Interim update on interim FAA policy

As we reported earlier this year, the National Telecommunications and Information Administration (NTIA) has opened a proceeding looking at “best practices” for the commercial and private use of drones. NTIA’s first multistakeholder confab was held here in Washington on August 3 to explore some of the questions on the table; more meetings are set for coming months.

The NTIA proceeding is looking to the future. But we here in the CommLawBlog bunker are still getting questions about what the present status of drone use is, particularly for newsgathering. The answer, it appears, is contained in a brief memo issued by an FAA official a few months ago.

The memo answers three questions about the “media use of UAS”. As attentive readers will recall, “UAS” (short for “unmanned aircraft systems”) is FAA-speak for what many of us know as “drones”. The questions posed are:

  1. whether members of the media may use unmanned aircraft systems (UAS) for newsgathering;
  2. whether the media may use pictures, video, or other information collected by a person using UAS; and
  3. whether a person who sells images collected by UAS would need authorization for his or her operations.

The answers:

  1. No, a media organization may not itself use drones for newsgathering unless the organization holds an FAA authorization to do so.
  2. Yes, a media organization may use drone-collected images, video, etc. – and may even pay to acquire such material – as long as the material to be used was obtained from a drone operated by somebody who is not affiliated with the media organization.
  3. Maybe. If the drone operator obtained the images, etc., with the intent of selling them (whether to the media or any other buyer), then an FAA authorization would be required. However, if the drone operator were merely engaging in recreational flying, happened to get some excellent images, and only afterward decided to sell those images, no authorization would be necessary.

These answers, which are more or less consistent with the FAA’s historic position, highlight some of the conceptual problems with that position.

As we have seen, historically the FAA has distinguished between two kinds of drones – those that are operated as “model aircraft”, and those that aren’t. The former are subject to some relatively light, voluntary, guidelines; the latter are subject to significant restrictions. In the FAA’s view, any drone operated “for business purposes” does not qualify as a “model aircraft”. (Whether or not that view is legally enforceable in its present posture is not 100% clear, but we won’t dwell on that here.)

In other words, if a media organization operates a drone as part of its newsgathering operations, the drone is being used “for business purposes” and, as a result, the organization could not use any drone-produced materials unless the FAA had provided its prior authorization.

By contrast, if a hobbyist happens to obtain newsworthy images while operating her drone as a “model aircraft”, she can sell those images to media organizations (or anybody else, for that matter) without problems. Any purchaser of those images could use them for any purpose without fear of repercussions at the FAA.

But if that same hobbyist gets it into her head that she can make some cash by seeking out newsworthy footage with her drone, then that hobbyist would no longer be operating a “model aircraft”, and FAA authority would be required.

As Berl Brechner, a pilot, former broadcaster and mastermind behind NewsDrones (a website focusing on the use of drones in newsgathering), observes, this can lead to odd scenarios. (Berl, an FHH client, has written extensively about aviation matters and FAA regulation. This post is based on an item Berl wrote for NewsDrones. BTW – Berl’s site provides a host of useful resources for anyone looking for information about the FAA’s drone-related activities.)

Suppose, for instance, that there’s a major house fire. Three neighbors happen to be drone hobbyists. Each launches his drone, takes pictures and video of the dramatic fire-fighting efforts, and offers those to media organizations. Legal? It depends.

Neighbor #1 is a pure hobbyist who has never used his drone for anything but taking pretty pictures. The notion of selling the fire-fighting shots occurs to him only after he has taken them. Under those circumstances he can sell them, no problem.

Neighbor #2, by contrast, has a history of selling his dramatic drone shots to various folks, including TV stations, newspapers, etc. When he launches his drone and sends it to the fire, he’s already figuring out how he’s going to approach potential buyers and how much he’s going to ask for his images. In the FAA’s view, he is not operating a “model aircraft”, but rather is using it “for business purposes” – and therefore needs FAA authorization.

And Neighbor #3 is like Neighbor #1, except he also happens to be an account executive at a local TV station. Even if he has absolutely no intention of cashing in on his images, and even if his employer doesn’t pay him for them, his employer may not use his images because he is “affiliated with that media outlet”.

And an additional consideration: if the media organization itself did not take the images (directly or, presumably, indirectly), it can buy and use them even if it turns out that the drone operator needed, but didn’t have, FAA authorization. That is, a media organization could purchase the handiwork of the hobbyists in either Example #1 or #2, above. In the words of the FAA memo,

[t]he FAA does not regulate whether a third party not involved in the operation of an aircraft-manned or unmanned-can receive pictures, videos, or other information that was gathered using that aircraft, or how that third party can use those pictures, videos, or other information.

The FAA’s policy seems oddly mis-focused. It doesn’t discourage drone use near newsmaking events, because pure hobbyists can operate there to their hearts’ content. And since it’s based on the supposed intent of the drone operator, it threatens to embroil the FAA in cumbersome and difficult-to-prove questions of intent: how, after all, is the FAA going to be able to determine whether the drone operator really intended to market his or her images before launching, or whether that thought occurred only after the images had been obtained. And what happens if the operator, having launched without a thought of marketing the images, realizes mid-flight that maybe, just maybe, somebody might be interested in paying for them?

Perhaps most troubling, where does the FAA get off singling out media organizations – or anyone affiliated with them – as requiring government permission? Doesn’t that raise First Amendment concerns? (Brechner certainly thinks so.) And why would the FAA want to discourage professional newsgathering organizations – who presumably have experience and professional standards – while encouraging amateurs whose conduct may not be governed by such considerations? On that point, Brechner expresses concern about a “host of new drone-video ambulance chasers (who will say they just happened to be at the scene).”

Of course, the FAA is still pondering its own formal rulemaking proceeding announced last February. For now, though, a media organization may use drone-obtained images, but only if organization (a) has FAA authorization or (b) did not itself take the images.