Wednesday, February 8, 2012

New Law Could Have Enormous Impact on Drone Journalism

 The Federal Aviation Administration must make way for drones, according to a bill that passed through Congress yesterday.

Now headed to President Obama to become law, the bill requires the FAA to decide on regulations that would permit drones (the official nomenclature is UAS – Unmanned Aerial System) to operate in the same airspace as commercial jets and police helicopters. The order was included in the Reauthorization Act that extended FAA’s funding for another four years, at a cost of $64 billion.

The bill does not make the regulations for the FAA, but instead orders the FAA to make regulations within certain bounds. But it does state that the FAA should create a “a safe, non-exclusionary airspace designation for cooperative manned and unmanned flight operations.”

The FAA has deadlines to make those rules. By August, the FAA must “determine if certain unmanned aircraft systems may operate safely in the national airspace system.” Then, by November, the FAA has to deliver a plan to have commercial and noncommercial drones into the nation’s airspace.

By April, 2013, the agency must submit proposed rulemaking on UAS into the Federal Register. And finally, by September 30, 2015, the FAA “shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system.”

Not much is known about what the FAA might propose, but Congress does stipulate that the agency has to define standards for UAS certification, registration and licensing for the vehicle and for the operator. However, there is at least one stipulation with bigger technical ramifications: drones must have a “sense and avoid capability.”

Sense and avoid has been a major sticking point for drone regulation, and the concept has been repeatedly used in FAA literature. “With the introduction of the sUAS Rule for civil operators, there will be an increase in the number and scope of UAS flights in an already busy NAS,” the agency wrote in a 2011 fact sheet for the media. “Decisions being made about UAS airworthiness and operational requirements must fully address safety implications of UAS flying in the same airspace as manned aircraft, and perhaps more importantly, aircraft with passengers.”

Most sUAS (small Unmanned Aerial Systems) being developed for drone journalism fall under the same rules as model airplanes. The FAA maintains that sUAS may not fly over 400 feet, may not be flown over densely-populated areas, and may not be used for commercial purposes. Journalism, as a printed (or electronically distributed) commodity for purchase, is a commercial purpose. However, journalism as conducted for nonprofit purposes or for research at a journalism school is not a commercial purpose.

The regulations that Congress is ordering the FAA has the potential to either open drone journalism to commercial media, or close the skies to the free press. The mandate that the regulators of the nation’s airspace make room for drones is promising for drone journalism, but the additional requirements of licensing and expensive sense-and-avoid equipment could make drone operation a costly and cumbersome enterprise.

Safety technology could help prevent a dangerous situation for the public and protect journalists using drones for their reporting. At the same time, strict rules could prevent small and independent news organizations from conducting essential watchdog reporting from the air.

Image: AeroVironment's Global Observer; a long-range, hydrogen-powered UAS.

An excerpt from the bill, beginning at Section 322, H.R. 658, the FAA Reauthorization and Reform Act of 2011:


    (a) Integration Plan-

        (1) COMPREHENSIVE PLAN- Not later than 270 days after the date of enactment of this Act, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely integrate civil unmanned aircraft systems into the national airspace system.

        (2) MINIMUM REQUIREMENTS- In developing the plan under paragraph (1), the Secretary shall, at a minimum--

            (A) review technologies and research that will assist in facilitating the safe integration of civil unmanned aircraft systems into the national airspace system;

            (B) provide recommendations or projections for the rulemaking to be conducted under subsection (b)--

                (i) to define the acceptable standards for operations and certification of civil unmanned aircraft systems;

                (ii) to ensure that civil unmanned aircraft systems include a sense and avoid capability, if necessary for safety purposes;

                (iii) to develop standards and requirements for unmanned aircraft systems sense and avoid performance; and

                (iv) to develop standards and requirements for the operator and pilot of a commercial unmanned aircraft system, including standards and requirements for registration and licensing;

            (C) recommend how best to enhance the technologies and subsystems necessary to provide for the safe and routine operations of commercial unmanned aircraft systems in the national airspace system; and

            (D) recommend how a phased-in approach for the integration of civil unmanned aircraft systems into the national airspace system can best be achieved and a timeline upon which such a phase-in shall occur.

        (3) DEADLINE- The plan to be developed under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system not later than September 30, 2015.

        (4) REPORT TO CONGRESS- The Secretary shall submit to Congress--

            (A) not later than 1 year after the date of enactment of this Act, a copy of the plan developed under paragraph (1); and

            (B) annually thereafter, a report on the activities of the Secretary under this section.

    (b) Rulemaking- Not later than 18 months after the date on which the integration plan is submitted to Congress under subsection (a)(4), the Administrator of the Federal Aviation Administration shall publish in the Federal Register a notice of proposed rulemaking to implement the recommendations of the integration plan.


    (a) In General- Not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system. The Secretary may make such determination before completion of the plan and rulemaking required by section 322 of this Act or the guidance required by section 324 of this Act.

    (b) Assessment of Unmanned Aircraft Systems- In making the determination under subsection (a), the Secretary shall determine, at a minimum--

        (1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and population areas, and operation within visual line-of-sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

        (2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1).

    (c) Requirements for Safe Operation- If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.