Newsgathering Drones: Prepare for Takeoff?

FAA announces NPRM indicating that it will reverse course on commercial use of drones.

It's a time-honored Washington tradition that, when an agency wants to avoid press coverage of a controversial action, it will release notice of that action late on a Friday afternoon, ideally just before a three-day weekend. So it looked like the Federal Aviation Administration (FAA) was taking that tradition a bit further by announcing, on Saturday of Presidents Day weekend, that the next day (yes, that would be a Sunday) it would be announcing proposed rules for Unmanned Aircraft Systems - what the FAA refers to as "UAS" but what many of the rest of us refer to as "drones".

Since the FAA has in recent years been trying to impose the strictest regulation of drones possible - a trend with which I (and many others) have taken issue - I feared the worst.

So imagine my surprise when the proposed rules turned out to be " not so bad. In fact, adopting of the proposal would largely clear the way for the use of drones by media organizations.

Those who read our earlier posts on the subject will recall that the FAA considers journalism to be a "commercial" use of drones - something which can't occur without express FAA approval (at least according to the FAA). The agency threatened media entities using drones in a newsgathering capacity, sending cease and desist letters to innovators. (To our knowledge only one case has been actually litigated, and there the FAA suffered an initial set-back before winning on appeal before the National Transportation Safety Board. The case was then settled, with no admission of guilt by the drone operator and withdrawal of a number of charges by the FAA.)

But the recently announced (but not yet formally released) Notice of Proposed Rulemaking (NPRM) opens the door to eventual drone use. At 197 pages, it provides considerable detail which anyone planning on filing comments should review carefully. The rest of us can rely on the FAA's Press Release and accompanying "Overview" of the proposal.

The bottom line: While the FAA will still impose certain conditions on commercial (i.e., "non-recreational") use of "Small UAS", those conditions are not as onerous as I'd have envisioned.They include:

• A weight limitation of 55 pounds (although the FAA is also considering development of a separate set of criteria to be applied to "Micro UAS" weighing no more than 4.4 pounds (i.e., 2 kg)).
• "Small UAS" operators would need an "operator's certificate" (but not a pilot's license). Such a certificate would require only that the operator be at least 17 years old and pass a "recurrent aeronautical knowledge test" every 24 months.
• Flights could occur only during the daytime.
• There must always be "line of sight" contact with the drone - the operator (or an observer) must always be able to see the drone without anything aiding his or her vision (other than regular eyeglasses). (The NPRM does ask whether operations beyond "line of sight" should be allowed and, if so, under what conditions.)
• The drone cannot fly higher than 500 fee or faster than 100 mph; must stay away from airport flight paths, avoid restricted airspace, follow temporary flight restrictions and always give right of way to other aircraft.
• The drone may not "operate over" any persons not "directly involved" in the drone's operation unless those folks happen to be inside or under a "covered structure".
• The drone cannot be operated in a careless or reckless manner and it cannot be used to drop physical objects.

The proposed rules would not apply to "model aircraft" as defined under existing federal law; those would be subject to existing regulations governing "model aircraft" and would likely be subject to any rules eventually adopted with respect to "Micro UAS".

If adopted, the "Small UAS" rules will be a big step forward, even though they probably don't go as far as I think they should.

To my mind, the biggest shortcoming of the proposed rules is the prohibition against "operating over" people. That's a bit much, even in light of the safety concerns that prompt that particular limit (the primary concern: protecting unsuspecting folks on the ground from falling drones.) I'd much prefer a standard that balances safety concerns with the public interest involved. But, realistically, that's not how federal agencies write rules.

In any event, it's clear that several extremely beneficial, but currently prohibited, uses of drones could now occur. These would primarily include getting video from disaster sites or inaccessible areas for newsgathering purposes.

The NPRM's publication in the Federal Register will kick off a 60-day comment period. Given the usual pace of federal rulemaking proceedings, we can probably expect final rules to be issued in about 12-18 months - soon enough that you might want to start checking out the market for some new toys. Check back here for updates.