WASHINGTON–Drone technology “has moved forward so quickly that what used to be considered toys are now tools,” said Lisa Ellman, a partner in the law firm of Hogan Lovells, and recognized as one of the "world's foremost authorities on drones and law." She addressed attendees on day two of the National Drone Show about the rise of drones in media production.

“[Drones] can film movies, provide security, respond to disasters and even entertain a crowd. I was actually just down in Orlando where Disney just launched its fireworks drone show.”

For journalists and newsgatherers in small markets, drones can provide aerial coverage for stations that otherwise can’t afford a helicopter. For larger markets they provide huge public safety benefits. And it’s the consumer who wins through better information, received more quickly with incredible, engaging images, she said.

What has really caught the attention of policy makers is the economic potential for the drone industry and its ability to bring jobs here to the United States. Estimates vary on total drone use, Ellman said, but a lot of big numbers are being tossed around. “A recent Pricewaterhouse Coopers report estimated that the global value of drone-powered solutions would be over $127 billion.”

Even given all the economic benefits to the use of drones, policy makers are focused on the safety, privacy and security implications for drones.

EDUCATING POLICY MAKERS

“It’s been a very exciting time for this industry, but it’s also been a time of education and educating policy makers. The technology can move right along, but if we don’t have the right policies in place we’re not going to be able to properly enable it," Ellman said. “The U.S. has, frankly, struggled a little bit responding to this growth in the emergence of this technology. Japan, the United Kingdom, Australia, New Zealand and China are way ahead of us in terms of allowances and regulations. But we’ve made substantial progress and [educating policy makers] is where we need to play a critical role.”

In 2012 Congress mandated that we incorporate drones into our national airspace. The FAA had been working on this for many years, but the rest of the federal government began to pay attention at that point.

“How do we balance the economic opportunities of this amazing emerging technology with national security and safe airspace operations? How can we do that safely and securely?”

There’s been a lot of activity, not just at the FAA, but across the federal government concentrated on moving drone innovation forward. On August 2, the White House Office of Science and Technology Policy (OSTP) hosted a symposium centered on policy on drones, bringing public agencies and private industry to the table to discuss drone innovation and how they can tackle policy issues together. While there is uncertainty ahead, it is hoped that the Trump administration will keep this momentum moving forward.

THE PUBLIC'S UNDERSTANDING OF POLICY 

Along with federal regulations, drone users must pay attention to state and local ordinances as well. State laws generally focus on privacy issues because drones have captured the imagination of the American public. Over the last few years there have been hundreds of state and local bills implemented that would limit drone use in communities. In 2015, 45 states considered 168 pieces of drone regulatory legislation. In 2016, those numbers so far are 38 states and 100 pieces of legislation.

A recent poll asked Americans whether they were concerned with privacy or safety with the use of drones. The poll showed that 59 percent were concerned about privacy issues, while safety was an issue for 40 percent of the participants.

The FAA is just now becoming educated about drone technology. Under federal aviation regulations, drones are considered aircraft so all aviation regulations apply, which has created a lot of bureaucratic hoops to jump through in order to be able to operate.

Drone users fall into three categories: the hobbyist (flying only for recreational purposes), the public agency or entity and the civil user, which includes commercial use. The regulations you have to follow depend on which category you fall under. If you are a civil/commercial user who plans to sell or make money on your drone footage you must follow FAA regulation Part 107, which governs civil use of drones with regards to registration, licensing and drone usage. (See www.faa.gov for more information.)

A number of broadcasters have asked Ellman about whether or not it is legal to use photos or footage in their news broadcasts that originated from a hobbyist. A ruling by the FAA is based on the “original intent” of the hobbyist. If he or she took the footage without the intent to make money on it, then the usage is permitted.

While hobbyists do have a number of rules to follow, the rules for commercial users get more complicated. The new Small UAS Rule went into effect on Aug. 29. See the Summary of Small Unmanned Aircraft Rule (Part 107).

Just before the new rules went into effect the Office of Information and Regulatory Affairs at the White House, OSTP and Office of Management and Budget heard from stakeholders that they want the opportunity to prove the safety case. They want the ability to fly beyond the visual line of sight and fly over people if they can prove they have an effective level of safety. The case was made to the FAA and in the final release of the rule a Part 107 Waiver process was included. Operating from a moving vehicle or flying over people would be an example for a waiver request, and many requests for waivers have involved night-time flying.

An obvious concern for many in the media production community is having the ability to fly over people, which is not permitted even if the people have consented to the operation. This limits flying over urban areas, directly affecting newsgatherers.

SOME GRAY AREAS 

A new ruling that was recently issued concerning the Section 333 exemption will be news to most drone users. Section 333 of the FAA Modernization and Reform Act of 2012 grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a UAS to operate safely in the National Airspace System. About 5,000 Section 333 exemptions have been granted since September of 2014, some for closed-set filming. In a closed-set environment all participants (actors, extras, film crew, etc.) have already signed consent forms to be filmed.

According to Ellman, with no announcement, the FAA just revoked that exemption ability. On Nov. 14 the FAA posted a blanket amendment that essentially applies to all 333 exemptions already approved. Most exemptions can be implemented now through Part 107. “The only people really concerned about the 333 exemption at this point are those operating under closed-set situations,” said Ellman. “This appears to be, symbolically, a step backwards.”

Ellman touched on privacy issues with respect to private property and surveillance. A recent University of Oklahoma study came up with some interesting results. Drone cameras seem to garner a higher percentage of opposition over ground cameras when it comes to surveillance. When monitoring streets and businesses, 24 percent opposed ground cameras while 46 percent opposed drone usage. When asked about enforcing traffic laws, 34 percent opposed ground cameras, compared to 53 percent opposed to drones.

The last issue concerning privacy that Ellman discussed was related to airspace ownership. Airspace ownership is currently being considered down in Kentucky. The case of a citizen who shot a drone out of the sky over his property is raising some interesting points.

“[An important way] we can help move this industry forward is related to the issue of who owns the airspace over private property.” The precedent set was the 1946 case of the United States Government v. Causby, where the government flew a variety of aircraft as low as 83 feet over a family’s chicken farm, killing the chickens. The United States Supreme Court ruled that the aircraft was trespassing since it was flying within the immediate reaches of the soil.

In closing Ellman noted that the FAA does not have the resources to enforce all the regulations in place, but they will with respect to safety. For the most part they rely on the state and local governments enforce local regulations.

WASHINGTON—On Dec. 8, Lisa Ellman, a partner in the Washington-based law firm of Hogan Lovells, and recognized asas one of the “world’s foremost authorities on drones and law,” will speak about the legal implications of the use of unmanned aerial systems in media production at the Government Video Expo/National Drone Show at the Walter E. Washington Convention Center in Washington, D.C. In advance of her talk, “Drone Fever: UAS Issues for Media Production,” TV Technology recently spoke with Ellman about the regulations that are still being developed around this emerging technology.

TV TECHNOLOGY: What are some potential drone policy topics you will be speaking about?

LISA ELLMAN: I’ll be discussing “Polivation,” a term I've coined for the process of connecting innovators with policymakers to more quickly bring about the benefits of drones in a safe, secure way that gains the public's trust.

I’ll also talk about the Commercial Drone Alliance, a non-profit a colleague and I started with other industry players to more quickly bring drone issues from industry and small business to the attention of policymakers in Washington. 

Also on the agenda will be an examination of the general benefits of commercial drones for various businesses that are paving the way for broader UAS airspace integration.

TVT:Drawing from your expertise, what areas within the use of drones for private and commercial purposes need to be addressed by regulators? What areas do not need be addressed?

LE:Challenges and government-imposed roadblocks remain to be cleared before the full integration of UAS into our National Airspace. Congress can play an important role in clearing these roadblocks, whether through next year’s FAA re-authorization process or by other means. The following items are critical if we expect to keep America competitive in the global UAS industry:

Waiver Process. It is critical that the process for obtaining waivers under Part 107 is streamlined, clear and expeditious. The Part 107 waiver itself must also provide meaningful relief for companies operating UAS in the real world.

Additional Rulemakings. We need additional rules that broadly authorize safe flights above people, beyond visual line of sight and at night—and we need to see these rules developed quickly.

Enhanced Government-Industry Collaboration. Innovators and policymakers must work more closely together—a process I have called “polivation”—to benefit everyone. 

Whole-of-Government Approach to Integration. We must support a “whole-of-government” approach to enable the broader infrastructure for this industry to succeed. This includes support for the efforts of NASA, FCC and others.

Industry Diversity. Finally, Congress must continue to support Small Business Administration programs that assist women and minority-owned small businesses. Two colleagues and I recently founded the Women of Commercial Drones organization to bring gender diversity to the growing UAS industry. Continued support for programs like these is critical.

TVT:In your opinion, where do you see the drone industry going within the next 5 years?

LE: If we tackle these issues properly, we will soon regard commercial UAS as we do the phones we carry and rely on every day: tools that make us more efficient, productive, safer and more connected.

TVT:What regulatory issues distinguish media use of drones from non-commercial use of drones?

LE: Under current law, drone users generally fall into three broad categories: hobbyists, public entities, and “civil use”—which includes anything non-recreational or commercial. Media use of drones falls into the “civil use” category.

In our country hobbyist use of drones is generally permitted so long as they are flown strictly for recreational use, under 400 feet, more than five miles from an airport, and don’t endanger the public.

Civil use of drones, including media use of drones, is now broadly authorized under Part 107 of the Federal Aviation Regulations, which went into effect in August of this year. UAS operations that comply with the rule’s flight restrictions—including generally traveling no higher than 400 feet, within visual line of sight, away from people and during daytime hours—can now benefit newsgatherers in many ways.

Lisa Ellman has held a variety of positions at top levels of the Executive branch at the White House and the U.S. Department of Justice (DOJ). Photo Credit Pete Souza.

TVT:In terms of privacy issues, are existing laws adequate or does more need to be done in terms of protecting a person’s privacy from drones?

LE: While the federal government has been most focused on regulating the safety aspects of drone flight, the American public has been most concerned about privacy issues. There are a range of technology-neutral laws and rules— such as trespass, nuisance, or “Peeping Tom” statutes—that protect us from all kinds of privacy-invading activity, including with a drone.

But given the public’s interest in this issue, in May of this year industry and nonprofits came together and agreed on a set of voluntary “best practices” for protecting privacy while operating commercial and private drones. This consensus came as part of a process that was facilitated by the National Telecommunications and Information Administration at the Department of Commerce.

Importantly, the best practices document recognizes the First Amendment and the best practices do not apply to newsgathering. Newsgatherers and news reporting organizations are expected to operate under the ethics, rules and standards of their organization, and according to existing federal and state laws.

TVT:How do you think the use of drones will improve media coverage of live breaking events?

LE: Drones can get unique and amazing aerial coverage that is impossible to see any other way. But they also make expensive tasks cheaper. For broadcasters, sending up a drone to get aerial shots is much more cost-effective than sending up a helicopter. And for local news broadcasters who cannot afford manned helicopters at all, now they are able to obtain aerial footage of major news events, helping Americans receive the news they want and need.

The key regulatory barrier remaining here is that we need to get newsgatherers the ability to fly over people, as news generally happens where people are. I recently assisted CNN to get the first-of-its-kind waiver from the new Part 107 to have the ability to fly over people. This ability is critical for newsgatherers as they start using drones to cover live breaking news events. 

TVT:Is the type of training required for drone use adequate or does more need to be done to train users?

LE:Under Part 107, training is actually not required. Pilots just have to take a knowledge test, pay a fee, and undergo a background check, and get certificated. In just the first few weeks since Part 107 went into effect, 6,768 Remote Pilot Certificate Exams were taken, with a “pass” rate of 88 percent, and 14,909 applications have been submitted.

For the low-risk flights allowed by Part 107, passing the test is likely adequate. As more advanced flights are permitted, I expect FAA to require some training.

It’s also good business practice generally for businesses adopting drone operations to require some training of their employees. Businesses have their own incentives beyond the regulatory framework to fly in a way that is safe.

TVT:What’s the next deadline/benchmark for drone use? In other words, what type of action will we see from the FAA that will most affect the use of drones?

LE: Part 107 going into effect was a significant step forward for the commercial drone industry in the United States, but to truly unleash the potential for the industry, we need to move beyond the rule. In the short term, we need additional rules that broadly authorize safe flights above people, beyond visual line of sight and at night. Otherwise, critical UAS operations that often must occur in these conditions, such as newsgathering, will be stalled.

For example, it is common sense that very small UAS (“micro-UAS”) should be allowed to fly permissively; right now, a two pound UAS is treated the same as a 55-pound UAS. Just this incremental change would enable all sorts of beneficial applications, including in our industry.

I think by the end of the year, we will see a proposed rule to allow drone operations over people. It will be critical that the newsgathering community is vocal with their public comments to this proposed rule.

TVT:Is it just the FAA that regulates the use of drones? Are there other federal or state agencies that are involved and if not, should there be?

LE: Beyond what’s happening at FAA, at the federal level we have seen significant interest from the Executive Branch in keeping the commercial UAS adoption momentum going.

The White House held its first workshop on commercial UAS recently, where a broad range of commitments were made to move the industry forward. Amongst other commitments, $35 million in research funding was announced by the National Science Foundation over the next five years to accelerate the understanding of how to intelligently and effectively design, control, and apply UAS to beneficial applications.

I mentioned previously the role of NTIA at the Department of Commerce in facilitating a multi-stakeholder process to craft voluntary best practices around privacy, transparency and accountability related to private and commercial use of drones.

And NASA has focused on moving its Unmanned Aircraft Traffic Management efforts forward, a critical component toward designing “highways in the sky.”

FCC will also be engaged on the spectrum issues.

States and localities have also been eager to regulate drones, with almost every state proposing and many passing legislation that would limit drone use in some way. It’s important to keep a close eye on this local legislation as many of it could be preempted by the FAA’s new rule.

To register for GV Expo/National Drone Show, visit www.gvexpo.com/the-drone-show/.