Drones are coming up more and more often as I travel the country to speak to broadcaster groups. It has become a hot issue, both at the Federal level and in many states. I asked two attorneys in my firm who are watching this issue to do an update on where things stand. Bob Kirk (bio here) and Rachel Wolkowitz (here) have provided the following update on where things stand on the Federal level:

Broadcasters increasingly are looking at drones, or “unmanned aircraft systems” (“UAS”) in FAA parlance, as a more cost-effective option for gathering aerial video and photos. After all, small drones can be used to gather aerial news footage for a fraction of the cost associated with using a helicopter. However, before going out and flying one, be warned, the FAA deems newsgathering a “commercial” use currently prohibited under its rules.

In February, the FAA proposed new rules that would open the skies up to small drones for some limited uses. Congress has ordered the FAA to integrate drones in the national airspace by September 2015, but most experts believe that the deadline will not be met. Indeed, the consensus is that it will take approximately two years to compile a record, review the comments, and adopt final rules for small drones, which the FAA says is the first step in letting many types of UAS take flight.

The proposed rules would permit commercial small UAS (“sUAS”) operations pursuant to the following conditions:

UAS weighs less than 55 pounds;

  • Prohibit use above individuals not involved in the operation of the drone;
  • Limit operations to within the line of sight of the operator or visual observer;
  • Prohibit nighttime operations;
  • Limit airspeed to 100 mph;
  • Prohibit operations above 500 feet; and
  • Require operators to be certified.

Comments on the proposed rules are due on April 24, 2014.

Prior to the release of the proposed rules, some reports indicated that UAS operations would require a full pilot license. However, the FAA has significantly backed off that requirement and instead established a new crewman position of “operator” for those controlling drone operations that would both be easier to obtain than a full pilot license and tailored to UAS operations. The proposal would also (i) create a framework for flying commercial sUAS that imposes operating limits and marking and registration requirements; (ii) codifies rules for model aircraft; and (iii) seeks comment on creating a more flexible framework for “micro” UAS.

In the meantime, the FAA indicated that it would consider granting exemptions on a case-by-case basis that would permit commercial drone operations. Hundreds of such requests have already been filed – including requests from parties seeking to deploy UAS for newsgathering.  One of the key issues in evaluating exemption requests is safety – will public safety be jeopardized by the operation of UAS for the requested purpose. Although the FAA has granted a variety of exemptions in recent months, no exemptions have been granted to date to permit newsgathering operations.

To address safety concerns regarding UAS newsgathering operations, CNN has partnered with the Georgia Institute of Technology to test UAS and demonstrate that their use in newsgathering would not endanger public safety. CNN recently agreed to share this data with the FAA pursuant to a technology sharing agreement. A consortium of various news organizations, including the Associated Press, have taken a similar approach and are working with Virginia Tech to demonstrate the safety of UAS newsgathering operations.

Given the anticipated delay associated with the rulemaking, parties interested in using UAS for newsgathering may want to expeditiously seek exemptions from the FAA. Parties also may want to support the FAA’s request to Congress to grant it authority to grant blanket exemptions in lieu of the current case-by-case approach.

Finally, in addition to the authority to operate issue, parties interested in utilizing drones should be monitoring privacy developments at the local, state, and Federal levels. Many states and localities already have regulations restricting the use of aerial footage from UAS. On March 4th, the National Telecommunications and Information Administration (“NTIA”) announced it is seeking comment on the new multistakeholder process aimed at developing privacy best practices for the commercial and private use of UAS. The first meeting in this process, date to be determined, will be open to the public.