That's the grey area, since the FAA fell back on existing FCC regs for their definitions the whole thing is sloppy as to their intent.

But my read is that it could go either way, and would have to be argued in court to be certain. Couple problems...

1. The regulatory problem: FAR enforcement is admin law... FAA, typically backed by the NTSB, can usually interpret stuff any way they like. So unlike the actual law, FAA intent matters as much as the letter of the regs (maybe more so). With Pilot Bill of Rights Act you at least now have better access to appeal to the judicial system. But your certificate action would most likely be in force while appeals play out. And I'm not certain you'd win.

2. Criminal Problem: FARs are not actual federal law, and have limited penalties, mostly certificate action and fines. You can't go to prison for violating an FAR.

HOWEVER... in some cases congress has passed actual federal law, with associated criminal penalties, as companions to the FARs to emphasize compliance. Examples include falsification of FAA records (ex. medical application form) and the cockpit PED rule.

So this particular FAR would be a dangerous one to "Press to Test" in order to explore the boundaries. While I kind of doubt the language is tight enough to convict beyond a reasonable doubt, it still seems pretty sketchy to go there.

I would at the very least contact a top-tier aviation law firm before doing anything along these lines that's going to be in the public domain (SM posts, youtube, etc). You can probably gain some insight by watching some of the pilot youtubers and see what they post... I'm sure that community has done some homework. Off the top of my head of all the youtubers I've only seen them post video recorded on the ground, never in flight, probably for this reason. One exception is the ACMI dude, who sometimes records in flight in the galley, bunk, etc. But he seems to avoid doing that in the flight deck. Probably for this reason.