Agency looks to tighten up vague standards that have led to inconsistent access decisions.

If you as a broadcaster, producer, or artist want to head into a congressionally-designated wilderness area to create some programming (both newsgathering and other programming), you will likely have to get a permit to do so from the National Forest Service (NFS). And yes, the power to require a permit also encompasses the power to require a fee for that permit, so you can expect to have to pay for the privilege.

For years the standards imposed by the NFS on requests for such permits have been considerably subjective, which is never a good thing: the First Amendment frowns on governmentally-imposed limitations on freedom of expression and the press, especially when those limitations can be arbitrarily applied. To its credit, though, the NFS is considering tightening up its criteria. Whether the end result will assure broadcasters a constitutionally acceptable set of standards remains to be seen. But any broadcaster operating near a federal wilderness area – or who might at some point want to send a crew into such an area – should be aware of the NFS’s proceeding.

The NFS is charged with (among other things) the protection of wilderness areas. To that end, it has the authority to limit access to those areas. No problem there. But for some time the NFS has been imposing an “interim” directive specifying that permits for still photography or “commercial filming” in wilderness areas “may” – but not must – be issued. For these purposes, “commercial filming” includes the use of “motion picture, videotaping, sound-recording, or any other type of moving image or audio recording equipment”, for the purpose of

the advertisement of a product or service, the creation of a product for sale, or the use of actors, models, sets, or props, but not including activities associated with broadcasting breaking news.  For purposes of this definition, creation of a product for sale includes a film, videotape, television broadcast, or documentary of historic events, wildlife, natural events, features, subjects or participants in a sporting or recreation event, and so forth, when created for the purpose of generating income.

(Note that this reaches both TV and radio broadcasters.) The term “commercial filming” does not exclude news and documentary production (except for “broadcasting breaking news”), nor does it necessarily exclude noncommercial broadcasters.  (FYI – According to the NFS, the term “breaking news” is narrowly construed to involve “[a]n event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.”)

In other words, as matters now stand, if any broadcaster wants to send a crew into a wilderness area to produce a piece on, say, migratory birds, a show about your local Forest Service lands akin to The National Parks documentary by Ken Burns, or some other newsworthy topic that doesn’t happen to be “breaking news”, the broadcaster may be required to make the necessary showing. The broadcaster will then have to keep its fingers crossed, hoping that the NFS will be satisfied that the proposed activities: (a) meet certain threshold screening criteria; (b) won’t harm the land, (c) won’t interfere with others’ use and enjoyment of the land, (d) won’t create any risk and (e) will “contribute[ ] to the purposes for which the wilderness area was established”.

Let’s face it, those standards – and particularly that last one – are far from definite, which means that the NFS has a lot of wiggle room. And, sure enough, according to comments filed with the NFS by a number of public broadcasting organizations, the current standards have been interpreted differently by different NFS officials, leading to a range of disparate treatments of similar requests.  Take, for example, the case of Idaho Public Television (IPTV). According to the comments, in some instances NFS officials let IPTV film without a permit because it’s noncommercial, while other times a permit was required because IPTV was “considered a commercial entity”. (That last conclusion was reportedly based on the fact that IPTV’s “employees are paid a salary, or because it fundraises for its operations from private contributions, or because it makes some of its free on-air and online content available in a DVD format as a service for viewers at a small cost.”

Recognizing that the interim directive currently in place doesn’t provide “adequate guidance” relative to commercial photography and filming permits, the NFS has proposed alternative wording. The goal is to establish guidelines for the evaluation of requests for special use permits related to still photography and commercial filming in wilderness areas. Whether the proposed language changes achieve that goal is not at all clear.

The proposal retains the initial four guidelines, but amplifies considerably the fifth (i.e., the one requiring that the proposed activity “contributes to the purposes for which the wilderness area was established”). The NFS is instead proposing that an applicant seeking to engage in commercial photography or filming demonstrate that its proposed activity:

  • has a primary objective of dissemination of information about the use and enjoyment of wilderness or its ecological, geological, or other features of scientific, educational, scenic, or historical value;
  • would preserve the wilderness character of the area proposed for use, for example, would leave it untrammeled, natural, and undeveloped and would preserve opportunities for solitude or a primitive and unconfined type of recreation;
  • is wilderness-dependent, for example, a location within a wilderness area is identified for the proposed activity and there are no suitable locations outside of a wilderness area;
  • would not involve use of a motor vehicle, motorboat, or motorized equipment, including landing of aircraft, unless authorized by the enabling legislation for the wilderness area;
  • would not involve the use of mechanical transport, such as a hang glider or bicycle, unless authorized by the enabling legislation for the wilderness area;
  • would not violate any applicable order; and
  • would not advertise any product or service.

While the new language certainly puts flesh on the previously skeletal standard, it does not eliminate the First Amendment problems. To the contrary, it highlights them. Most obviously, the first element – requiring analysis of the “primary objective” of the activity – gives rise to possible content-based discrimination in the issuance of permits. From a wilderness conservation perspective, what difference does a broadcaster’s ultimate editorial purpose make? Sure, the NFS can and should protect against the possibility of physical harm to the wilderness area. But once such protection is assured, the photographer/sound-recorder/videographer’s ultimate editorial goal should be of no consequence to the NFS.

That’s especially true in view of the fact that “commercial filming” encompasses all manner of documentary and news-gathering except for the particularly narrow “breaking news”. Normally, news media would prefer not having their access to federal facilities limited based on their editorial purposes.

On the positive side, the National Forest Service Chief has acknowledged the potential problems and has sought to de-fuse them in a memorandum issued last month. According to Chief Thomas Tidwell,

Journalism is not to be considered a commercial activity for purposes of the regulations or our permit policies on any NFS lands. Journalism includes, but is not limited to: breaking news, b-roll, feature news, news documentaries, long-form pieces, background, blogs, and any other act that could be considered related to news-gathering.
…
If the primary purpose [of the proposed activity] is to inform the public, then no permit is required and no fees assessed.

While that may sound comforting, the actual language proposed by the NFS stops far short of Chief Tidwell’s gloss. As a result, notwithstanding that gloss, the potential for constitutionally inappropriate limits on access to wilderness areas could likely continue even if the NFS’s proposal were adopted. Ideally, the Chief’s recognition of the problem may lead to revisions to the directive’s language before it is adopted. Along the same lines, the NFS may want to take a look at its definition of “commercial filming”.

In any event, broadcasters should be alert to the NFS’s proposal and its potential impact on their activities. We’ll keep track of this proceeding and let you know when we learn of further developments.