Drones are making headlines. Following the story of the off-duty Connecticut television station photographer who has now filed a federal lawsuit against the Harford police alleging civil rights violations because they stopped him from using his drone at the scene of a fatal car accident, I’m reflecting. Back to the days when I was advocating in favor of commercial use of dramatic high resolution satellite imagery that is now commonplace. Back to the California intrusion/private facts case involving broadcast footage of rescue workers helping two car accident victims in an emergency helicopter, Shulman v. Group W Productions, that was the subject of much discussion in the early days of my career. About how the line between journalism that is protected by the Frist Amendment and state law, and newsgathering that creates liability for invasion of privacy, remains murky. About how drones may be the new frontier in that balancing act.
Obviously, drones offer great promise as a newsgathering tool. They may be an easier and cheaper means of acquiring aerial photographs and video to illustrate the impact of natural disasters, to take pictures in places that are inaccessible because of dangers or other impediments. They promise to help news organizations gather information when they can’t do so from the ground. Drones may provide different perspectives on sporting events than can cable- or track-based cameras. Certainly, there are times when they would keep journalists, pilots, and crews out of harm’s way. And, if these unmanned vehicles fall from the sky, they would do less damage to persons and property than would a helicopter. It seems only a matter of time before drones augment existing tools of the trade and provide journalists with more flexibility.
Before we get there, however, there are technology and capability matters to consider. And, of course, policy, regulatory, and legal considerations. That’s why media lawyers are learning to be “air” lawyers. Unmanned Aircraft Systems (UAS) have captured the interest and imagination of not only the media, however, but also of diverse businesses such as Internet retailers, environmentalists, health care organizations, and a host of others.
Commercial uses of drones within the National Airspace System (NAS) require authorizations that have only been issued in a handful of isolated cases. In the FAA’s view, UAS operations without such authorizations are illegal. In response to news reports highlighting emerging drone uses, the FAA is stepping up its enforcement actions to block those activities. In addition, privacy concerns (Senator Feinstein spotting a drone outside her home’s window), local community reactions (including an effort to issue drone hunting licenses), and safety concerns (being knocked down by a misguided drone) are creating added challenges for establishing a workable framework for authorizing domestic and commercial UAS use.
Simply stated, an understanding of regulatory “do’s” and “don’ts” is necessary for anyone who wants to manufacture, provide, or use UAS for commercial purposes in the United States. The FAA considers drones aircraft—they must be operated by a licensed pilot and are subject to air safety control systems and requirements. Indeed, with a few limited exceptions, commercial uses of drones are not permitted. Congress, however, has required the FAA to develop a “Road Map” for integrating UAS into the domestic airspace and the agency is preparing a Notice of Proposed Rulemaking (NPRM) to invite comments on use of UAS and small UAS (less than 55 pounds) later this year. Anyone interested in building, buying, or using drones for domestic commercial purposes should be aware of and consider participating in the ongoing FAA proceedings and related congressional hearings.
For journalists, those discussions must be informed by legally established boundaries among privacy, a concern for public safety, and the First Amendment protections afforded to newsgathering. As we have done many times before, journalism organizations should engage to help ground unreasonable fears, and to emphasize how drones will help newsrooms better disseminate accurate and useful information to the public.
A sometimes overlooked piece of the puzzle – radio spectrum – also looms large as a challenge for capitalizing on the full potential of UAS. Because drones are treated as fully-fledged aircraft, they require aircraft radio licensing and, thus, use of spectrum allocated for aviation use. Government spectrum used for today’s military operations is not necessarily available for commercial uses under the U.S. system of bifurcating government and commercial spectrum allocations. There are important efforts ongoing to ensure the spectrum needed for existing and future UAS involving the FCC, the FAA, and the 2015 World Radio Conference.
Wiley Rein’s media, FAA, telecom, privacy, public policy, government contracts, State Department, NTIA and spectrum specialists are all focused on shaping the rules and policies that will govern drone use. For those interested, here are some key items to follow:
FAA Road Map for Integration of UAS into the NAS. Congress has given the FAA a 2015 deadline to accomplish the integration of UAS into the NAS. Wiley Rein has been monitoring the Road Map and its progress through the FAA process. View the Road Map here.
FAA Rulemaking on UAS and Small UAS Rules and Policies. The FAA’s planned rulemaking to set policies for the future of UAS appears to be working its way through the FAA and headed for DOT and Office of Management and Budget review in the summer. The public release of the NPRM likely will be at the end of the year.
Testing Procedures and Newly Authorized Test Sites. Wiley Rein has been involved in exploring a number of options and ideas for securing FAA and FCC authorizations in order to engage in UAS tests. In addition, the FAA has authorized new test sites for partnering and experimentation while ultimate rules are being considered.
News, Sports, and Entertainment Program Filming or Coverage. The use of UAS for news, sports, and entertainment filming and coverage is one of the hot issues and near term question marks given FAA restrictions. Wiley Rein is looking at various ways to obtain near term authorizations that could satisfy FAA safety concerns.
FirstNet and Public Safety Opportunities. FirstNet is in the planning phase of deploying a nationwide public safety wireless broadband network. Drones could provide a way of supplementing or complementing the capabilities on this large undertaking. View background on FirstNet and drones here.
Congressional Hearing and Privacy Considerations. One Senate hearing has been held on UAS in the wake of the Amazon Prime Air coverage on 60 Minutes. A series of additional congressional hearings is anticipated in 2014. An emerging issue in these hearings is concern about privacy implications of drone deployment. View information about the January 2014 Senate hearing on UAS safety and privacy considerations here.
Legal Challenges to FAA Authority over UAS. The FAA brought an enforcement action for unauthorized UAS operations. View Wiley Rein’s status report on the legal issues and status of the proceeding here.
Spectrum for UAS Today and in the Future. Wiley Rein is monitoring FAA, FCC, NTIA, ICAO, and industry planning groups with respect to existing spectrum available for UAS as a result of the 2012 World Radio Conference, and the proposals to allocate additional spectrum at the upcoming 2015 World Radio Conference.