Acquisition Global Viewpoint – November 2015

Drones Can Be Dangerous To Your Legal Health

Drones are easy-to-purchase and fly. They are also just as easy to cause a TV station no end of grief if the FAA rules are not followed or someone makes a mistake flying them.

Drones have become the darling child of both hobbyist and professional videographer. My first exposure to the nifty scenes a flying camera can provide came from HGTV. The overhead shots and zoom outs above pools and neighborhoods were fantastic.

But now, as aerial photography becomes more sophisticated and often less expensive, more individuals and companies getting into the business. One problem is that a few nutcases have brought into the spotlight and now the FCC is leaning toward a heavy hand on drone usage.

Live at 5 from overhead

TV stations are now getting serious about using drones to capture news clips. After all, wouldn’tyou want to have exclusive video of the cops capturing the crooks from overhead? Turns out that might be a bit more legally complicated that first thought.

Before your news department runs out and buys a $4000 toy (UAS) to capture overhead video here some important issues to consider.

Some legal issues

First, there has been a lot of noise about stations needing assistance to “register” their drone with the FAA. At least one company is already offering to help people register their drones for a fee. If you do an Internet search, that company’s name will pop up first.

But, the FAA says unmanned aircraft owners do not need to work with a “drone registration” company to help them file an application for a registration number.

Owners should wait until additional details about the forthcoming drone registration system are announced later this month before paying anyone to do the work for them.

FAA administrator Michael Huerta recently told the FAA task force to provide guidance on a streamlined unmanned aircraft registration process that will be simple and easy to complete, and which types of UAS would need to be registered and which would not.

The Task Force agreed and now is working on recommendations for a system that is similar to registering any newly purchased product with its manufacturer as well as a minimum weight for unmanned aircraft that must be registered.

Second, the FAA is conducting a beta test of an easy-to-use smartphone app called, B4UFLY. The free app helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they want to fly. A pdf of the B4UFLY training guide can be found here.

Figure 1 shows an iPhone display of the app with a location indicator of the proposed UAS flying area. Note that it identifies nearby properties and key structures.

Figure 1 shows an iPhone display of the app with a location indicator of the proposed UAS flying area. Note that it identifies nearby properties and key structures.

In Figure 2, the display shows two nearby airports and associated restricted areas along with the current location of the user.

In Figure 2, the display shows two nearby airports and associated restricted areas along with the current location of the user.

In Figure 3, the proposed flying location is within five miles of an airport. UAS operation requires advance notification of control towers and the airport operator.

In Figure 3, the proposed flying location is within five miles of an airport. UAS operation requires advance notification of control towers and the airport operator.

This limited beta test is expected to run for several months, after which the FAA plans to make a final version of B4UFLY available for the general public. The beta version of the app is for iOS devices only, but the FAA intends to release a future version for both iOS and Android devices.

Legal thoughts

Finally, I often follow blog posts by David Oxenford, of the firm Wilkinson Barker Knauer, LLP. He recently posted a summary from a paper written by an attorney with his firm, Rachel Wolkowitz. She follows the regulations about drones, more accurately called UAS (Unmanned Aerial Systems) and their use for newsgathering under current FAA rules. She offers these cautions for both current and future use in the post. The following is from that post.

The use of drones presents great opportunity, and potential risk, for newscasters. Drones can be cheaper to fly than helicopters, and potentially can get closer to the action. On the other hand, drone technology is still nascent and safer operating technologies – e.g. sense-and-avoid systems that use internal systems to find and avoid hazards – are still being developed. Federal, state, and local governments are struggling with the potential safety and privacy implications that follow from putting thousands of drones in the sky for a variety of uses.They are creating a patchwork of laws, rules, and policies that have the potential to trigger liability for broadcasters.Below, we provide a high-level discussion of some key legal considerations for operating drones for news gathering.

The FAA, as steward of our national airspace, is leading federal efforts to enable the safe operations of drones. The FAA has taken the aggressive stance that all commercial operations are illegal unless specifically authorized – and to the FAA, newscasting is a commercial activity, requiring special permission. While the FAA is developing general rules for commercial operations of small drones, it has developed a special petition procedure called a Section 333 exemption to speed approvals in the interim. On the plus side, the FAA has authorized more than a thousand operators under this Section 333 procedure. But these approvals generally contain more than two dozen conditions, such as a prohibition on operations over people, which may limit a drone’s effectiveness for many types of news coverage.

In some cases, approvals have been granted to news organizations and, in other cases, approvals have been granted to parties who offer their services to news organizations. As a result, even if a newscaster is not itself authorized to operate a drone, the newscaster may be able to find some other company authorized to operate drones for commercial purposes in their area, and be able to obtain news footage from such a licensed operator.

Current FAA policy only extends liability to operators themselves, and the FAA has expressly disclaimed authority over newscasters that may buy footage from contractors or other third-party operators. That being said, stations may be vulnerable to legal claims under traditional tort law if their agent drops a drone on a bystander or otherwise captures footage of private events in violation of state or local law (as noted below).

A different federal agency, the National Telecommunications and Information Administration, is working with industry and consumer advocates to develop best practices for respecting privacy during commercial drone operations. Newscasters may wish to operate cautiously to avoid privacy issues, and to adopt the industry best practices once they are formalized, probably in a year or two.

States and localities are also formulating their responses to the soon-to-be drone-filled skies. Already in 2015, 45 states considered legislation and about half have passed legislation or resolutions proposing to study or restrict UAS operations. For example, in Michigan, it is unlawful to use a drone to interfere or harass an individual who is hunting or take game using a drone. In addition, current laws related to property damage, privacy/publicity, and employer liability may be applied to drone operations through the courts.

For example, it is likely that state law applicable to news operations in the field – think traffic accidents involving news vans or liability incurred by news helicopters – are applicable to drone operations.So check state laws for limitations on the use of drones before you authorize their use.

Finally, Members of Congress are also introducing bills at a rate of one every few months that would alternately speed and retard the commercial use of drones. While none of the current bills are expected to be passed, they may influence decisions made at the various federal agencies considering drone policy, or inspire states to take their own action.

In summary, there is reason to be cautious and do your research when using drones for newsgathering, even for B-roll.

Think before you fly

So there you have it. While drones are going to be the hot item on most kid’s Christmas list, stations may want to leave it off their Santa list. Consider the costs, both hardware and legal before suggesting to management to buy one. Wouldn’t you hate to be the one having to explain how that $4,000 UAS ended up crashing into a house fire, or accidentally recorded some overly amorous couple in their back yard.

Let us know what you think…

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