A word on Licensing by Jason Tyrer
By Jason Tyrer
So I thought I would write a Blog for the Mongrel discussing the ramifications of conducting commercial UAV operations without an OC. As I started researching it, it became very clear that was simply not going to fit into one Blog (unless you all like reading essay sized blogs). Considering the target audience of the FPV Australia website I decided to aim this at the fellow professional.
Let me start by asking this, “Who would DELIBERATELY fly their UAV commercially, without an OC, knowing full well they were operating against the law and that they faced penalties if their actions came to the attention of CASA?” In my experience, quite a lot of people! Whilst some may be oblivious to the regulations, some may not realise what they are doing is a commercial operation, and some are just in it to make a quick dollar, I think the real reason so many do is the same as the reason we so often do 110KPH in the 100 zone, or talk on the phone on the highway. To the illegal operator, the chances of getting caught seem to be minimal and they have always gotten away with it in the past, so why should they change that behaviour now? I am not for one second condoning it, rather trying to justify in my mind why so many otherwise law abiding people would willingly operate this way. To me UAV operations are in the same league as all other Aviation operations and should be approached with the same level of maturity and proficiency. In my professional, full sized experience (I have been flying fixed and rotary wing since 1988 including a 10 year stint flying for the Australian Army) I have seen pilots willingly fly aircraft they are not endorsed on, fly at night when their currency has expired or they are not qualified, and I have seen first-hand a pilot deliberately and repeatedly descend well below minimum altitude whilst conducting an instrument approach still in cloud! Why did these professionals risk their lives and the lives of their passengers or at the very least risk losing what they had worked so hard to earn? In some cases it was commercial pressure (both real and perceived), in others it was ego, in some naivety, and just as above in some cases they justified it to themselves because they had done it many times before and had always got away with it….. It is easy to tut and say “I am not that sort of person, I would never do something that stupid” but I bet these guys never set out to be “That sort of person” either!
So what are the fines?
Before we consider what a commercial operation actually is let’s briefly look at what the regulations say CASA can do to us in the event we operate commercially without an OC and we come to their attention.
To make it easy enough to understand we will be looking at a small UAV (by definition >100 grams and <100KG), let’s say DJI’s ever faithful Phantom 2 fitted with a Gimbal and a GoPro!
The Civil Aviation Safety Regulations 1998 section 101 (you have read CASR 101 haven’t you? If not stop reading this now and go to THIS LINK. It provides the following fines should you be prosecuted for an offence. Of course a Magistrate could decide to award you a little less if they feel sorry for you. Remember also that these can be added together depending on the circumstances and you may get more than one offence. The CASR stipulates fines as penalty units, and as it is a federal regulation I have based the fine amounts on a federal penalty unit which is $170 per penalty unit. Also some of the things you can be fined for can be allowed in an OC or in an approval from CASA if you do the paperwork correctly and follow the processes.
- Operating a UAV for hire or reward without an OC – $8500
- Hazardous operation of a UAV (anything that creates a hazard to another aircraft, person or property) – $8500. Boy is this a broad brush description!
- Operation in prohibited or restricted airspace (most military airspace is restricted airspace) – $4250
- Operation in controlled airspace – $8500
- Operation near aerodromes (>400’ AGL and within 3nm), note this will include any promulgated aerodrome and approved helipad. Do you know where all the approved helipads are? You can count on every hospital having one for example, as will many beaches… – $4250
- Creating an obstruction to an aircraft (also very broad) – $4250
- Operating above 400’ (121.92 meters) AGL – $8500
- Dropping or discharging an item (this doesn’t stipulate on purpose) – $4250
- Flying in cloud, at night or in other than VMC conditions – $4250 • Operating within 30 meters of a person – $1750
- Operating over a populated area – $8500
- Operating in controlled airspace without making radio broadcasts and holding a flight radio telephone licence – $4250
So let’s say I do a photo shoot of a house on the beach at Palm Beach on the Gold Coast without an OC and I get paid for it. Let’s say it’s by day, I need to go to 450 feet to get the shot and let’s say the Westpac Helicopter is on duty that day…
- No OC – $8500
- Hazard to the Helicopter – $8500
- It is in Controlled Airspace (at that point the control zone goes to ground level) – $8500
- Near Coolangatta Airport – $4250
- Above 400 feet – $8500
- The beach would not be empty so probably near a person – $1750
- It meets the definition of a populated area – $8500
- You didn’t make a radio broadcast – $4250
Total fines you could get – $52750…. Let’s assume a friendly magistrate and a first offence and you get a 50% discount $26375.00 + legal costs!!! I hope the person paying for the photo is paying you well!
Also consider that if you are prosecuted there may be a conviction recoded against your name. There are ramifications associated with this such as an inability to get insurance, inability to get some clearances and security approvals, and the inability to work in certain sectors! I bet it would be almost impossible to get an OC or a Controllers Certificate either. But more on these considerations in a later Blog.
But what is a commercial operation?
Ok the above example was pretty obvious, someone paying me to fly a UAV and take photo’s but remember it says ‘for hire or reward’ so there may be some things you have not thought about. I propose the following not as a set of yes no answers, as the actual answer may well depend on the officer or magistrate on the day determining how they interpret the law. Rather I propose these as thought and conversation provoking items. Feel free to offer your own opinion but remember the law says ‘for hire or reward’.
So would it be a commercial operation if;
- I take photos’ of a friend’s wedding with a UAV in exchange for a carton of Boags and a nice bottle of red?
- I operate a small retail store and I use a DJI phantom to do demonstration flights so that customers can see how well they fly, see the features in use and increase sales?
- I offer a service where I am paid to build or repair and TEST FLY UAV’s for customers?
- I take photos of a friend’s house for free but those photos are used by a real-estate company to help sell the house?
- I give some video footage I shot from my UAV to the shop I work for to use on their display screen to help show customers what can be done with a UAV so that the company can sell more of them.
- I post video I have shot on my own website to help sell UAV’s I import?
- I post photo’s I have shot from a UAV on my professional photography website as an example of my work to entice customers to pay me to do work for them?
- Every day I fly a UAV around my property to check on my cattle, I check the water troughs are full and the windmills are still turning. I also check what cattle are where. I later sell these cattle for a profit.
- I fly a UAV with a sensor underneath that assess crop hydration levels and tells me other information to increase my crop yield and profitability of my farm.
- I normally pay someone to climb up and look at the top of a specific piece of equipment. I save money by doing myself with a UAV and a camera?
- I have designed a new and fantastic UAV or piece of airborne camera equipment. I intend to manufacture these and make a lot of money, but first I have to fly them and test them to make sure they work?
- I take some video of a bushfire and send it to channel 9 who put it on the evening news, I am not paid for the footage?
- I take footage of a surfing event in Hawaii with a UAV and sell the footage to an Australian company for screening on Australian TV and I am paid in Australian dollars in an Australian Bank?
- I take footage of an Australian Golf Game and I sell it to an American TV company via my American business and I am paid in US dollars in a US bank?
Ok so some of these are a little off the wall but I believe all are realistic possibilities. Again I am not saying all of these are commercial operations. Rather, I am trying to prove the point that we need to think EVERY TIME we pick up the transmitter to fly a UAV “Am I actually legal to do this flight?”
In my next Blog I will consider the OTHER ramifications of commercial operations without an OC such as what your insurance company would say and what impact it can have on the UAV industry as a whole!!
Jason is an independent writer and holds a Bachelor of Aviation, CPL Fixed and Rotary Wing and ATPL Fixed wing theory, Multi Engine Command Instrument Rating and Flight Instructor Rating