With the Federal Aviation Administration convening a task force to require the registration of most drones, I thought that it was worth taking another look at the current rules regulating the use of by media companies of what are more officially called unmanned aerial systems (“UAS”) and unmanned aerial vehicles (commonly called “drones”). We offered some discussion of the FAA process to license drone for commercial use a few months ago, here. Rachel Wolkowitz (see her bio here), one of the attorneys following these issues for our law firm Wilkinson Barker Knauer LLP in Washington, DC, offers these broad observations on how drones can be used for newsgathering under current FAA rules, and offers some cautions for both current and future use.
The use of drones presents great opportunity, and potential risk, for newscasters. Drones can be cheaper to fly than helicopters, and potentially can get closer to the action. On the other hand, drone technology is still nascent and safer operating technologies - e.g. sense-and-avoid systems that use internal systems to find and avoid hazards - are still being developed. Federal, state, and local governments are struggling with the potential safety and privacy implications that follow from putting thousands of drones in the sky for a variety of uses. They are creating a patchwork of laws, rules, and policies that have the potential to trigger liability for broadcasters. Below, we provide a high-level discussion of some key legal considerations for operating drones for news gathering.
The FAA, as steward of our national airspace, is leading federal efforts to enable the safe operations of drones. The FAA has taken the aggressive stance that all commercial operations are illegal unless specifically authorized - and to the FAA, newscasting is a commercial activity, requiring special permission. While the FAA is developing general rules for commercial operations of small drones, it has developed a special petition procedure called a Section 333 exemption to speed approvals in the interim. On the plus side, the FAA has authorized more than a thousand operators under this Section 333 procedure. But these approvals generally contain more than two dozen conditions, such as a prohibition on operations over people, which may limit a drone’s effectiveness for many types of news coverage.
In some cases, approvals have been granted to news organizations and, in other cases, approvals have been granted to parties who offer their services to news organizations. As a result, even if a newscaster is not itself authorized to operate a drone, the newscaster may be able to find some other company authorized to operate drones for commercial purposes in their area, and be able to obtain news footage from such a licensed operator.
Current FAA policy only extends liability to operators themselves, and the FAA has expressly disclaimed authority over newscasters that may buy footage from contractors or other third-party operators. That being said, stations may be vulnerable to legal claims under traditional tort law if their agent drops a drone on a bystander or otherwise captures footage of private events in violation of state or local law (as noted below).
A different federal agency, the National Telecommunications and Information Administration, is working with industry and consumer advocates to develop best practices for respecting privacy during commercial drone operations. Newscasters may wish to operate cautiously to avoid privacy issues, and to adopt the industry best practices once they are formalized, probably in a year or two.
States and localities are also formulating their responses to the soon-to-be drone-filled skies. Already in 2015, 45 states considered legislation and about half have passed legislation or resolutions proposing to study or restrict UAS operations. For example, in Michigan, it is unlawful to use a drone to interfere or harass an individual who is hunting or take game using a drone. In addition, current laws related to property damage, privacy/publicity, and employer liability may be applied to drone operations through the courts. For example, it is likely that state law applicable to news operations in the field - think traffic accidents involving news vans or liability incurred by news helicopters - are applicable to drone operations. So check state laws for limitations on the use of drones before you authorize their use.
Finally, Members of Congress are also introducing bills at a rate of one every few months that would alternately speed and retard the commercial use of drones. While none of the current bills are expected to be passed, they may influence decisions made at the various federal agencies considering drone policy, or inspire states to take their own action.
In sum, there is reason to be cautious and do your research when using drones for newsgathering, even for B-roll.