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12

May,2016

Section 333 Loophole For News Media Use of UAS?

A recent legal interpretation put out by the FAA addresses Section 333 issues concerning news media use of UAS in the National Airspace System. Particularly, the issues being addressed are: 1) whether members of the media may use UAS for newsgathering; 2) whether the media can use pictures or videos collected by non-media affiliated UAS operators; and 3) whether UAS operators require Section 333 exemption if they wish to sell their pictures, images, or other information to media outlets. The legal interpretation highlights something everyone already knows…if the UAS operator is flying his or her UAS for commercial purposes, he or she will need to file for and receive a Section 333 Exemption.  This basic doctrine applies to news media, in that because the use of an unmanned aircraft by a media entity to gather news would be in furtherance of that entity’s business and because it would fail the “hobbyist” test under Section 336, the news media would require Section 333 Exemption. So, where is the loophole?

 

The legal interpretation (Department of Transportation (D.O.T.) Federal Aviation Administration, 2015 WL 3451735) highlights a pseudo-loophole for news media use of UAS. Essentially, news media outlets may use pictures, film, and/or other information obtained from a UAS operator so long as the UAS operator is “not affiliated with the media outlet.” The letter stresses that the FAA does not regulate what a third party does with UAS collected data; rather the FAA’s relationship is with the person operating the UAS in the National Airspace System. “A media entity that does not have operational control of the UAS and is otherwise not involved in its operation falls outside of the FAA’s oversight.” This begs the question…how does the FAA determine whether an entity is “affiliated with the media outlet?” Does this create an opportunity for news companies or any other type of company for that matter to gain the benefit of UAS technology as a straw-man, circumventing all FAA requirements?

 

Let’s say for example that Channel 89 News never files for or receives a Section 333 Exemption, never purchases a drone, and never employs a pilot to operate a UAS on its behalf, but every night on the 11:00 news, there is footage capture from a drone. Furthermore, let’s say John Doe Drones, LLC has caught on that Channel 89 News will pay a premium price for pictures and video gathered on popular news stories. Maybe Channel 89 instructs John Doe Drones, LLC to actively gather data on all trending stories. Is this technically being “affiliated with the media outlet?” Channel 89 News has no “operational control” over John Doe Drones, as the news media is not employing the drone company. The news media is not involved in John Doe’s operation – other than to say “bring us news footage.” They are not directing the drone company as to how, when, or where to operate the UAS.

 

At this point, this relationship between the news media and drone operator has strayed dramatically from the scenario the FAA has likely envisioned and approved. The FAA relationship between news media and drone operator is one in which a hobbyist UAS pilot is flying over his house and happens to catch a photo or video of a high speed police chase with his Parrot Bebop, at which point he sells his picture to the news for a few hundred dollars. The FAA would rubberstamp this scenario because the hobbyist was not operating his drone for money and the news media was innocently purchasing data that a hobbyist drone operator miraculously caught on film.

 

Despite the FAA’s intentions, the ambiguities in one’s “affiliation with the news outlet” and the news media’s “operational control” over the drone operator/operation leaves room for great interpretation. Primarily the ambiguities open the door for news media and potentially other types of businesses to reap the benefits of UAS technology without ever owning a drone or filing for Section 333 Exemption. So what’s the problem? That’s what drone companies are all about…providing aerial data services for other companies that don’t own a drone or wish to apply for Section 333 Exemption. Well, the interpretation says that,“if the individual’s takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required. However, if the individual is conducting the operation with the primary intention of obtaining pictures, videos, or other information to sell, then the operation is commercial in nature and not part of a hobby or recreational activity.”

 

With this weak and ambiguous description of commercial vs. hobby UAS operation, there is a window for less than reputable UAS operators to argue that they never intended to sell their collected data. Rather, what’s keeping hobbyist UAS operators from actively gathering news data and then later deciding at some point to sell the data to the news media? In that scenario, the primary intention is not to sell pictures, videos, or other information — its to gather news footage. As a result, this creates a situation where neither the news media nor the UAS operator is filing for a Section 333 Exemption, but both are receiving the benefit.

 

While this loophole is a stretch, the FAA has created a potential slippery slope, as intent (whether to operate commercially or as a hobbyist) is a very subjective standard.  This article is just highlighting one more reason why UAS rules cannot get here soon enough. If you have any questions about Section 333, Section 336, or any other aviation or drone law, contact your drone attorney at The Ison Law Firm toll-free at 855-FAA-1215!

17

Dec,2015

Section 333 Attorney or Section 333 Preparation Company?

All commercial UAV operators have asked themselves this Section 333 preparation question: should I hire a Section 333 attorney or Section 333 preparation company to prepare my petition? It’s tempting to answer that question with another question by saying, “the Section 333 preparation company is cheaper…why would I spend more money for a Section 333 attorney to do the same thing?” It is true that many of the Section 333 preparation companies you see advertising on Google have undercut the market and are preparing petitions anywhere from $300 – $800. However, is making your company “legal” really the place you want to cut costs – especially in a field as legally volatile as UAV operation. This article will walk you through some of the pros and cons of Section 333 preparation companies and help you decide for yourself whether it is in your company’s best interest to hire a Section 333 attorney or not.

 
The first thing to think about is that the Section 333 process is all about preparing a petition – it’s essentially legal writing. While some preparation companies may have vast UAV and aviation technical knowledge, they generally aren’t trained in petition writing – especially petition writing that requires the appropriate legalese to allow growth within a client’s UAV business. Nonetheless, the preparation companies will claim that they have a GUARANTEED template and all they have to do is plug your company’s name into the document and you will receive your exemption…just like all their previous, successful clients. While that may be true, this strategy is not going to maximize the value of the business. In other words, let’s say you are starting a UAV business for real estate photography called “Real Estate UAV, LLC.” Are the preparation companies going to sit down with you and discuss how to broaden your Section 333 petition so as to maximize your business? No. It’s likely that they are going to plug your name into their template and spit back a cookie cutter petition with “Real Estate UAV, LLC” at the top and purpose at the bottom with: “real estate photography.”This will not maximize your potential growth. Instead, the drafter of your petition should sit down with you and discuss where your business may be 10 years down the road and whether you are legally capable of operating the type of business in your business plan, etc. After gathering this information and counseling you, the petition drafter should make your petition as broad as possible to allow for future growth. Maybe the attorney’s petition would read “Real Estate UAV, LLC” at the top and purpose at the bottom of the page with: “aerial photography; aerial videography; aerial surveying.” The problem with using a Section 333 preparation company is that they are not legally authorized to give you legal advice. This would be the unlicensed practice of law (“UPL”). As a result, essentially, all a preparation company is really allowed to do is put your name down into their template and send it off to the FAA for review…even that is legally a grey area and we feel is a pseudo unlicensed practice of law.

 

Be that as it may, because he or she is legally authorized to counsel you on aspects of the law, your Section 333 attorney can offer you so much more for a greater value than a Section 333 preparation company. For example, a Section 333 attorney can legally provide analysis of your business model, corporate set-up and structure, plan for the broadest commercial use, prepare operations, maintenance and airworthiness directives with an eye for liability, provide legal advice and analysis on UAV use prior to and after receiving you Section 333 exemption, and fight any potential FAA Civil Penalties and/or FAA Enforcement Actions that may come your way. When you consider most attorneys charge, maybe, $300 more than the Section 333 preparation companies, you are getting a great value for your money.

 
Beyond all this, you can tell the difference between an attorney prepared and an organizer prepared Section 333 petition for yourself by visiting regulations.gov. If you go to this website and search for any given Section 333 preparer, you can judge the quality of his or her work for yourself. We invite you to look at the quality of The Ison Law Group’s Section 333 petitions at regulations.gov.

 
Of course this article may be one-sided, as it is coming to you from a Section 333 and aviation law firm. Nonetheless, we think the issues speak for themselves. Hiring an attorney for legal work only makes sense. If you want to commercially operate your drone with a Section 333 petition, contact your drone attorney at The Ison Law Firm. We are regularly counseling our Section 333 clients with an eye for legal operation and a broad business plan. If you have any questions, feel free to call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

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