Legal and practical drone issues

October 19, 2016 01:30

By John P. Fry
Compared to paying hundreds of thousands of dollars a year to maintain and fly a chopper, a drone with a camera may seem like a dream come true. And in many ways it is – but there are also a number of things to consider.
As you probably know, the new FAA rule (Part 107) makes it easier for businesses, including newsrooms, to incorporate drone usage into their toolkit. The rule provides greater flexibility and ease in getting the appropriate licenses and waivers. Under the old system, the operator of the drone had to be a licensed pilot. Now, a prospective operator can obtain a Remote Pilot Certificate by taking an exam. Most flight schools can administer the exam, which even teenagers can take. 
Since a chopper has a pilot, it can go practically anywhere, day or night. But a drone has to operate only during daylight and stay within the line of sight of the operator. So let’s say you’re on one side of a wide river and you want the drone to see what’s on the other side. If you can’t see the far bank without binoculars, you can’t send the drone.
Can you fly a drone up a ridge to see what’s on over the top? It would seem not, since commercial drones can’t fly above 400 feet. BUT – that 400 foot limit follows the contour of the slope. So you can indeed fly up a mountain as long as the drone stays within 400 feet of the ground and remains within the operator’s line of sight.
What about tall buildings? Let’s say you want to take video of a hawk roosting at the top of an 800-foot-tall high-rise. As long as you stay within 400 feet laterally of the building, you could fly a drone to the top. Regulators allowed that primarily for inspections of structures taller or higher than 400 feet, but again, it can apply to news. 
You can operate a drone from a moving vehicle, as long as someone other than its operator drives and you do this only in sparsely populated areas. This was mostly intended to allow agriculture inspections, but as long as the area is sparsely populated, the technique could also be used in news gathering. But forget about high-speed chases – even if you could keep it within the line of sight, it can’t exceed 100 m.p.h.
What if you want to use a drone to deliver batteries, phones or other supplies to a crew in a remote location? The whole thing would have to weigh less than 55 pounds. Luckily, a camera and supplies are not considered a “payload for hire;” if you were ferrying a commercial payload, such as a paid delivery, you couldn’t cross state lines.
In any setting, safety is critical and many news opportunities happen in areas where there is chaos; the drone user simply has to take those factors into account. You can’t fly above people who aren’t directly involved in the drone flight. Thus, you could use a drone to take an aerial shot of an accident site and rescue workers - provided you are not over those people or any gathering spectators - and do not interfere with the emergency response team. There have been significant issues out west with people trying to capture footage of wildfires using drones, which negatively impacts the U.S. Forestry Service’s ability to use aircraft to fight fires as the Service’s safety procedures require it to ground its aircraft if a drone is sighted.
And the airspace will become more crowded. Chopper pilots competing for the best shot are often aggressive, but careful, when they're all buzzing around a scene. That’s one reason that the FAA’s requirements for a Remote Pilot Certificate are similar to those required for a sport pilot’s license. The agency wants to make sure that properly-licensed operators have the knowledge level to exercise the same caution as helicopter pilots. 
By the way, NASA is working on unmanned air traffic management issues. These may lead to regulations for situations such as congestion caused by multiple news drones. It may be imposed on a broader basis, but the areas where air traffic management due to congestion is likely to be a significant priority.
Even if your station doesn’t have a drone, you may already have used footage hobbyists shoot and send to you. This can create some potential issues for those contributors. First, even if the person does not get paid for the submission, the FAA’s very narrow definition of flying for fun - and very broad definition of commercial operations - is likely to pull that video under the commercial umbrella.  Hence, unless the person has the appropriate license, they are flying illegally. It’s possible that many stations have accepted drone videos without fully understanding the issue.
The new rule also means many public safety agencies will be, or are already, using drones. Just as 911 calls were determined to be public records decades ago, cases may be made that search and rescue, disaster assessment and investigatory drone footage is subject to state open records laws and the Freedom of Information Act.
The FAA has fined a number of people based on YouTube posts that show reckless flying and flights that are clearly beyond visual line of sight. I do not think that is likely an issue for the news business, but be aware that to some extent, Big Brother is watching.
So what should news managers do? The big piece is to follow the rules, and keep your eyes open for changes.

John Fry is a partner with the law firm of Morris, Manning & Martin, LLP and the co-founder of the firm’s Drone Practice Group. This column is presented for educational and informational purposes and is not intended to constitute legal advice.


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