March 2015 Podcast: How the FAA’s proposed drone regulations could affect journalism

By Student Press Law Center

Jameson Rice, an attorney with Holland & Rice in Washington, D.C., discusses the Federal Aviation Administration’s proposed rules for commercial drone use and how these regulations could affect the future of newsgathering.

Frank LoMonte: Hi everyone, and welcome to another edition of the Student Press Law Center’s podcast, a monthly rundown of legal developments affecting people working in and around the student media. The Student Press Law Center is an advocate for the First Amendment rights of student journalists. We’ve gathered resources online for reference at www.splc.org. We hope you’ll take advantage of those free resources, follow the the SPLC on twitter @splc and send in any legal questions you might have to our free hotline, splc@splc.org.

Well, if you go out to a park and you fly around a toy model airplane for enjoyment, you are a hobbyist. But if you install a camera in that same plane, you have suddenly become a drone operator and in the view of many government agencies subjected yourself to regulation. Journalists of all kinds, from the professional newsroom all the way down to high school, are watching with great interest how the federal government will decide to regulate — or not — the use of unmanned aircraft for photojournalism and videography.

With us today to talk about the evolving landscape of regulation of drone photography is Jameson Rice, who is an attorney here in Washington, D.C., with the law firm of Holland & Knight. Mr. Rice is a graduate of Boston University law school, has his undergraduate degree from the University of Florida. By trade he is actually an authority in transportation law, which makes him the perfect person to address what is a transportation issue that is impacting on newsgathering.

There are at least four federal agencies — the National Transportation Safety Board, the DOT, the FAA and a number of others — that are getting into the act when it comes to restricting or regulating the way in which people might use aircraft to take photographs or shoot video. Some journalists have used these to generate some truly eye-popping images of sporting events, of weather events, and yet these exist in somewhat of a legal gray area today.

We’re hoping Mr. Rice can help us clear up some of that gray area and maybe forecast a little bit about the direction that the law is evolving. So, thank you so much for joining us. I should say, by the way, Holland & Knight is one of the most reliable go-to volunteer law firms the Student Press Law Center has depended on over the years. It’s got over a thousand lawyers nationwide and is known especially for its expertise in media and First Amendment law, so we appreciate all the work we’ve got from them over the years, and thanks Mr. Rice for being here.

Jameson Rice: Absolutely, my pleasure. Happy to be here.

LoMonte: So, back last May of 2014, Holland & Knight actually announced that they were starting a practice group with a specialization in drone law, which is remarkable that a law firm decided that that level of commitment and resources might be necessary for this, what seems like kind of a niche area of the law, so tell us about that practice group and what kinds of issues you work on.

Rice: Ya, it really is an exciting time, it continues to be an exciting time for drone practice or UAS practice, I’ll use those words interchangeably, so a Unmanned Aircraft System, a UAS, or a drone. It’s an interesting cross-disciplinary group. We have a lot of media credentials and certainly that’s where we come at it from, but also we have expertise in transportation, NTSB practice, you mentioned the National Transportation Safety Board, aviation general litigation, and all these things kind of came together because there was an interest that really grew out of our media practice.

So that’s kind of how Holland & Knight came to this kind of drone business as an outgrowth of our media practice, but certainly it touches on a lot of issues. I mean, Amazon is one with delivering packages that’s gotten a lot of press attention, but basically anywhere that you would like to put a small camera that would be either too expensive or dangerous for someone to fly a helicopter, or climb up high, or get down somewhere it would be difficult to put a camera, you’ve got a lot of potential use for drones. So that’s kind of what we were looking at is developing landscape in something that was really in an infancy and we were one of the first to jump in.

LoMonte: In February of this year, the Federal Aviation Administration announced new proposed rules about the use of drones. Before we jump in and talk about these new rules, maybe you can give the lay of the land currently as we stand here today in March of 2015. In the view of the FAA, who is, and who is not, allowed to put a camera on an unmanned aircraft and operate it for journalistic purposes?

Rice: That’s a great question. You mentioned hobby use a bit earlier, and that is one of the very few exceptions. I would start with the general proposition that almost all drone use is restricted. Almost none is allowed. Specifically, commercial use is not allowed, and that includes journalism in just about every context.

The hobby use is one restriction, or recreational use. You can use it, as long as you are following the guidelines, you can use it just in your back yard for fun, as long as that’s far enough away from an airport and the list goes on and on. There is also a public use exemption that is very narrow. I mention public use because on university campuses, we’ve been involved in certain clients that are public universities, and unfortunately that has been interpreted very narrowly, and so police and fire use are the kind of uses that usually fall within that exemption.

So for the most part, the general landscape is, you can’t use a drone. However, that has been slowly changing, so I can just walk though that timeline very quickly.

Back in 2012, Congress passed the FAA Modernization and Reform Act, and relevant for us was Section 333, and that name has been carried forward because it’s the name of an exemption we’ll talk about in just a minute, but Section 333 of the FAA Modernization and Reform Act mandated that the FAA determined what types of UAS could be flown safely. So two years later, October of last year, October 2014, the FAA started granted what they’ve called Section 333 exemptions, because of the name of the law, started granting exemptions for who can use a UAS, specifically for commercial purposes. And basically we say commercial use as a shortcut, but it really means any use other than hobby use or the other very narrow exemptions that were already allowed.

As part of these exemptions they started granting, that was great because this was really the first time that you are able to operate a drone beyond the very, very narrow restrictions. Unfortunately they put a lot of restrictions on it. Just to be clear, if you want to fly one beyond commercial use, you have to apply to the FAA for an exemption. Sixty-some odd exemptions have been issued so far and it’s been increasing a lot recently, but it’s been relatively slow going.

So there’s really not a lot of permitted use just yet, but just briefly the restrictions on those are relatively onerous, the drone has to stay within the visual line of sight of the operator, so yo u can’t take a first-person camera and go fly it far away, you have to be able to see it. You can only do it during daylight hours, the operator has to have a private pilot’s license, and you also have to have a visual observer with that pilot. You have to stay at least 500 feet away from people, from vessles, from vehicles, from structures unless you get permission, you have to stay on private property, you have to have permission of the landowner, you can’t fly over densely populated areas.

With that laundry list of restrictions, especially for media purposes and for a lot of purposes, it is incredibly restrictive, but hey it’s something. This is the first opportunity to be able to fly drones. Just fast-forwarding that timeline a little bit further, another big event came in February of this year when the FAA announced the notice of proposed rule-making, so basically that means that the FAA would like to have a rule regulating drone activity and they are proposing what their rule would look like and opening it up to the public for comment. And so there will be a public comment period, they will adjust the rule, potentially, based on all the comments that they receive, and eventually issue a final rule, which will become what the regulation is, what the law is.

That whole process is likely to take some time and a rule is not expected until 2017, but we are right now in the middle of the comment period, so up until the middle of April, the public or any interested party can supply their comments to the FAA to try to help shape what the future regulation will be like.

The rules are actually really exciting that they proposed, in that they were quite a bit less restrictive than people had feared. There was a lot of concern that the proposed rule would be very restrictive, much like the Section 333 exemptions. And it turns out that, in some important ways, they really did ease the restrictions. In the proposed rule, the operator still has to maintain line of sight with the drone, so it can’t go too far away and it can only be operated during daylight hours.

But they did relax a lot of restrictions in ways that are important. They proposed not to require a pilot’s license. There still would need to be a certification, an FAA test, but it it much, much less restrictive than the same sort of pilot’s license you would need if you were to go out and fly a plane.

They’re not going to require overhead use. Again this is a proposed rule, so it’s subject to change, but this is what the FAA is thinking now and asking for comment on. There wouldn’t allow overhead use, but there is no restriction for within 500 feet of a person like they have in the Section 333 exemptions and there’s no restrictions on operating near vessels or vehicles or structures or those sort of things.

They also proposed a Micro-UAS category. That would be even less restrictive, and these would be drones that are less than two kilograms, less than 4.4 pounds. For these micro-drones, you wouldn’t be required to have any testing from the FAA, you would just need to sign a statement that says that you’ve made yourself aware of the regulations.

There’s no overhead restriction of flight, so there would be a relatively lax for these so-called micro-drones, these less than 4.4-pound drones. So that’s kind of an overview in the ways in which they’ve proposed to relax the restrictions.

I do want to mention, too though, on that exact same day that they released the notice of proposed rulemaking, the White House, President Obama issued an executive memo and this is about privacy concerns.

So far we’ve been talking a lot about the safety concerns that the FAA is concerned about, but a lot of attention has been drawn to privacy, and I think for good reason, and so he called for the National Telecommunications and Information Administration, that’s the NTIA, to engage stakeholders and develop best practices for privacy and accountability.

There is a lot of focus on how the government would use drones, but also private use and privacy. Right now you’ve got kind of a patchwork of state law, and a lot of states have been passing new legislation to deal with drones, and it is possible you could have a federal law in the future. Right now there hasn’t been a lot of information about that, so we suspect, at least for the time being, that there would be state laws. But then the state laws vary from state to state how it is that they plan on addressing privacy, and they can’t go so far as restrict the FAA’s regulation of aircraft, so you get into interesting issues over who has jurisdiction to even make these sort of determinations, so there is a lot yet to be determined. We’re really just at the start now, and it’s so exciting because we’re issuing the comments, we’re proposing the comments that will shape what the rule will be for years to come.

So that’s kind of the lay of the land from the basic being you’re not supposed to use drones only under very limited exceptions such as hobby use and if you want to use one now and likely for the next few years, you have to apply for a Section 333 exemption and that’s a pretty high burden on operations, but at least it’s something that the FAA has permitted.

LoMonte: Right, and we should mention that there have been individuals fined by the National Transportation Safety Board for violating the FAA’s safety restrictions on the use of these unmanned aircrafts, and so it is something that can actually carry federal penalties and be enforced by federal fines, so there is no fooling around here.

Another thing I think is important to reinforce for those who are watching this area from their newsrooms, that even though all of the public’s attention has been focused on the FAA, there really is quite a lot of conversation going on at the state legislative level, and so far that has been focused on privacy concerns about flying over peoples’ homes and what one can and cannot do with the video that is gathered. So if your news organization is concerned about being able to effectively use drones to gather video, it is important to watch on what is going on at the state capitol as well.

Let me just ask you, as someone who deals in this area of the law and is knowledgable about these agencies, first of all, looking at the February release, are there areas that you might identify personally as being ones needing some improvement, needing some tightening up, and also what would you predict or anticipate the course of that rule making will be from here?

Rice: That’s a very interesting question and people have started to weigh in on it. I think the FAA in general did a very commendable job. Safety is their primary concern, and it really is a paramount concern for everybody interested in it, so certainly the FAA did a lot to protect the safety, possibly too much but their safety concerns are certainly justified and valid. The question is, how can you operate drones safely, but at the same time not restrict their use in ways that are going to prohibit really useful and innovative ways to use these drones?

Unlike Amazon, for example, if they want to deliver private packages, the proposed rule says you’re not allowed to do that, you can’t be an air-carrier, you can’t do transportation for compensation. So for somebody like Amazon these rules are a non-starter.

In the journalism context it’s not nearly as bad. I would say some of the major sticking points, for a lot of industries, is the visual line of sight restriction. There’s been a lot of advancements in technology, and this is continuing to develop and I certainly don’t hold myself out as an expert on all of these technologies, but between first-person cameras on the actual drone, night vision technology, thermal imaging, geo-fencing that you can program the certain area in which the drone must stay in that area and won’t operate beyond that area. It will come back to a home base if it operates beyond where you can control it. There is a lot of safety technologies that could offer an equivalent level of safety as being able to make eye contact with the drone, and right now the proposed rule wouldn’t allow those, you would have to stay within eyesight.

It is questionable whether or not it is actually safer to keep it eyesight than it is to have other operation that would include some of these other technologies.

So it’s nice that there would be an expansion in that way, and just a basic one too but related to that same point is daylight-only operation. The idea is you need to operate it in good weather, in daylight where you can see it, and it’s understandable because they operate from the framework in this see-and-avoid as a term they use because it is something that they use for manned aircraft, and it makes a lot of sense in the manned aircraft context.

But there are potentially a lot of safe uses beyond that. For news coverage, for example, if it’s a civil twilight and now you can’t operate a drone, that’s unfortunate because there are a lot of potential opportunities that may arise at night and it would be a shame if you had a drone that was capable of operating safely in that environment and you didn’t have it.

So I think those are some of the areas that would be nice to see an expansion, ideally now and if not now then in the very near future.

But overall I think some of the other easing of restrictions really were helpful, and for the most part the FAA is to be commended.

LoMonte: So I should mention we will put
a link to the regulations.gov section of the federal website where one can submit comments, and the Student Press Law Center is planning to formulate some comments to reinforce some of the points that Mr. Rice has been making about the importance of allowing for meaningful use of this technology for newsgathering. Just in the few minutes that we have left, I know that when the White House directed the FAA to start looking into liberalizing its restrictions, one of the responses was to create some regional pilots and tests of the technology to see how it could be used safely, and there are partnerships going on in different places around the country to try to expand the ways in which journalists can use these aircraft. =”#!documentdetail;d=faa-2015-0150-0017″>

Can you talk a little about those pilots?

Rice: I’d be happy to. Thank you very much for bringing that up. Actually, we represent a large coalition, a media coalition of some of the largest newspapers, magazine publishers, broadcast and TV companies, media companies, wire services, website operations, non-profit journalists’ associations, it’s a large conglomerate of media companies that share a similar goal and we represent and help them with these sorts of issues, including comments in Section 333 exemptions, but also specifically with this aviation partnership.

So the FAA set up these different test sites around the country to help them try to figure out how to shape future regulations so that they can figure out what sort of operations can be conducted safely, and so this media coalition that I mentioned has partnered with Virginia Tech, and it’s called the Mid-Atlantic Aviation Partnership, to test out all kinds of scenarios that might be useful for journalists’ purposes.

Just some of the proposed ones: a hostage situation, a natural disaster, a riot, a building fire, accidents or some sort of typical pieces, a golf tournament, that sort of thing, not always necessarily breaking news. But what are the sort of uses that a journalist might find themselves wanting to operate a drone for? So they are going to set up these scenarios, test them, figure out how it is they can be covered safely, and then submit those findings to the FAA.

And so our hope is that, this will be conducted this year, that this will help demonstrate to the FAA we’ll learn a lot out of it, how can we operate these safely? How can media companies operate drones safely? But also demonstrate to the FAA that they can be used safely and hopefully ease restrictions that will allow journalists to be able to use drones, maybe towards a broader group but possibly even just for them for specific journalism-based carve-out based on these safe sort of scenarios that we’ve already demonstrated.

It’s really exciting to be part of not only current regulations but also helping shape future roles in a lot of ways and hopefully journalists everywhere can take advantage of the work that we’re doing with this large group.

LoMonte: Terrific, well I want to thank Jameson Rice of Holland & Knight for joining us in sharing an update on the state of the law of federal drone regulation and invite everyone to check out the HKlaw.com website for updates and information about the work of the Holland & Knight drone practice.

We also hope that you’ll check out the Student Press Law Center’s website at splc.org, that you’ll follow us on social media — Our Twitter handle is @splc — and that you’ll keep us in mind with any questions about your legal rights. The easiest way to reach us is by email at splc@splc.org, or by phone at (202) 785-5450.

Please do note that number has changed since our recent move to Washington, D.C. (202) 785-5450, so thanks again to Mr. Rice for a really informative presentation, and thanks for your advocacy on behalf of the news media industry on this important issue.

We’ll look forward to further updates in the future, and thanks to everyone out there for listening. We’ll talk to you next month.