Laws on drone use still murky
August 8, 2014
By Tonda F. Rush
CEO | NNA
WASHINGTON—With the prices of sophisticated drones now at roughly the price of an old used car, newspapers are looking longingly at their uses in covering tough-to-reach spots—like hurricane or tornado disaster areas, environmental wastelands and even highway accidents.
Freelance and staff photographers examine the high-resolution output of a GoPro™ camera that can swivel on a gimbol below a drone at 400 feet. They salivate over the possibilities for photojournalism.
But the Federal Aviation Administration is, so far, unmoved by their enthusiasm. Though the law at present remains murky, the FAA’s position is that use of unmanned aerial vehicles by journalists is illegal. In fact, any use for a commercial purpose, even one protected by the First Amendment, is illegal.
So says Charles Tobin, a First Amendment lawyer with the Washington law firm, Holland and Knight, who briefed UAV hopefuls at the National Press Club recently. Tobin represents a media group lead by the National Press Photographers Association and other national news organizations who are challenging the FAA to adopt reasonable rules that allow for news coverage.
The FAA is on the defensive in an administrative procedure before the National Transportation Safety Board, which earlier struck down the agency’s policy against drone use. FAA had fined a Dutch photographer who took aerial shots of the University of Virginia medical campus after duly notifying the school, its helipad operators and others. What he did not do was notify the FAA, which cracked down with a $10,000 fine, Tobin said.
The photographer, Rafael Pirker, appealed the fine to the NTSB, which ruled the FAA lacked authority for the fine. FAA promptly asked for another review by NTSB. That is when media organizations stepped in.
Tobin said his group believed that in the first place, the agency had failed to initiate proper rulemaking under the Administrative Procedures Act. But more than that, it failed to recognize free speech and free press rights.
“The news media believe we need proper regulations that take into account the First Amendment—restrictions narrowly tailored to a significant government purpose,” Tobin said.
Congress has now gotten involved. In the FAA Modernization Act of 2012, it ordered the FAA to develop a plan by 2015 that integrates the uses of UAVs with other aircraft, and to specifically design rules for drones less than 55 pounds. That would cover the popular DJI Phantom 2 Quadcopter, a four rotor vehicle that sells on Amazon for a mere $700.
Will newspapers soon recruit interns skilled in the operation of robotic cameras in the air? Not if the FAA has its way. But, according to Tobin, the First Amendment has not yet spoken. More litigation, regulation and test cases are still ahead. Meanwhile, the FAA has set up six test sites around the country to experiment with drone uses, and Tobin’s media group, led by the NPPA, is in line to teach them about journalism.