FAA’s Drone Rules Offer Hope—but Some Limits—on Journalists

 - By Alicia Wagner Calzada, Haynes and Boone, LLP

In mid-February, the FAA announced its long-awaited proposed rules for the regulation of small unmanned aerial systems (sUAS or sUAVs), commonly referred to as drones. The proposed rules were far less restrictive than some possibilities that had been tossed about by speculators, bloggers, and behind the scenes, and initial reactions from journalism advocates were cautiously optimistic. But the proposal would provide limits, and the rules do not go into effect right away, so it will still be some time before Texas journalists will be able to operate unmanned aircraft with the blessing of the FAA.

Who will be able to fly?

In order to legally operate sUAS, the operators, who must be 17 or older,  would be required to pass an initial aeronautical knowledge test at an FAA-approved center; be vetted by the Transportation Security Administration; obtain an sUAS operator certificate which never expires, unless revoked; and pass a recurrent test every 24 months. An individual with a private pilot's license will still need to obtain an sUAS operator certificate to pilot a UAS. Once certified, the operator can pilot any type of UAS for any commercial purpose, “so long as you are flying within the parameters of the rule, line-of-sight, etc.” said FAA Administrator Michael Huerta. The FAA has long considered news photography to be a “commercial” enterprise for the purposes of its rules on sUAS. People who are only using sUAS for recreational purposes would not be required to get certification from the FAA.

When and where will drones be permitted?

The FAA proposes that sUAS flights will only be permitted during daylight hours, cannot go more than 500 feet above ground level, and cannot be operated “over any persons who are not directly involved in the operation.” The restriction on operating above persons could interfere with journalists who would otherwise use sUAS to document news events that involve large (or small) crowds, from spot news to protests, to festivals. While operation of sUAS from boats would be allowed, they could not be operated from other moving vehicles or airplanes.

The rules will require that the operator is able to see the craft at all times (called the visual-line-of-sight requirement), unaided by anything other than standard glasses and contact lenses. However, the operator can use the help of a “visual observer”. While the operator would still have to be capable of seeing the craft, the visual observer could be used to maintain a constant line-of-sight of the sUAS, allowing the operator more flexibility. Remote cameras would not satisfy the visual-line-of-sight requirement but could be used as long as the sUAS were still within the line of sight of the operator or observer.

The proposed rules would limit sUAS to Class G airspace, which is typically “uncontrolled” airspace for which no communication with Air Traffic Control is required. UAS would also be allowed in Class B, C, D, and E airspace with permission from local Air Traffic Control.

Operators will be required to conduct a pre-flight inspection to ensure that the small UAS is safe for operation, and must report any accidents which result in injury or property damage to the FAA.

In 2013, the Texas legislature passed a law that makes it illegal to take images with a UAS “for surveillance purposes” without the consent of the owner of property captured in the image. The FAA proposed rules do not address how the FAA expects that Texas law—and a patchwork of other state laws regulating sUAS—would be affected by the FAA’s rules, or whether state laws would be pre-empted.

What kind of UAS will be allowed?

The sUAS that are addressed in the proposed rules must weigh under 55 lbs. No airworthiness certificate would be required, but the craft would have to be in safe operating condition and would be required to have certain aircraft markings.

The proposed rules also noted that the FAA is considering a “micro UAS” category for UAS under 4.4 pounds. Micro UAS could be operated over people not involved in the operation and FAA would not require operators to pass a test to become certified to operate a micro UAS. To qualify, micro UAS would have to be made of material that would break apart or yield if there was a collision and would be limited to 400 feet above ground level. The DJI Phantom, a popular UAS among journalists, would likely qualify as a micro UAS.

When do the rules go into effect?

The FAA will be accepting public comments on the proposed rules until at least until April 24, 2015. The guidelines may change after public comment and hearings and there may be revised proposals as a part of the rulemaking process. The rules won’t go into effect until after the rulemaking period is over. Until then, the FAA considers its current onerous guidelines, which essentially ban drone use by journalists, to be the rule of law.

The entire proposed rules can be viewed at this link: http://www.gpo.gov/fdsys/pkg/FR-2015-02-23/pdf/2015-03544.pdf