Drones and Newsgathering? Now May Not Be The Best Time …

But legislation currently in the works could improve prospects considerably.

It seems like everybody's been talking about drones and the myriad ways that they will make our lives better. Even we here in the CommLawBlog bunker have devoted considerable attention to the topic (although we're trying to get our readers used to the proper terminology: as far as the FAA is concerned, we should refer to "Unmanned Aircraft Systems", or "UASs", not to "drones").

But at the risk of sounding like a total fun sponge, I have to admit that I'm not all that bullish about the use of UASs by the media, at least for the foreseeable future.

That's because it's still really hard to meet the FAA's requirements for using a UAS for newsgathering purposes. While the FAA has (as my colleague Laura Stefani outlined in useful detail here last September) adjusted its policies to help facilitate UAS use, those policies still impose significant obstacles for media wishing to take advantage of UAS technology.

First and foremost, the FAA deems journalism to be a "commercial" activity. To get the FAA's blessing for UAS use in such activity, you've got to jump through three hoops. In particular, you must:

1. obtain an exemption from the FAA. Such exemptions, issued pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, come with a limited Certificate of Waiver or Authorization (COA) and can obviate the need for a separate FAA-issued Airworthiness Certificate;
2. arrange to have an authorized pilot (i.e., someone with an FAA-issued Airman Certificate) available to fly your UAS whenever you want to use it; and
3. properly register your UAS (check out this recap of the current registration process by another FHH colleague, Jon Markman).

Second, even if you take care of those three chores, your Section 333 COA will let you fly only:

• up to 200 feet above ground level (i.e., about as high as a 20-story building). (You could go higher, but before you could do so you'd have to apply for and receive a separate, stand-alone COA authorizing such specific exceptions.);
• during daylight hours, with total drone weight of less than 55 pounds;
• over areas certain distances away from airports/heliports, otherwise restricted airspace and certain densely populated places;
• while maintaining a visual line of sight with the UAS at all times (i.e., within direct eyeshot of the UAS); and
• at least 500 feet away from (and not over) "nonparticipating" persons unless those persons (a) are protected by adequate barriers or structures or (b) have given their consent and the operation doesn't constitute an undue hazard to them (a condition that dramatically limits one's ability to capture images of many activities likely to be newsworthy).

So where does all this get you? Not very far.

As a media company you would need to align with a licensed pilot. And even if you have the budget to hire a licensed pilot to fly your UAS (who knows, maybe the ace who flies your station's news chopper could step in when needed?), look at those restrictions and ask yourself "what does this get me?" You can fly your UAS only at relatively low altitudes in pretty remote, unpopulated areas that would still have to be accessible otherwise (since your pilot would have to be able to see the UAS in operation). That means some of the cooler uses for UAS are probably out: no flying over active volcanoes (unless your pilot is willing to walk pretty much right up to the edge); no bird's eyes views of emergency crews dealing with disasters, whether natural (earthquakes, floods, wildfires, etc.) or man-made (train wrecks, crime scenes, etc.); no sweeping shots from above traffic jams, festivals, protests or other large gatherings of people.

In other words, don't count on a steady stream of endlessly gripping visuals from your UAS.

And don't think that you can count on freelancers to provide such visuals on a regular basis, either. In the FAA's view, freelancers are subject to the constraints imposed on commercial UAS use unless the freelancer happens to be a recreational (or "hobbyist") UAS operator. If your go-to freelancer happens to be in the business of selling UAS-obtained content to media companies, he or she is not a hobbyist, as far as the FAA is concerned. Sure, it may be possible, even likely, that you can find a friendly hobbyist who is willing to provide you with some useful material, but if you go back to that hobbyist again and again, he or she will almost certainly fall out of the "hobbyist" category.

But don't despair. All of this is the way things are now. There is at least a glimmer of hope that things will get better.

Earlier this month, Rep. Earl Blumenauer (D-OR) introduced the Commercial UAS Modernization Act, H.R. 4432, in the U.S. House of Representatives. (A similar bill, labeled S. 1314, was introduced in the Senate last year by Senator Cory Booker (D-NJ).) Rep. Blumenauer's bill would make it much easier to operate so-called "Micro UASs", i.e., a UAS weighing less than 4.4 pounds, including payload.

How? First, by eliminating the requirement that the UAS operator have a pilot's license. That's particularly important because it's unclear whether the FAA currently has the authority to waive the pilot requirement on its own; some legislative provision expressly giving the FAA such authority may be necessary.

Second, by easing other restrictions as well. Micro UASs would be permitted to fly over people for both commercial and noncommercial purposes. Removing the commercial/noncommercial distinction is, in and of itself, important in terms of eliminating the need to obsess about a distinction that is confusing, at best (not to mention logically - and legally - dubious). But even more important is the prospect of using UAS in cities and other crowded places - exactly where they are most needed because use of a helicopter might be dangerous, impossible, or at best, not all that helpful because it will be so high above the focal point.

To my mind, the Commercial UAS Modernization Act would go a long way toward opening up UAS use for newsgathering and other journalistic purposes.

Sure, there would still be some restrictions over and above the 4.4 pound weight limit (including, e.g., maximum operating height (400 feet), daytime-only operation, line-of-sight requirement, limited proximity to airports). But to me those seem relatively tolerable. And as to the 4.4 pound limit, that's about the size of a bird, heavy enough to include an HD camera, small enough not to pose much risk to folks on the ground. According to a recent op-ed by Brendan Schulman (a honcho at DJI, the world's largest consumer drone manufacturer) published in The Hill newspaper, there has never been a reported aviation fatality attributed to a small or medium bird at a low altitude away from an airport (where Micro UAS operation will be allowed) since data collection began in 1990.

The bill is supported by several influential associations and coalitions, such as: the Association for Unmanned Vehicle Systems International; NAB; Information Technology and Innovation Foundation; and the Small UAV Coalition (which includes such heavy hitters as Amazon Prime Air, DJI, Google[x], GoPro, Intel, Parrot, Verizon Ventures, and 3DR, among others). That range of support is good news.

And the better news is that it actually has a chance of going somewhere - though it may need some help. As it turns out, Blumenauer's bill has been added as an amendment to H.R. 4441, a/k/a the Aviation, Innovation, Reform and Reauthorization (AIRR) Act. (Note to Congress: Can't you come up with better acronyms?) Of course, Congress hasn't been in the business of legislating much in recent years (even though that is its business) and individual bills don't have great prospects for passage. But because the AIRR Act is significantly broader in scope than most bills - it would authorize the FAA to undertake a number of reforms to the nation's aviation system - its prospects for passage are much better. In fact, H.R. 4441 passed the House Committee on Transportation and Infrastructure. Next stop: the House Floor.

I, for one, want to see the AIRR Act pass (despite its terrible acronym). If you're a media outlet looking to dip your toes into the world of UAS (and who wouldn't want to?), then you may want to look into encouraging your elected representatives to make it happen.