The FAA Tells the Media It Can't Use Drones For Journalism Without Permission
News companies say drone journalism is a protected First Amendment right.
A lawyer with the Federal Aviation Administration is trying to ban news organizations from using drones for news gathering purposes unless they have specific permission from the agency, according to a new legal memo.
The memo, titled "Media Use of UAS" suggests that news companies can use drone footage shot by third party pilots whenever a story warrants it, but that drone-shot videos by the news companies themselves constitutes a "business purpose" and would be illegal under the FAA Modernization Act of 2012, a law passed by Congress that directed the FAA to legalize and regulate commercial drones.
Rather than regulating drones, however, the FAA has used the law as an attempt to make business use of drones illegal. To be fair, the FAA has, in the last few months, quickly attempted to actually enact some real regulations, but they're not here yet.
"Because the use of an unmanned aircraft by a media entity to gather news would be in furtherance of that entity's business, the operations would fail the 'hobby or recreation' test of [the FAA Modernization Act of 2012]," Dean Griffith, an FAA attorney wrote. "Accordingly, UAS operations by a media entity for news gathering purposes could not be conducted as model aircraft and would need to be authorized by the FAA."
Nowhere in the memo does Griffith assess whether or not the FAA has the authority to prevent the media from using a drone under the First Amendment. Last summer, a coalition of 15 major media companies, including the New York Times, Associated Press, and Washington Post wrote a legal brief suggesting that drone journalism is a First Amendment right.
"As a constitutionally protected activity, unquestionably the use of UAS for news gathering should receive greater protections than those afforded to hobbyists and commercial users," they wrote. "The FAA has failed entirely to take [the] First Amendment into account in regulating the use of UAS."
Whether or not the memo is even legally enforceable for any business is another question. Many drone companies have so-called "333 Exemptions" to the 2012 law, a status that allows them to bypass the regulatory process and receive permission from the FAA to fly. Many companies have opted to not request an exemption, suggesting that the FAA's lack of real regulations means they don't need one to fly legally.
Exemption or not, the legal memo does suggest that the FAA cares very much about the "purpose" of a news gathering flight. According to the FAA, someone is allowed to gather news and then give it away to the media, for instance, but they aren't allowed to purposefully take video of a newsworthy event and then sell it.
A whole section of the memo considers the question of what happens if a regular drone hobbyist incidentally happens to take footage of a newsworthy event and eventually wants to sell it:
"Whether an individual taking pictures or videos or gathering other information using a model aircraft under the section 336 carve-out could later sell those pictures, videos, or other information would depend on the person's original intentions in conducting the operation. If the individual takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required."
The FAA is playing around here with constitutional issues, which is why it must tread lightly. But all of this seems more complicated and than just saying something like, "fly safe out there and you'll be fine."