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FAA clarifies rules for drone use in education and journalism





“So, I want to take a drone shot of everybody at my school.”

It’s the preface to a question Matt Waite gets more than he’d like; it typically comes from high-school and college journalists, or even journalism advisers. Waite, a journalism professor at the University of Nebraska whose affinity for drones has made him a national expert on the topic, has a response ready.

“I ask them, are they insured?” Waite said. “They get this puzzled look on their face. And I say, ‘OK, you’re flying a lawnmower over the heads of children. What could possibly go wrong?’”

A lot, it turns out. And if anybody has the right to lecture people on the dangers of unmanned aerial vehicles, it’s Waite. That’s because until 2015, the Federal Aviation Administration required aspiring drone pilots to obtain a full-blown pilot’s license to use the devices legally.

To fly a 10-pound hunk of plastic – legally, at least – you needed to learn to fly an airplane.

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Most people either ignored the law or stayed away from incorporating UAV photography or videography in their reporting. Waite got in the cockpit of a Cessna 162 Skycatcher.

Ten months after Waite got the license, the FAA rescinded the requirement, asking drone aficionados to pass a written safety test in lieu of actually getting behind the sticks of a plane that weighs considerably more than 10 pound and needs an airstrip, not a few feet of lawn, to take off and land.

Waite was out several thousand dollars for pilot’s lessons. And while he had fun doing it, the money ended up buying him a license he doesn’t have time to use and a slightly early legal entry into the world of drone journalism.

“I have honestly had all of the feelings about that,” Waite said. “I’ve been mad, I’ve been frustrated, I’ve been amused, I’ve been, you know, disgusted. You name it and I’ve felt it.”

The Unintended Expert

Given his experience, Waite is happy to tell those who’ve invested less time and thought that such an endeavor is riskier than they might think.

“There have been instances around the world where people have been injured by drones falling from the air,” Waite said. “There was a case in the UK where a toddler had his right eye cut out by a blade. There have been videos of concerts where some idiot was flying a drone over the crowd and some idiot lost control of it, and it hit people in the head, They weren’t seriously injured, by the grace of God alone.”

The crowd shot, be it at a concert or sporting event, is often the elusive target for any drone operator that’s sure to be popular on Twitter or make the next day’s front page. Getting the shot is easier said than done.

Last year, a student journalist (who had not applied for a commercial exemption) flew a drone into Commonwealth Stadium at the University of Kentucky in the minutes leading up to a sold-out football game. He was charged with criminal trespassing and wanton endangerment, but according to the Kentucky Herald-Leader, pled down to a $100 fine for only the trespassing charge. He also forfeited the drone and the iPad he’d used to control it.

That distinction – between hobbyist and professional – is a critical one.

Hobbyists don’t need what’s known as a 333 exemption, an exemption from the rules set forth by Section 333 of the FAA Modernization and Reform Act of 2012. But the lines quickly blur between recreational drone pilots and commercial ones. Only commercial drone pilots need the exemption.

In May 2016, the definition of a “hobbyist” expanded to include the use of UAVs in an educational setting, provided it was part of the coursework at an accredited school. The FAA’s guidance explicitly included television and film production.

“If somebody who’s a hobbyist offers (footage) to the media, the media can use it,” said Mickey Osterreicher, the general counsel for the National Press Photographers Association. “But if same hobbyist, time and time again, was seen giving same footage to news media, they would look a little more carefully to see if hobbyist had a 333 exemption.”

And that doesn’t even address the external conversation about whether newsgathering is inherently a commercial activity.

The rules go on, for all drone pilots: No flying above 400 feet, no flying at more than 100 miles per hour, only UAVs under 55 pounds, and, until recently, no flying directly above crowds of people.

To date, CNN is the only news outlet to have gained FAA permission to fly drones over crowds of people – the network was able to demonstrate it could safely do so using a tethered drone. The agency recently announced a policy change that will allow some journalists with the proper permits to fly drones over crowds once they demonstrate their ability to do so safely.

The legal distinctions are well known in many journalism circles. But the devices’ accessibility – lower-end, camera-equipped drones can run as cheap as $160 on Amazon – makes it tempting to simply grab one and go.

The bottom line for student journalists: Insurance matters, and their respective schools’ administrations might have varying degrees of willingness to shoulder the liability that goes along with piloting a UAV.

When things go wrong, Osterreicher said students who haven’t done their due diligence shouldn’t expect to be bailed out.

“I think most high schools and colleges, in terms of dealing with their journalism students, and people who work at those news organizations, I think they’re going to look at the facts,” Osterreicher said. “If you, let’s say, were speeding on the highway, to go to cover a story that had to do with the school, would they defend you? Probably not. It would probably be best for those journalists and journalism organization, whether it be a paper or class, to get a clarification from the administration as to how they’ll feel about using drones for newsgathering purposes.”

Waite doesn’t allow students in his journalism lab in Lincoln to simply “check out” drones as if they were cameras, microphones or other common equipment used by student reporters around the country. He’s present for every flight, and students need to reach a level of trust and respect before they’re handed the control sticks.

“Just being a cowboy and going and grabbing one and flying over people’s heads because it’s cool and not being insured is insane and is likely to result in very very bad things,” Waite said. “For the pilot, and then further on down the line, broader consequences.”

Speaking in the days following the 2016 presidential election, after which crowds of high-school students around the country left class to protest the election results and voice their concerns with the incoming administration, Waite made reference to student journalists who might have interest in grabbing that bird’s-eye crowd shot.

“A journalist, be they 16 or 60, who busts out a drone at a high-school protest to get that crowd shot, has to understand that they are responsible for the safety of everyone on the ground. They need to act accordingly.”

Adult Supervision Required

Ellen Austin, a journalism instructor at the Harker School in San Jose, California, knows exactly what Waite means.

“I still think there’s a big learning curve to fly a drone safely and with confidence,” she said. “One caveat I would have for schools considering drone use is to be aware of what is part of being a teenager, which is sometimes an abundance of confidence without the skills to back it up.”

While a few college newspapers and journalism departments – Waite being the most notable example – have incorporated drone technology into their reporting operations, it’s far less common at the high-school level.

That’s in large part because, in Osterreicher’s words, many of the schools with the resources have acted accordingly. Harker, and a handful of other California schools, are no exception.

Austin arrived at Harker two years ago, and just so happened to be graced with the presence of Erik Marten, a professional photographer on the school’s communications staff who had an affinity for drones.

With Martin’s help, Austin got the school to agree to purchase a drone and take steps toward allowing students to use it for photography and videography.

“That involved some conversations with the administration and office of communications to get some clarity about how would drones be used, where they would fly, where you can have a drone if you’re shooting football, etc.,” Austin said.

It’s unfortunate for Austin that her school adjoins airspace regulated by three different airports: NASA’s Moffett Field in nearby Cupertino, San Francisco International Airport and Mineta San Jose International Airport. The campus is also a block south of Interstate 280, one of the Bay Area’s most congested freeways.

“Our flight skills have to be a little more precise,” Austin said, remembering that once, during a flight test, a drone unexpectedly drifted over the freeway.

That’s why the school has been so careful in moving the drone program forward. And almost as soon as it began, the FAA tweaked drone regulations again. With the latest change, Harker and Marten seem primed to get things off the ground.

They already have one target in mind.

“We’re building a new building,” Austin said, “and one of the things we think a drone is great for is being able to go where you can’t go, to get up in the air and actually take pictures of the construction site. We can’t be there with a hard hat, but we can be there with a drone.”

Still, the drone can’t be everywhere. The school has a strict set of protocols that conform to FAA regulations and are tailored to its geography. Students are looking forward to using drones to photograph football games, for example, but can’t operate the UAV over the stadium.

Instead, they’ll keep it off beyond a corner of the football field, hovering over a nearby swimming pool and parking garage. That way, Harker said, if the drone were to suddenly lose power or contact with its controller, it would land or fall into a swimming pool or onto the parking structure’s roof.

“One of the reasons we had a delay in getting the drones up and running was getting our legal department to OK it,” Austin said. “The school agreed we could use drones with students in the program if there was some flight test for students.”

It’s stressed to students who show interest that the typical rules of privacy still apply, though it’s now possible to fly devices through backyards and next to living-room windows. That potential has created privacy concerns. But, as Osterreicher pointed out, what innovation in newsgathering technology hasn’t?

“The hysteria’s nothing new,” he said. “When George Eastman invented the camera that people could shoot handheld in the late 1800s, everybody thought that the right to privacy as they knew it was completely over.”

As long as those involved remain cautious and responsible, everyone – the FAA, journalists, schools and public safety officials – seems satisfied, which leaves room for more whimsical takes on what’s to become of drones and the way journalists use them.

“This is a brave new world,” Osterreicher said. “We’re all kind of pioneers in this.”


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