Originally published in the Winter 2014 issue of the Dow Jones News Fund's Adviser Update
In October of 2013, Linda Shockley, deputy director of the News Fund, suggested that I do a column on drone use by high school journalists. At the time, the subject was all over the JEA teacher listserv, and I thought fine – I’ll do a little research and get the JEA members’ input on how they use drones and, boom, I’ll have an article. I suggested waiting till the spring issue, so that those teachers who’d started the school year with a new drone would have some time to put their new toys to use.
My only experience with radio-controlled aircraft had been flying primitive versions as a boy and quickly crashing them into walls or the pavement. The drones being used by schools today are something completely different. Computer operated helicopters with four to eight props, they can serve as platforms for various uses and can cost anywhere from $400 to $1,000. With a camera mount and an added Go Pro camera (the only camera anyone said they use), they fly fairly steadily and can feed video back to a laptop on the ground. (Go Pros can be had for $200-$500.) Better, all the drones I researched offered terrific safety features. If a drone begins to run low on battery power or encounters a problem in the air, it automatically returns safely to it’s launch site, precluding the chance of a craft crashing down on the crowd at a football game and setting off a lawsuit.
Though their uses are somewhat limited, teachers have posted amazing aerial shots of their schools, football games, etc. on the web. A few even experimented with using them to shoot inside their school’s hallways and gyms. One yearbook adviser explained, “We're using the drone to show events from new perspectives, particularly from an extreme high angle and an extreme wide angle. We also use it to provide establishing shots of an event that students wouldn't normally see. This isn't about close-up, intimate details; it's about things you wouldn't normally see, like the marching band's precise choreography from above the field show.” Her staff plans to include QR codes in the yearbook that will link to videos online.
Paul Kandell, who advises the Paly Voice, a terrific online news site at Palo Alto High School in California, thinks his students may have been the first high school journalists in the country to employ a drone. Their campus includes a signature bell tower which no one had been allowed to enter in years. The kids flew their drone up and gave the campus its first views from inside the tower in recent memory. All advisers know one thing: Give a high school journalist a new tool, and they’ll discover unique ways to use it.
So – to finish my article, all I needed to do was find more examples of great drone use and empower teachers to get out there and get started. Then, the Federal Aviation Administration started popping up in my research. In July, the FAA ordered the University of Missouri School of Journalism to cease any outdoor aerial use of drones to gather video. The Drone Journalism Lab at the University of Nebraska-Lincoln received a similar order. Reports of the FAA banning journalistic use of drones slowly began to reach the high school journalism community.
When I initially asked the over 1,300 journalism teachers on the JEA listserv for information and images of their use of drones, I was inundated with offers to help with the article. Upon the release of the Winter edition of Student Press Law Center Report, which included an extensive article explaining why most current drone use by high school journalists was probably illegal, those offers to help almost completely dried up. Suddenly, no one in the community was returning my e-mails. I can hardly blame them.
While FAA regulation on the use of small drones is somewhat murky, most of my research into the subject had already led me to believe that this was going to be a problem. The FAA divides drone users into three groups: Businesses, who must be licensed to operate a drone commercially; public entities, who must apply for and receive a Certificate of Authorization (COA) to operate a drone; and hobbyists, individuals with no commercial intent, who may fly drones without authorization. The FAA has other requirements, that you not fly a drone above 400 feet, that you not fly one near commercial airspace, etc. But the FAA says that the only legal use of unmanned aircraft without FAA permitting is “solely for recreational purposes.” So far, they clearly do not see newsgathering as a recreational purpose.
Most journalism advisers had been operating under the assumption that they were flying their drones as hobbyists since their students had no commercial motivation in gathering footage. Hoping to get a clear decision regarding the issue, I began trying to contact the FAA. At first, all I received were links to pages on the organization’s website that included information, but didn’t definitively answer my question. Then I found an article on Surfer magazine’s website in which Ian Gregor, Public Affairs Manager for the FAA’s Pacific Division, had been willing to comment. I contacted Gregor and asked for a clarification.
“Anyone who wants to fly an aircraft - manned or unmanned - in U.S. airspace needs some level of authorization from the FAA.” he responded. “Bottom line: you can attach a camera to a model aircraft and use it for filming or photography as long as it's for your own personal use, and as long as the operation doesn't pose a hazard to people on the ground or aircraft in the skies. We consider that a model aircraft operation. But if you take that video and sell it, or use it to promote a business, that's an unauthorized commercial use of a UAS [unmanned aircraft system].”
Still unsure of how this might apply to use by high school journalists, I followed up with him and searched deeper over the Internet. Put as simply as it can be, an individual, even a student, can fly a drone as a hobbyist. If that drone is flown by or for a public or commercial entity, such use requires either a license or a COA. Public universities’ journalistic use of drones have been identified as not qualifying as hobbyist use. A public high school, just like a public university, therefore would likely be required to apply for and receive a COA before it could legally operate a drone. Lest anyone try to cut corners by saying their students shot drone video as hobbyists, if an individual student receives any remuneration for operating a drone, and that would include class credit, the activity would not qualify as hobbyist use according to the FAA. Samantha Sunne’s article in the Winter edition of SPLC’s magazine reached the same conclusion.
So, high school journalism operation of a drone does, likely, require a COA from the FAA. Getting one will not be easy. No university has yet been granted a COA for drone operation. A number are working through the application process, which is expected to take at least a year, and are involving their attorneys in the process (a luxury many high school journalists might not be able to afford). Even then, drone use under a COA will be limited. As the Missouri Drone Program wrote on its website, “A Certificate of Authorization comes with it a huge set of regulations that will make ‘drone journalism,’ as we’ve come to know it, all but impossible. Flight will occur only within a predetermined, relatively small, contiguous space. Our ability to travel and respond to events (key attributes of field reporting) will be entirely curtailed.” In other words, if you are granted a COA, it will likely only cover use above your campus and will not allow use at an away football game or covering a parade in which the band is performing.
Even more troubling, private schools do not qualify as public entities. They will, apparently, not be granted a COA under current rules.
So I thought I had it: All drone use being carried out by scholastic journalists I have encountered is, apparently, illegal under current regulations. I wrote my article and submitted it to the Newsfund.
Then, on March 6, while the publication was in production, NTSB Administrative Law Judge Patrick Geraghty disagreed. In the case of Pirker vs. Huerta, involving a Swiss drone operator who was fined $10,000 by the FAA for using a drone to film a commercial for the University of Virginia, he ruled that the FAA ban on drones wasn’t enforceable because it hadn’t been written as part of a formal rulemaking process. Essentially, faced with new issues regarding drones, the agency had simply applied old rules in place for model airplanes to the new technology. Geraghty ruled that wasn’t legal. Across the Internet, users of drones celebrated and my article was out-of-date.
The next day, on March 7, the FAA announced their intention to appeal the decision to the full National Transportation Safety Board, saying, “The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.” According to the FAA, the appeal would stay the effects of the Geraghty decision until the full NTSB rules. So, there will be no change to drone rules until that appeal is decided.
There is, however, one long term ray of hope in the situation. Gregor noted, “We're working on a rule for the operation of small UAS (UAS weighing less than 55 pounds) and plan to release it later this year. Interested parties will have a chance to comment on the proposal before we adopt a final rule.” That rule is expected to go into effect in 2015. Journalism educators and the organizations we belong to need to get involved in this process and push for an educational use exemption to be included in any new FAA regulations of small drones.
Until that happens, or until the NTSB rules otherwise, it looks like all of us are grounded.