Wednesday, May 20th, 2015
Does a Memorandum by the Federal Aviation Administration on May 5 represent a flip-flop on what had been understood to be commercial prohibitions to drone use, a back-door attack on the First Amendment, or reasonable policy in line with traditional journalistic practice?
The Memorandum, signed off by the FAA’s Mark W. Bury, Assistant Chief Counsel for Regulations, is directed to the FAA’s Unmanned Aircraft Integration Office, and seeks to set policy for use of drones for “newsgathering.” The memo poses, and answers, three questions:
1. Can members of the media use Unmanned Aircraft Systems (UAS) for newsgathering?
2. Can media use pictures, video, or other information collected by a person using an unmanned aircraft?
3. Does a person who sells images collected by his/her unmanned aircraft need authorization for that flight operation?
It approaches the questions with the assumption that neither the media companies nor any of the drone owners presently hold any of the limited authorizations or exemptions from the FAA that can authorize certain commercial drone uses. The memo uses six lengthy paragraphs to answer these questions. The short answers are:
1. No, media cannot routinely use unmanned aircraft for newsgathering, unless they have specific authorization from the FAA.
2. Yes, a communications medium can use pictures, so long as they get them “from a person not affiliated with that media outlet.” And, additionally, the FAA says media may pay for such pictures.
3. Depends. If the person operating the drone gets a picture worth using by chance, while operating their drone under guidelines that permit drone uses for hobby or recreational purposes, then a use by media is OK. If they’ve intentionally set off to obtain a picture or video to sell or distribute, then they’ve violated the prohibition against unauthorized commercial operations of drones.
So, here are three scenarios:
A house on Main Street is consumed in flame. Sarah, who flies a drone from which she’s taken some pretty pictures and posted them on Instagram, happens to have her drone up in the air at the time. She takes video of the burning house, firefighters streaming water as they fight the conflagration. She sees what she’s got, and then decides to offer it to WZYX-TV. They pay her $100 for the video. It would seem that this all fits in with the May 5 FAA memo as an acceptable sale of video from a drone.
Joe, who also happens to have a small drone with a camera, hears fire trucks responding to a location around the corner. Thinking this might be an opportunity to help him pay for his drone, he rushes out of his house with his drone, sees the house in flames, launches his machine and gets some video. He sells the video to WZYX-TV. In this case, because he has intentionally done a newsgathering flight, he would not have complied with the guidance in this memo, and thus would be in violation of FAA rules.
And finally, Robert, who also owns a drone, happens by the house aflame as he is headed for work. He’s an account executive at WZYX. He pulls his drone from the trunk of his car, launches it, and shoots video. When he gets to work he tells the station’s News Director what he’s got, a news editor pulls the video off Robert’s drone’s mini-SD card, and the station puts it on the noon newscast. Robert isn’t paid. But because Robert is “affiliated with that media outlet”, it appears the memo says his pictures or video should not have been used, and he has violated FAA rules.
Of particular interest is that this interpretive Memorandum seems to go out of its way make clear that it is the drone owner/operator who might be sanctioned, not the media company. Not regulated by the FAA, the memo says, is “whether a third-party not involved in the operation of an aircraft…. can receive pictures, videos, or other information.” Even more definitively, the Memo continues, “A media entity that does not have operational control of the UAS and is otherwise not involved in its operation falls outside the FAA’s oversight. Whether a media entity pays for or obtains the pictures, videos, or other information for free would not affect this analysis.”
So, in short, as explained in this Memo, if an individual intends to shoot pictures or videos with a UAS to be sold to media outlet, that would “be in furtherance of that person’s business…. would fail the ‘hobby or recreation’ test of section 336(a) and would need to be authorized by the FAA.” And if you’re a media entity, gathering news by drone “would be in furtherance of that entity’s business, and would fail the ‘hobby or recreation test’….” So FAA authorization would be required.
And how is memo being viewed, and what will its impact be? Well, it certainly seems to be a flip-flop. Prior to this, most interpretations were that unless a drone operator held a specific exemption or authorization, any commercial activity occurring with drones seemed to be forbidden, and certainly sale of a picture or video from a drone, no matter the circumstance under which it was obtained, would be commercial. Now a new door for video and image sales appears to have opened. One commercial drone operator who worked for more than a year to get his FAA exemption, expressed a degree of shock that now a recreational/hobbyist drone operator, not subject to the stringent operational limits, guidelines, safety procedures, and oversight that he is, may be out selling pictures and video.
And why do some see this as a back door attack on the First Amendment? A news event is happening, and a hobbyist happens to get drone video, and can sell it. But a media company cannot professionally cover that story with its own drone, or with a contract drone operator? Why can a hobbyist by chance shoot news, but a news organization cannot? Is media now being treated discriminatorily, precluded by FAA fiat from doing the job it wishes to do? And where did the FAA get that authority?
And finally, since media companies have a long history of using and buying images from people who happen to get footage of newsworthy events, what’s different here? Lots, since, “intent” has never before been a measure of whether that use is acceptable or not. Also, while the newspaper or TV station might not have been there to get the shot, and gladly will use the picture or video from a bystander, the media outlet has never been told, before this, that it may not shoot such video itself.
This seven paragraph memo offering new interpretations regarding media use of drone-gathered imagery offers the possibility that there will be host of new drone-video ambulance chasers (who will say they just happened to be at the scene), and certainly seems to free up media entities to grab any drone footage from any source, and use it with impunity. For those trying to create professionalism, ethics, safety, and equity in the use of drones for newsgathering, there is concern that this memo, rather than settle issues, may create a new round of confusion and harm.
Berl Brechner, May 20, 2015