The White House has announced a new Department of Transportation (DOT) pilot program for state, local, and tribal governments "to test the further integration of" drones into the national airspace.

The Presidential Memorandum could lead to more state, local, and tribal laws interfering with the ability of drone journalists to conduct newsgathering flights. Some members of Congress, however, have said the administration's new initiative doesn't go far enough.

The Trump administration has couched the new pilot program as a follow-up to the federal testing program that the Obama administration and Congress set up in 2012. That program was a precursor to the small Unmanned Aircraft Systems (UAS) regulation the Federal Aviation Administration (FAA) enacted last year, which now permits journalists with FAA remote pilot certification to fly news missions below 400 feet.

The new Presidential Memorandum calls for:

  • state, local and tribal governments to partner with industry "to test within their jurisdictions the integration of civil and public UAS operations into the NAS below 200 feet," or up to 400 feet if the Secretary of Transportation decides to adjust the parameters;

  • DOT and the FAA to enter into agreements "with the selected governments to establish the terms of their involvement in UAS operations within their jurisdictions;" and

  • DOT and the FAA "to grant exemptions, authorizations, and waivers" from FAA drone regulations to conduct the testing.

The Presidential Memorandum outlines a timeframe of: 90 days for the DOT and FAA to set up the program; another 180 days for the DOT to begin entering into agreements five at a time with the state, local and tribal governments interested in participating; and another 90 days for those "to begin the integration of drones" into the airspace in their jurisdictions. The program will sunset in three years unless extended by the Transportation Secretary.

The Presidential Memorandum falls short of authorizing new regulation by state, local, and tribal governments. But it comes in response to increasing pressure from those governments, and some members of Congress, for the relinquishing of the FAA's nearly exclusive control over the regulation drone flights.

As many newsrooms have experienced, many state, local, and tribal governments have enacted drastic laws and regulations—and some outright bans—regarding drone flights in their regions. The FAA has issued vague guidance to those governments about the limits of local authority, but has repeatedly asserted that Congress provided the FAA with near-absolute control over the national airspace.

A federal judge in Massachusetts last month underscored the FAA's strong authority and struck down the City of Newton's ordinance banning on all drone flights under 400 feet. The judge held that federal FAA law preempts the City's authority. The City last week appealed that ruling.

Ballard Spahr's Media and Entertainment Law Group represents a coalition of 20 news media organizations involved in litigation and government policy development regarding drone regulation affecting journalists. The Group is dedicated to supporting the free press and the First Amendment rights of companies and individuals, and helps clients navigate challenging media law issues across all platforms and industries.

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