Journalists await new drone regulations. And wait, and wait…

Across the U.S., journalists are sitting, watching, and waiting on the sidelines while the Federal Aviation Administration develops rules for the safe operation of small drones.

A few journalists have experimented with drone technology, using lightweight, remote-controlled craft to shoot aerial pictures and video footage. But under existing FAA guidelines, they’re prohibited from using drones as part of a broader ban on for-profit, commercial operation.

FAA Administrator Michael Huerta testifies on Jan. 15, 2014, before a Senate committee considering drone regulations. (AP Photo/Susan Walsh)

The announcement of new, Congressionally mandated regulations on the commercial use of small drones has already been delayed until November, and any such regulations will be followed by a comment period. Some say the process could take another year or more. Until then, only hobbyists — who are allowed to operate under a 1981 FAA agreement — can use the crafts. And that’s not sitting well with journalists.

“How is it that anyone can go down to a hobby store and fly this around, and me, with $30,000 worth of equipment, I can’t do this?” asked Matt Waite, a journalism professor at the University of Nebraska and founder of the school’s Drone Journalism Lab.

“A 15-year-old kid can walk down there with their birthday money and can be up in the air in an hour,” Waite, who occasionally contributes to Poynter, said by phone.

FAA spokeswoman Alison Duquette said hobbyists operate under “very restrictive” rules, and that her agency steps in to “address” instances of careless or reckless drone operation that are brought to its attention.

“I don’t know if the FAA is being consistent,” said Matthew Schroyer, founder of DroneJournalism.org and the Professional Society of Drone Journalists, which counts 123 journalists in 21 countries as members.

“The FAA regulations are preventing a lot of good journalism from happening,” he said in a phone interview.

And the ambiguity surrounding the rules has led to some drone journalism of questionable legality.

On Jan. 3, I wrote about a photographer for The (Spokane, Wash.) Spokesman-Review who published aerial video of a community event taken by a camera ship.

Jesse Tinsley, who has a pilot’s license, argued that the video “occurred in a gray zone” because it was shot on his off-time, using his own equipment. But the FAA disagreed, saying there is “no gray area” when it comes to drone journalism.

“We are working on [new] rules, but in the interim we have to have rules that protect people on the ground and in the air,” Duquette said by phone, adding that the FAA feels the current process “protects safety.”

Tinsley has since “self-grounded” his craft, and he’s not the only professional journalist who has done so for fear of legal ramifications.

“We are really all waiting on the FAA to act,” Waite said. “And until that happens, everything is going to be kind of muddled.”

Eric Seals, a photo and video journalist for the Detroit Free Press, said he wants to talk to his newspaper’s lawyer before using his Phantom craft for any more published work.

Seals said in a phone interview that he was “very happy” with aerial footage he took last fall, including video for a story on Michigan’s annual wolf hunt. Such footage would normally require renting a helicopter and cost thousands of dollars but can now be collected in an afternoon using a camera ship that can be purchased online for only a few hundred dollars.

“I’m disappointed that I had to self-ground it,” Seals said of his craft. “Being able to take readers on a journey to show a different perspective is something I cherish, and to not be able to do that because of a ruling makes you throw your hands up in the air.”

Three pictures Eric Seals shot with his DJI Phantom mounted with a GoPro and Zenmuse gimbal on Nov. 15, 2013, for a wolf-hunting story he was shooting in the western part of the Upper Peninsula of Michigan. Seals says he flew his Phantom below 300 feet in a large forest area with no people around. (Photos by Eric Seals)

Seals’s sentiment was shared by Matthew Jonas, a photojournalist for the Longmont (Colo.) Times-Call, who said he is “treading lightly” because of legal concerns.

Jonas has used his DJI Phantom 1.1.1 to take aerial stills and videos of flood damage, and like many others is eagerly awaiting the FAA’s small UAS guidelines. (The FAA will also be announcing regulations for larger drones that fly at higher altitudes and could potentially mingle with airplanes.)

But Jonas said he’s concerned about the possibility of regulatory overreach.

“You hope that the regulations are common-sense,” he said by phone, before asking: “If they restrict this too much, does that collide with the freedom of the press?”

He isn’t alone in worrying.

“There is a First Amendment right to photograph,” said Waite, adding that “drones in the hands of individuals do have some First Amendment protections.”

Chris Calabrese, legislative counsel for the American Civil Liberties Union, delivered that message to a Senate committee in a Jan. 15 hearing on drones.

“Drone photography, like any other photography, should be treated as a protected expression under the First Amendment,” he said. “In no case should law single out newsgathering drones for special restrictions over and above those applicable to non-newsgathering operations.”

The small drone regulations will focus primarily on safety, as the FAA lacks the authority to enact privacy statutes, FAA administrator Michael Huerta said at the Senate hearing. State and federal privacy statutes are already on the books, though.

The FAA works closely with the Academy for Model Aeronautics, the hobbyist lobby, and on Jan. 12 inked a partnership that will help produce guidelines governing the use of small drones.

While the FAA isn’t aggressively pursuing journalists who are using drones in their work, Waite said that the agency has no choice but to act when drone journalism is out in the open – which it generally is.

“Journalists have a distinct disadvantage here in that if they do it, they make it public,” Waite said, adding that he knows of many people who are literally “flying under the radar.”

Drone journalists say they are paying the price for the reckless conduct of others.

In contrast to the cautious approach he said he’s taken, Seals said he’s seen hobbyists fly drones low and over crowds. In a much-cited example, the FAA fined Raphael Pirker $10,000 for operating a drone in a “careless and reckless manner” on the campus of the University of Virginia. Pirker is believed to be the only person who’s been assessed a monetary penalty. He’s being represented by New York-based attorney Brendan Schulman (@dronelaws on Twitter), who denies that FAA regulations ban drone use at all.

Others say that journalists are struggling with the stigma of high-profile uses of drones — from large Predator drones used by the U.S. government to launch targeted strikes in remote regions of Pakistan to smaller crafts used by paparazzi to film celebs from the air.

“We cannot ignore the threat that [drones] pose to our personal privacy,” said Sen. Jay Rockefeller IV, D-W.V., at the Senate drone hearing. And Sen. Dianne Feinstein, D-Calif., recounted her surprise at seeing a pink “drone” appear outside her living-room (some have questioned her characterization).

But journalists reject the idea that there’s any connection between such voyeurism and what they do.

Jonas said a drone is “just another tool, like a lens, that I can use to tell stories. The negative connotation of ‘drone’ is not appropriate for what we do.”

Related stories: FAA on drone recordings by journalists: ‘There is no gray area’ | Photographer says Spokesman-Review’s drone-shot video occurred in a ‘gray area’ | Video drone crashes during Virginia running of the bulls | What journalists need to know about drones

Related training: Covering Drones in U.S. Airspace and in Your Community | Drones for Reporting and Newsgathering: The Promise and the Peril

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