Rise of the Drones: Tips From a Legal Perspective

By Michael Silbergleid

As an industry, sports producers (let’s be honest, all video producers) have skirted the legal requirements for drone use. That’s a nice way of saying we’ve broken the law. This isn’t universal, and it’s primarily with smaller production companies (what would be worse for a network: an indecency fine from the FCC or a drone fine from the FAA?). But it’s something we’re all aware of. We know it happens. We’ve seen the shots on TV. We may have even done it but haven’t gotten caught — yet.

An interesting note about what came out of NAB 2015: While 4K and IP presentations received a lot of attention during the show, the legal presentations offered at the Drones Pavilion were standing-room only. That says a lot about the future of drone-based production.

It’s standing-room only at the Aerial Robotics and Drones Pavilion as Lisa Ellman, co-chair of the Unmanned Aircraft Systems Practice Group at McKenna, Long & Aldridge, talks about the legal issues of drone operation.

If you’re thinking about using a drone, whether as a glorified jib or a serious production tool, there are a number of things to keep in mind.

Preproduction
Drones add a level of regulatory and legal complexity to your production (or they should). In addition to the traditional preproduction planning, you now have to concern yourself with the actual lifting body (and its controls), the gimbal (which holds the camera), the camera, and the transmission system. You also need to deal with the FAA (maybe) and, at least once, your insurance agent.

Rules, more rules, and some good news
First, the basics: You can’t fly higher than 200 ft. You must stay clear of airports, note and avoid all obstacles (especially power lines), be smart, fly during daylight hours, and don’t operate a drone over anyone who is not involved in its operation. Think of these as rules based on the adage “What goes up must come down.” And sometimes that “down” is uncontrolled. Make a mistake or have an equipment failure, and someone could get hurt or killed.

That’s why one of the first things you should do before deploying a drone is have a conversation with your business-liability–insurance agent to determine whether your policy covers property and physical damages caused by one. If not, you should get a rider or a specific policy. Having a drone mishap is one thing; being shamed in the press for not having insurance or operating illegally is another.

Now for a bit of good news. If you are operating the drone indoors (in an arena, for example), you do not need an FAA Section 333 exemption to operate your flying camera platform. Technically, there’s no “airspace” indoors. But that doesn’t mean you should operate the drone recklessly.

If you’re operating the drone outdoors, the FAA will be in your future. There are three ways you can handle this: yourself, through a third-party that can assist you in your exemption application, and by outsourcing the entire drone operation to a company that already has an exemption (a simple Google search will help you find one). The choice is based on a number of factors, the first being time.

Although the FAA has a goal of processing 10 applications per day, it may take up to 120 days, according to Lisa Ellman, co-chair of the Unmanned Aircraft Systems Practice Group at McKenna, Long & Aldridge in Washington. At that point, a company already with an exemption is appealing. On the other hand, if you decide to make drones a permanent part of your production toolkit, you should have your own exemption, even if you outsource your first few drone productions on account of time. Think of drones the same way you think of a piece of expensive production gear: does it makes sense to rent or own?

Up, up, and away
Simple physics: A bigger camera needs a bigger lifting body and a bigger gimbal.

Real-world application: A GoPro needs a smaller drone than a Red or Blackmagic camera.

Result: Bigger drones have bigger rotors and more rotor noise.

During a monster-truck rally, that’s not a problem. During a football game, maybe. During golf, you’re grounded (although a drone can be used for pre-tournament shots from tee to green).

If you’re farming out your drone operation, training isn’t a necessity. If you’re doing it all yourself, take the time to take some classes. You don’t need to be an aircraft pilot (formerly, an FAA requirement), but you do need to learn how to operate a piece of equipment that can harm people and property if not used correctly. Classes may not be cheap, but they are worth it.

There’s more good news. Our brethren in TV news are fighting hard to get drone restrictions eased. And, in February, the FAA issued a Notice of Proposed Rulemaking that will eliminate the need for individual exemptions and simplify the process of getting production drones airborne. Additionally, the new rule would raise the flight ceiling to 500 ft.

If drones are in your future, then you want to pay attention to what the FAA is doing. Click here to see the FAA’s proposed rule for the “operation and certification of small unmanned aircraft systems” and add your comment to the more than 3,000 received. The deadline is April 24.