WASHINGTON—Last month the Department of Transportation’s Federal Aviation Administration finalized the first operational rules for routine commercial use of small unmanned aircraft systems; otherwise known as UAS or “drones.” The regulations were created to ensure that commercial users—including news organizations and journalists—would have set guidelines on use and operation. The new rules are set to go in place later this summer.
“We fully expect the rules will go into effect in August, 60 days after publication of the rule in the Federal Register,” said Alison Duquette, spokesperson for the FAA.
The newly released Part 107 of the Federal Aviation Regulations should now clarify how the media are allowed to operate drones and make it easier for smaller news organizations and production companies to utilize these aircraft systems. The newly released Part 107 of the Federal Aviation Regulations (FAR) should now clarify how media are allowed to operate drones, and make it easier for smaller news organizations and production companies to utilize these aircraft systems.
“It is going to be easier than what existed with the previous rules,” said Robert Kirk, partner with Wilkinson, Baker, Knauer, LLP. “When people looked at the rules, they might have seen the restrictions that are placed on operators, but actually these new rules will make it a lot easier now.”
Previously, to use a drone in video production meant obtaining a 333 exemption to the FAA Modernization and Reform Act of 2012 (FMRA), which had granted the Secretary of Transportation the authority to determine whether an airworthiness certificate was required for a UAS to operate safely in the National Airspace System. Part 107 of the FAR removed the need for this exemption, and furthermore reduced restrictions on how drones could be operated and more importantly, by whom.
“With the 333 exemption you had to be a licensed manned aircraft pilot,” explained Matt Waite, professor of journalism at the University of Nebraska and founder of the school’s Drone Journalism Lab. “This meant that to use a drone, a news organization had to be well-funded and/or be a large market station that owned a helicopter and already employed a pilot.”
Under the new rule the drone pilot need only be at least 16 years of age, and have a remote pilot certificate with a small UAS rating, or be directly supervised by someone with such a certificate.
THE SKY ABOVE
The new rules include a number of specifications that include operational limitations; and the FAA has mandated that the UAS must weigh less than 55 pounds and the user must have a visual line-of-sight (VLOS). Under Part 107, one of the major changes has been that the ceiling for drones has been increased from 200 feet above ground to 400 feet. A more significant update to the rules is how drones can be used in respect to people on the ground.
“Under the old rules you couldn’t operate within 500 feet of people,” Kirk said. “The new rules specify that a UAS can’t operate over people directly. This meant that previously, to cover certain events, a news organization might have had to rent the roof of a garage to get this buffer—but now you can hover over a news vehicle or much smaller roped-off area.”
Matt Waite, professor of journalism at the University of Nebraska and founder of the school’s Drone Journalism Lab. However, exactly what the term “not directly over people” means is still open for debate, but one point that is clear is that this only means those not directly involved in a production. In other words, a news crew or film crew can be under the drone.
“You can fly a UAS over people that are involved in the activity, such as a news crew or when filming on a production set for example,” said Joanna Simon, aviation attorney with Morrison Foerster in Washington, D.C. “Everyone on set would be considered involved with a production.”
In sporting events the situation could be a bit more complicated, at least for now. Drones certainly couldn’t fly over spectators while even the field could remain a “no-fly” zone, but the peripheral areas that aren’t populated could be wide open for drone use.
“This means you probably won’t see drones being used in college football games anytime soon, as the stadium completely encircles the field,” noted Waite. “However, already in Australia drones can fly over the field in Australian Rules Football. In America there are other parts of the sports fields— especially in youth sports that are generally open that would be areas to operate a drone. I can see drones being used there in the not too distant future.”
Efforts would still need to be made to notify people on the ground that an area is restricted for drone use to ensure that people don’t walk under the drone’s flight area.
“Since you can’t fly over people directly this means that production teams will have to be creative,” said Waite. “You’re also going to be smart and find a legal location, but quite frankly you’re going to want to make sure you’ve photographed and documented what you’ve done to cordon off the area. So when the flight standards office asks you what efforts you made to ensure you didn’t fly over people you can show what you did.”
NIGHT AND DAY
One other significant change with the Part 107 update addresses the time of day that a UAS can now be used. Under the previous rules a drone could only be operated in “daylight” hours, which does not include sunrise or sunset—the time of day beloved by photographers as the “golden hour.” Under the new regulations drones cannot be used at night, at least not without a special waiver.
“This might seem like a minor issue, but to the FAA it isn’t,” added Waite. “Civil aviation is something that journalists have a hard time understanding, because it is highly regulated and there is frankly a rule for everything.”
The new Part 107 rules now allow for operation not only when the sun is overhead but what is essentially termed “civil twilight,” which to the FAA is a very specific time of day. To operate one hour before or after “daylight,” a drone will require lights or other illumination. “Under the new rules you can now fly during civil twilight, but you need the lights,” explained Kirk. “Previously those operations were prohibited entirely.”
Despite New UAS Rules, Hurdles Remain
UAS—much like GPS technology—were developed for the military and adapted for civilian use, so the commercial market has benefitted from reduced R&D costs associated with getting a product off the ground, which in this case was quite literally a large effort. At the same time, onboard equipment has greatly improved, thanks to development of low-cost durable cameras and sensors.
The new Part 107 rules could pave the way for more stations to begin utilizing the drones, and normally that could drive up prices. However, the large influx of hobbyist drones on the market has actually helped lower prices, even as the market for these devices has increased.
“The cost of producing drones has been steadily going down,” said Sean Windle, procurement research analyst at industry research firm IBIS World, Inc. “At the same time the prices of peripherals such as the cameras and sensors have also fallen. The price competition will continue to heat up as more suppliers enter the expanding market.”
Even with these falling costs, many stations may still take a wait and see approach— at least in the near future, due to some of the concerns over interpretation of some of the new rules.
In fact, a recent RTDNA survey found only a few stations have expressed interest in using drones, with fewer than 10 percent having actual plans to utilize these in news reporting.
“With the new regulations coming into play, that interest level will probably grow,” admitted Derrick Hinds, spokesperson for the Radio Television Digital News Association. But he cautiously added, “we’re also watching state legislatures and even some city councils around the country that have passed or may consider passing various other drone rules beyond the federal regulations.”
Those local rules could be the other sticking point that could keep stations from immediately taking to the sky.
“Before simply taking off you’re going to have to check to see if there are local or state laws that Part 107 doesn’t preempt,” said Joanna Simon, aviation attorney with Morrison Foerster in Washington, D.C. “One aspect to understand is that Part 107 doesn’t contain an express preemption over local regulations.”
Currently anything having to do with the air means that federal laws will preempt local and state laws, as it is the federal government’s responsibility to ensure that the airspace is safe—but since Part 107 doesn’t contain such express preemption, it could mean that those local laws will need to be followed. These laws and regulations may not be directly related to aircraft use however.
“These can include laws on privacy, and what you can or can’t capture with a drone,” explained Simon. “In California there are drone privacy laws that won’t be altered by Part 107, so when using a drone in California you still have to comply with those laws as well as the federal ones.”
One other issue that Simon addressed is what the Part 107 regulations actually failed to call out, namely insurance. “There is no insurance requirement,” she noted. “That is something for the industry to think about, especially if you are flying near structures or other property.”
Beyond the issues of privacy, with more drones in the air, safety will certainly be an issue, and common sense should prevail when it comes to using drones to get that perfect shot. “I would say that a good rule of thumb is that if you can’t do it on the ground,” said Windle, “you shouldn’t do it with a drone either.”
NEW RULE COULD SPUR ECONOMY
The FAA’s new rules will certainly help journalists, while at the same time it could spur more development into small commercial drones. According to a study by the Association for Unmanned Vehicle Systems International, the rule could generate more than $82 billion for the U.S. economy, while creating at least 100,000 new jobs over the next decade. As noted, the new rules could allow more stations to take to the skies, which had been a problem because of the high cost of obtaining the waiver.
Broadcast network news organizations including ABC and NBC have been able to utilize drones via waivers. CNN also received special permission from the U.S. government, and the news channel even partnered with the Georgia Tech Research Institute to collect data for the program, which the FAA analyzed in developing its rules for on newsgathering.
“Smaller stations have had a hurdle to clear,” said Waite. “However, a few Cox stations around the country have been able to use drones.”
Last September Cox Media Group was granted a section 333 exemption—specifically for “aerial photography, videography, and cinematography to support newsgathering.” The station group has deployed drones in several markets including WFXT-TV FOX 25 News in Boston, WSB-TV 2 News in Atlanta and WFTV-Channel 9 in Central Florida. While Cox Media Group was able to get a 333 exemption, many other stations around the country have already utilized other means to get that view from an eye in the sky.
“A handful of stations have obtained footage from hobbyists who decided on their own to fly over and photograph news stories, which was permissible under the old rules,” said Derrick Hinds, spokesperson for the Radio Television Digital News Association (RTDNA). “In preparation, stations might buy a drone or two, get them registered and have some employees take the FAA’s certification test, so when the rules actually go into effect, they can start using them.”
This could allow smaller stations to use drones to provide coverage that has largely not been available before. “This can allow smaller outlets to expand the coverage of events like droughts, wild fires and other big events,” said Sean Windle, procurement research analyst at industry research firm IBIS World, Inc. “Under the old rules there was a discrepancy between big outlets like CNN—which could get pilots licenses— and smaller news outlets that didn’t have the muscle to pay for the license.”
For more information on the new rules, visit www.faa.gov/uas.
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