Drone test sites dominate news, but other factors will have greater impact on drone journalism in the US

Group shot of Team Black Sheep, of which Raphael Pirker is a member, by Wired.co.uk.

Group shot of Team Black Sheep, of which Raphael Pirker is a member, by Wired.co.uk.

The Federal Aviation Administration of the United States yesterday announced that it had selected six test site operators to work on integrating unmanned aircraft systems, commonly known as drones, into the nation’s airspace.

As important as these test sites are to making sure that large drones can navigate safely alongside manned aircraft in the United States, it probably won’t affect media or drone journalism operations in the near future.

Rather, since journalists and news reporters are more likely to use small aircraft weighing under 55 pounds, and are not likely to fly beyond visual range of the operator, or above 400 feet, the rules governing small unmanned systems (sUAS) likely will have more importance.

Along with announcing the test sites, FAA Administrator Michael Huerta said in a telephone conference that small UAS rules would come early in 2014.

Also of considerable importance to drone journalists is a court case has the potential to trump the FAA’s authority to regulate even those low-flying aircraft. In FAA v Pirker, Raphael Pirker, who became the first drone operator slapped with a fine by the FAA, claims that the FAA is only authorized to regulate “navigable airspace.”

The Federal Aviation Act gives the FAA the power to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.”

Further, navigable airspace is defined as the “minimum altitudes of flight,” which the FAA itself defines as 1,000 feet above the ground over populated areas, and 500 feet above ground over remote, unpopulated areas.

I’ve been following this case for a while, and the same day that the FAA announced drone test site operators, sUASNews posted the final response from the FAA’s lawyers. In its latest letter, the aviation authority asserts that Pirker placed others in danger, an event which the FAA is legally responsible to prevent.

“Congress expressly did not restrict the FAA's ability to regulate the operation of aircraft at any altitude to prevent collisions between aircraft with land vehicles and other airborne objects and to protect persons and property on the ground,” the FAA wrote.

Indeed, the Federal Aviation Act, which congress passed in 1958 following a midair collision over the Grand Canyon, gives the FAA the responsibility of “protecting individuals and property on the ground” and “preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”

The FAA originally issued an “Administrator’s Order of Assessment” that claimed Pirker was flew “over the University of Virginia in a careless or reckless manner so as to endanger the life or property of another.” At one point, the FAA wrote, a pedestrian had to dodge Pirker’s foam, 4.5-pound powered glider.

It’s been argued that the FAA doesn’t have the authority to regulate drones below 400, as that would interfere with the rights of property holders to have “have full enjoyment of the land.” But would it have the power to assess a $10,000 for flights it deems “reckless,” regardless of altitude?

That will be up to the National Transportation Safety Board to decide. If the NTSB decision is appealed, then the case may go to federal court.

If the courts ultimately decide that the FAA has authority over low-flying drones, that doesn’t mean the end for drone journalism in the United States. If the UAS roadmap is any indication, the rules have the potential to be quite permissive, so long as the operator keeps the drone below 400 feet, and within visual line of sight.

Journalists can accomplish a great deal of reporting and surveying with that kind of range, but someday, larger news organizations might make use of drones that go well beyond line of sight. 

For example, imagine a news station in a city deploying an unmanned helicopter from its roof, where it goes off to a far part of the city to cover a congested freeway. Or imagine a news van which parks off the side of a road, and sends a small drone several kilometers out to capture images of a train derailment in a rural area.

Such systems exist today, and they aren’t nearly as expensive as they used to be. For some time, hobbyists have been able to make drones that fly and transmit video over tens of kilometers. Those systems likely will be regulated according to the recommendations produced by drone test sites.

For most everything else, the small unmanned aircraft rules and state and local laws are going to define the regulatory limits drone journalism. That’s where the drone journalism community in the US should focus its attention.

Posted on December 31, 2013 .