Drones and Newsgathering – Rules, Regulations, and Tips State Associations of Broadcasters July 19, 2018 Anne Swanson Partner, Wilkinson Barker Knauer, LLP Washington, DC Aswanson@wbklaw.com 202.383.3342 Bob Kirk Rkirk@wbklaw.com 202.383.3363

“Public” (Governmental) Aircraft “Civil” (Commercial) Aircraft Who Can Fly Now? – Categories the FAA Uses in Regulating “Aircraft” Military Aircraft Military Programs “Public” (Governmental) Aircraft Certificate of Waiver or Authorization (“COA”) Part 107 Hobbyist No authorization required “Section 336” – Hands-off Special Airworthiness Certificate “Section 333 Waivers” Part 107 “Civil” (Commercial) Aircraft

Today’s Agenda Part 107 Rules (FAA) Remote Pilot Certificate Operational Requirements/Operators Airspace Restrictions/UTM Part 107 Waivers (FAA) FAA/Federal – What’s on the horizon? State and Local Regulation UAS Pilot Program Key State Regulatory Issues – Privacy, Trespass, Interference with Public Safety, Critical Infrastructure Local Regulations/State Preemption of Local Regulation FAA/Federal – Drone Registration for Part 107 Operators

(First codified regulation of commercial sUAS use) sUAS Rules – Part 107 (First codified regulation of commercial sUAS use) Bottom Line: Biggest advance – assuming compliance with Part 107 rules, operators may fly sUAS commercially without application and advance permission Largely prescriptive, only partly performance-based/risk-based Built on foundation that UAS are aircraft – addressed three-legged stool of: Pilot Aircraft/operations Airspace

Part 107 – Specific Rules Remote Pilot Certificate At least 16 years of age Pass initial knowledge test at FAA – approved knowledge test center Previously certified Part 61 pilots complete online training course available through FAA’s website Two-year term; renewable upon passage of recurrent knowledge test Self-certification on medical condition (no unsafe situation during sUAS flight) No second person (VO) required

Part 107 – Specific Rules Aircraft Requirements/Operations No airworthiness certificate needed; instead, requires pre-flight check of sUAS by PIC Must yield right of way to all aircraft Flights only VLOS Daylight only (30 minutes pre-sunrise and post-sunset with anti-collision lighting) Max speed: 100 mph Max height: 400 feet AGL or within 400 feet of structures One sUAS at time No flights over people unless (i) directly participating in sUAS flights or (ii) under covered structure or in a stationary vehicle – but no specified stand-off distance

Part 107 – Specific Rules – Aircraft Requirements/Operations (cont’d) No flights launched from moving land or water vehicle (unless over sparse population); no flights from moving aircraft Minimum flight visibility requirements (3 miles) and specified distances from clouds Permits transportation of non-hazardous property within very narrow limits (combined weight < 55 pounds, not from moving vehicle or aircraft, VLOS, not interstate)

Part 107 – Airspace Flights allowed in uncontrolled Class G airspace Unless ATC permission obtained, no flights in Class B, C, or D airspace or within lateral boundaries of Class E No operation that interferes with operations at airport/heliport

FAA – UAS Facility Maps 8

Airspace/“UTM” – UAS Traffic Management 3 Key federal initiatives related to UTM: Rules for drone remote tracking and authentication NASA – development of software research platform Focuses primarily on low altitude flights in uncontrolled airspace Testing underway LAANC – Low Altitude Authentication and Notification Capability Helps manage UAV operations in controlled airspace and around airports Deploying regionally by 9/2018, will cover roughly 500 airports

Part 107 – Waivers to Date Part 107 provisions allow nine operational rules to be waived if performance-based criteria are met Over 1,900 waivers issued to date Majority of waivers allow nighttime operations Second most popular category – operation of multiple craft Very few allow BVLOS and flights over people – mainly only former Pathfinder participants

Going Forward – Key Federal Issues Remote ID and authentication rules (to be proposed by FAA very shortly) Operation over people rules (to be proposed by FAA very shortly) Flying BVLOS Flying “outside” or “beyond” Part 107 Part 135 (e.g. package delivery) / Part 137 (agriculture) DOT economic authorizations Airworthiness certificates/Section 333 exemptions NASA – Drone traffic management or “UTM” Autonomous flights Short-term: Trump Administration’s drone “Pilot Program,” which tries to integrate expanded operations and state/local government involvement in drone regulation

STATE AND LOCAL REGULATION Well-meaning Legislators. The explosive growth of the UAS industry has prompted legislators in many states and localities to propose legislation regulating the industry or otherwise trying to address potential concerns related to UAS. FAA Fact Sheet. The FAA released a fact sheet in December 2015 clarifying that substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft and that such actions are preempted. The FAA cited a Supreme Court case noting that “[a] navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.” Examples of preempted regulation: flight altitude restrictions, flight path limits; drone operational bans; equipment requirements; etc. States and localities can adopt non-operational regulations, however, applicable to drone operations. These include privacy and contraband laws.

STATE AND LOCAL REGULATION Despite the FAA fact sheet, states and localities continued to adopt regulations governing drone operations, particularly no-fly zones. Operations over private property require consent of land owner. Operations over public property prohibited. Operations over critical infrastructure and prisons prohibited. Industry generally has argued that, before considering new legislation, however, lawmakers should evaluate whether (i) proposed legislation is preempted, (ii) the conduct at issue may already be addressed by existing state laws, and (iii) UAS-specific legislation is warranted. The FAA has informally recognized that their authority to regulate “navigable airspace” likely does not extend down to the blades of grass and that states/localities will be needed to police FAA drone restrictions.

UAS Pilot Program In October, the White House announced that it was directing the Department of Transportation (“DOT”, which houses the FAA) to implement a UAS Integration Pilot Program (“IPP”) to develop a regulatory framework that will allow more complex low-altitude operations; identify ways to balance local and national interests; improve communications with local, state and tribal jurisdictions; address security and privacy risks; and accelerate the approval of operations that currently require special authorizations. More than 150 applications were submitted by 48 states, 75 localities, 6 airport authorities, 15 universities, and several tribes. In May, the DOT announced the initial ten participants in the IPP: the Choctaw Nation of Oklahoma; the Lee County Mosquito Control District, Florida; the University of Alaska – Fairbanks; the City of San Diego, California; the North Carolina Department of Transportation; the Memphis-Shelby County Airport Authority, Tennessee; the City of Reno, Nevada; the State of North Dakota/North Dakota Department of Transportation; the State of Kansas/Kansas Department of Transportation; and the State of Virginia/Virginia Tech - Center for Innovative Technology..

Key State Regulatory Issues Privacy Trespass Interference with Public Safety (including wildfire operations) Critical Infrastructure May include correctional facilities, amusement parks, and sporting venues.

Privacy Regulations Many states have adopted new privacy laws applicable to UAS or modified existing laws to specifically apply. Generally, these laws preclude capturing images of people who have a reasonable expectation of privacy. These states include, among others: California; Florida; Indiana; Louisiana (anti-peeping); Michigan; North Carolina; South Dakota; Texas; Tennessee (unlawful surveillance); Utah; Virginia (anti-peeping); Wisconsin. Texas The 2013 Texas Privacy Act significantly limits where drones can gather aerial footage for newsgathering (or other) purposes. Subject to limited exemptions, this Act makes it unlawful to capture an image of a person on private property (or of private property) using an unmanned aircraft. The Act was enacted after drone footage of a meat packing plant diverting blood into a river was provided to authorities and resulted in a grand jury investigation. Seems counterintuitive.

Trespass Regulations Uniform Law Commission Considering model legislation that would create a per se aerial trespass tort for UAS operations below 200 feet over private property. FAA submitted a letter questioning ability to establish Aerial Trespass, which effectively creates a 200 foot no-fly zone. Some states already have UAS trespass laws, including: Louisiana; Utah; Virginia (in peeping context).

Regulations Prohibiting Interference with Public Safety Operations Uniform Law Commission The following states, among others, prohibit operations that interfere with first responders: Arizona; California; Delaware; Indiana; Louisiana; Michigan; Montana (wildfire-specific); New Jersey; Utah (wildfire-specific). This issue has become a hot button with regard to wildfires.

Critical Infrastructure Regulations Numerous states have enacted legislation prohibiting operations over or surveillance of critical infrastructure facilities, which in many cases is broadly defined. These states include, among others: Arizona; Arkansas; Delaware; Florida; Louisiana; Nevada; North Carolina (correctional facilities); Oklahoma; South Dakota (correctional and military facilities); Tennessee; Texas; Utah (public transit); Wisconsin

Local Regulation Many localities across the country are considering ordinances to protect privacy rights and/or regulate where drones can operate. City of Newton Case

Local Regulation There is some good news. A number of states have enacted laws prohibiting localities from regulating UAS operations. Among others: Arizona; Connecticut; Delaware; Florida (limited preemption); Georgia (prospective application only); Louisiana; Michigan; Texas (carve-out for “special events”); Utah; Virginia.

Registration of UAS Flown Under Part 107 On-line registration through FAA “Drone Zone” portal Part 107 operators must register each UAS individually $5 cost; need to renew in three years Drone must be labelled with registion number on outside of drone or in battery compartment if no tools needed to open Certificate (paper or electronic) must be in possession of pilot when operating drone Different rules for hobbyists, foreign nationals, and drones weighing more than 55 pounds