrangers]

Is this at FRG?

Nope.

 

[A Squared]

I'm saying I would not log it as dual, and I would give them a camera. Makes the boss happy and its legal. PIC, ASEL Time only. I doubt the boss is forcing anyone to log time a certain way.

Don't plan on that working to prevent a violation. If the FAA can say: "that's not legitimate dual instruction, it's an illegal charter" (and they can) they can just as well say:" that's not legitimate aerial photography, it's an illegal charter"

Either way, if the FAA decides the "dual instruction" or "aerial photography" is just a sham to get around the regulations, (and in both cases they're right) they hold all the cards, and they can make the violation stick.

 

[gkrangers]

Don't plan on that working to prevent a violation. If the FAA can say: "that's not legitimate dual instruction, it's an illegal charter" (and they can) they can just as well say:" that's not legitimate aerial photography, it's an illegal charter"

Either way, if the FAA decides the "dual instruction" or "aerial photography" is just a sham to get around the regulations, (and in both cases they're right) they hold all the cards, and they can make the violation stick.

Which is probably what would happen with this case..I just brought it up to see if there was something I was missing with its legality. And I'm just surprised, that as something that has gone on for years, that the FSDO hasn't found out or said a word about it.

 

[Way2Broke]

I'm just playing Devil's Advocate, but what would be deemed as a legal photo flight then? Do they have to bring there own camera, and it can't be disposable. Hey, I'm just sayin....

 

[A Squared]

I'm just playing Devil's Advocate, but what would be deemed as a legal photo flight then? Do they have to bring there own camera, and it can't be disposable. Hey, I'm just sayin....

Probably, yes.

Let’s look at 2 scenarios. You have a commercial pilot certificate and a Cessna 172. It has been only 20 hours since your airplane had an annual inspection.

Scenario one: You’re sitting in your hangar with the door opening, polishing your spinner. This dude walks up with a big bag of expensive, professional grade cameras, Hasselblads, Nikon F series, etc. He introduces himself as a photographer with XXX, a national publication and shows you credentials which support this. He asks you to fly him to the sire of a toxic waste spill 30 NM away so that he can shoot some photos of it for an article in the magazine, then return to land at the same airport. .

Scenario two: Your home base is an airport 30 NM away from Mt. Rushmore. You have a big colorful sign by the road which proclaims "see Mt Rushmore from the air, see the fall foliage, $50 per person." Ma and Pa Winnebago from Wisconsin pull in and hand you $50 each. You hand them 2 disposable cameras and tell them, hey, in order for this to be legal, you have to take pictures.

I think you could probably get away with scenario one without trouble, but I think that Scenario two would probably get you a violation, if the FAA chose to give you one. Why? Because in the first scenario, it is obvious that aerial photography is the *sole* purpose of the flight. The photographer really is doing that just to get photos if the spill, tourists do not go sightseeing over toxic waste spills, and you didn’t land anywhere but the same airport, so there is no transportation. You can make a very good case that this is a sole purpose photography mission.

In the second scenario, photography is not the sole purpose of the flight, the flight , at best, is a "dual purpose" flight, with the dual purposes of sightseeing and aerial photography. Take a look at the Legal opinion I included in the next post. Especially pay attention to this bit:

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.

Now, I think that the same principal applies here. If it is truly a sole purpose photography flight, it can be conducted under part 91 only. If the flight has a dual purpose, and one of those purposes is regulated by Part 135, it cannot be done legally without a certificate. In the letter they mention point to point transportation of people, in our scenario 2, the other purpose is sightseeing beyond 25 NM. Both of those operations would require a Part 135 certificate.

See next post for text of FAA Legal Interpretation.

 

[A Squared]

From the FAA's Office of CHief Counsel

FAA Legal Opinion:
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

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