Is It Legal?

Can we lease our aircraft with pilot to another company so that they can use their sensor and/or operator to perform an aerial survey mission? Below is a review of the FAA legal interpretations concerning aerial work operations.

By Gregory S. Winton, Esq.

As an aviation attorney, I am often asked by clients to provide a legal opinion or interpretation of the Federal Aviation Regulations (FARs) concerning whether a particular aircraft operation is in compliance.  In almost every case, my initial determination is … “it depends.”  Since each aircraft operation involves a unique set of circumstances, a full analysis of the operational factors, as well as a review of the regulations, relevant case law, and FAA chief counsel interpretations is necessary. Accordingly, the views expressed in this article may not be applicable to every particular situation and, therefore, should be used as a general guideline only.  Each individual operator should consult with a qualified aviation attorney if a legal question arises concerning regulatory compliance.

During this past summer conference in Snowmass, Colorado (July 2012), I was asked by members of the Management Association for Private Photogrammetric Surveyors (MAPPS) to provide a presentation concerning the most recent FAA legal interpretation of FAR § 119.1(e), regarding aerial work operations.  This article discusses the FAA’s interpretation of the FARs, as well as the practical effects of failing to comply with the regulations.

Commercial Aircraft Operations

Before explaining the FAA’s interpretation of FAR Part 119, it is necessary to review the applicable regulations concerning commercial aircraft operations.  According to the FAA, when a flight involves the carriage of persons or property for compensation or hire, the operator is required, by 14 C.F.R. Part 119, to hold an air carrier or commercial operator certificate and operate such flights in accordance with the appropriate rules found in Parts 121 or 135.  

The Aerial Survey Exception

However, Section 119.1(e) provides an exception for several categories of operations such as “aerial work operations,” including “aerial photography or survey” [the “aerial survey exception,”  see 14 C.F.R. § 119.1(e)(4)(iii)].  Therefore, persons conducting operations described in § 119.1(e) do not need to hold a Part 119 operating certificate and may conduct these operations under Part 91, General Operating and Flight Rules.  However, the FAA has specifically stated that when aerial work operations have a “dual purpose,” meaning, for example, that an operation is conducted for both aerial survey and transporting passengers for compensation or hire, then the Section 119.1(e) aerial survey exception would not apply to that operation.

Further legal research concerning application of the aerial survey exception revealed a letter dated September 7, 2011, issued by the FAA Office of the Chief Counsel to attorney Ray Bonilla, Esq. (the “Bonilla” interpretation).  The Bonilla interpretation describes a scenario in which “ABC Company” is asked by a client to transport survey equipment with the purpose of conducting infrared videography along the length of a pipeline extending several hundred miles across multiple states.  Under the proposed scenario, a person not employed by ABC Company would be carried aboard the aircraft to operate the survey equipment.  The distance covered by the survey would require that the aircraft land periodically so that it may be refueled.  The distance also would require that the crew make overnight stops for meals and rest. 

The FAA’s Legal Interpretation

In response to ABC Company’s request for legal interpretation regarding aerial work operations, the FAA reviewed its legal interpretation issued nine months earlier on January 12, 2011.  Previously, the FAA had reached the conclusion that an aerial photography operation, with a passenger for hire on board the aircraft, would not be operating in accordance with the aerial work exception of § 119.1(e) if it stopped to refuel at a location other than from where it took off.  Nevertheless, the FAA abandoned its prior position acknowledging that the agency has now determined interim stops are allowed for the limited purpose of meeting aircraft or human needs.  As a result, the FAA withdrew its January 2011 interpretation and issued the Bonilla interpretation instead.  The Bonilla interpretation answers several questions concerning the above scenario.  For purposes of this article, only the following two questions are applicable and will be discussed:   

I. Question:  May a helicopter operator conducting operations under § 119.1(e)(2) or (e)(4) make a landing to address aircraft of human needs?

FAA Legal Interpretation: An aerial work flight that meets the exceptions articulated in § 119.1(e)(4) could land at a location, other than from which it departed, and remain under the exception to Part 119 if the stop at the non-departure point location is limited to refueling or human needs.  Operators would be prohibited from picking up additional passengers or property and no work such as pipeline inspection, photography, or filming, would be permitted while the aircraft is on the ground.

II. Question: May the person carried aboard the aircraft that operates the survey equipment remain at the location where the survey is concluded, or must he return in the aircraft to the survey starting point?

FAA Legal Interpretation: If the flight takes on a dual purpose than [sic] it would need to be conducted under an operating certificate.  A person who boards the aircraft at the survey’s starting point must be returned to the starting point.  Otherwise, the flight would take on the dual purpose of transporting the passenger from “A” to “B.”

The Penalty for Non-compliance

The next logical and relevant question is usually, “what happens if the operation is determined to be in violation of the regulations?” The penalty to be determined is controlled by FAA Order 2150.3B, entitled FAA Compliance and Enforcement Program.   Specifically, Appendix B contains a table of sanctions applicable to each operation and alleged violation.  Depending upon the type and size of the business, an operator could be fined with a civil penalty in the maximum amount of $1,100.00 to $25,000.00 for each regulatory violation, and for each flight operation found to be in violation of the regulations. 
Additionally, the pilots could be charged separately with a civil penalty or enforcement action ranging from a warning letter to certificate revocation.  Clearly, any operation that is considered by the FAA to be in violation of the FARs can become extremely costly and detrimental to any business entity.

Furthermore, if an incident or accident occurs and the FAA determines that the flight was conducted in violation of the regulations, the insurance carrier could potentially deny coverage and the cost of legal defense in the case of a lawsuit.  Therefore, it is advisable to obtain a legal interpretation if there is any question concerning whether or not a particular company is operating in compliance with the regulations.  

FAA Office of Chief Counsel

The Office of Chief Counsel, Regulations Division, provides legal support for all areas of regulation within the FAA.  Each branch within the division provides formal legal interpretations of FARs in their respective practice areas.  These interpretations are primarily provided to agency personnel, but are also provided to the public.  Attorneys within the division draft and review new or modified regulations, applications for exemption from regulations, legal memoranda, advisory circulars, and orders. 

The FAA legal interpretations and the chief counsel’s opinions are now available online at  At this time, however, not all interpretations or chief counsel’s opinions are available.  The database consists of legal interpretations issued from 1990 to the present and are updated regularly. 

Gregory S. Winton, Esq. is the founder and president of The Aviation Law Firm, located near Washington, D.C.  For the past 25 years, Winton has dedicated his professional career to promoting the aviation industry.  He is a former senior trial attorney for the Federal Aviation Administration, and he served as a trial attorney for the United States Department of Justice, Aviation Litigation Division. 
In addition to his Juris Doctorate (J.D.), Winton has earned a Bachelor of Science (B.S.) Degree in Aeronautics.  He is a certificated commercial pilot with multi-engine land and instrument airplane ratings.  Winton has also been a certified flight instructor for more than 25 years.

Questions and inquiries may be directed to:

Gregory S. Winton, Esq.
The Aviation Law Firm

Disclaimer - Not Legal Advice - No Attorney-Client Relationship Formed by This Article or By Any Comments in This Article.

The information in this article is provided for general informational purposes only and is not intended to be legal advice.  The law changes frequently and varies from jurisdiction to jurisdiction.  Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances.  No attorney-client relationship is formed nor should any such relationship be implied.  Nothing in this article is intended to substitute for the advice of an attorney.  If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

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