By Dronelife Features Editor Jim Magill

A coalition of news media associations has sent a letter to the FAA, raising questions about the agency’s recent issuance of a controversial Notice to Air Missions (NOTAM), which imposes sweeping restrictions to the operation of UAVs above or near federal agents and their vehicles.

In the letter, addressed to FAA’s Chief Counsel William McKenna, Charles Tobin, an attorney representing the News Media Coalition, decried the “sweeping and unprecedented” nature of NOTAM FDC 6/4375, a temporary flight restriction (TFR) which the FAA issued on January 16.

“The TFR seeks to preclude First Amendment-protected aerial journalism within a half-mile of all DHS, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) operations,” Tobin wrote.

Under the NOTAM, all unmanned aircraft are prohibited from flying within a stand-off distance of 3,000 feet laterally and 1,000 feet above “facilities and mobile assets, including vessels and ground vehicle convoys” belonging to the Department of Defense (DOD), Department of Energy (DOE), and Department of Homeland Security (DHS). It replaces an earlier NOTAM, which did not include DHS officers and assets and which focused largely on static facilities and military vessels such as U.S. Coast Guard-operated ships. 

In effect, the new rule creates large mobile no-drone zones for vehicles driven by federal agents, such as those in the ICE, by classifying the airspace above and around their convoys as National Defense Airspace. The NOTAM has raised concerns among legitimate drone users, who fear that they might inadvertently be violating the regulation, as well as by civil liberties organizations who contend the restrictions impinge on UAV pilots’ constitutional rights.

Tobin wrote that the FAA failed to find sufficient safety-related reasons for imposing the temporary flight restrictions (TFR) and failed to provide adequate guidance for drone pilots seeking to operate within the strictures of the NOTAM.

“The TFR was imposed without any finding that a hazard or condition exists to justify the most sweeping prohibition on UAS activity across the United States ever imposed.  The TFR also fails to provide the points of contact with whom accredited news representatives can coordinate to fly in the designated air space,” he wrote.

In an interview with DroneLife Tobin said he was concerned about the NOTAM’s vague and confusing language, especially in regard to drone operations in the vicinity of government vehicles.

“The ‘mobile assets’ language is so murky and does not provide adequate guidance to drone journalists. It could be read to block any and all coverage of current newsworthy events like the ICE activity in Minneapolis,” he said. 

He added that the members of the coalition were concerned that the FAA had posted the NOTAM without seeking any input from the news media or the general public about the potential obstacles the regulations would place in the way of legitimate news gathering. 

Before sending the public letter, Tobin said the coalition had reached out to the FAA to discuss its concerns about the restrictions. “We asked the FAA who we could speak with about this issue, and we never received guidance,” he said. 

Tobin declined to say whether the coalition would follow up on its letter by filing a lawsuit against the FAA, seeking to change or overturn the NOTAM restrictions.  

“We would welcome a dialogue with the FAA to reach a reasonable resolution that would permit legitimate news gathering of these critical historical events,” he said.

Tobin said that to date he is not aware of any journalists who were unable to use drones in their reporting as a result of the TFR, but said this is not the first time the coalition had lobbied to change FAA restrictions that were thought to interfere with journalists’ First Amendment rights.

“I do know this happened several years ago in Ferguson, Missouri, where they deployed a similar NOTAM for the protests that were going on there, and I believe it was lifted shortly after,” he said.

The News Media Coalition represents a broad cross-section of large and small media-related companies and associations. Its membership includes the Electronic Frontier Foundation, Getty Images, National Press Photographers Association, The E.W. Scripps Company, The New York Times Company, the parent company of The Washington Post, and 15 additional local and national news organizations and nonprofits.

Backlash Among Civil Liberties Groups 

Other civil liberties organizations also have weighed in on the implications of the recent NOTAM. 

In an interview Adam Rose, the deputy director of advocacy at the Freedom of the Press Foundation, said the restrictions likely would deter drone pilots who are otherwise operating legally and safely from taking to the skies, especially around law enforcement operations. He said the greatest impact of the policy likely will be on citizen journalists and smaller news media organizations that can’t afford to employ helicopters or other manned aircraft in their reporting.  

“The reason drones are important for journalists is that they allow you to get aerial photography and videography in a manner that is not only vastly more cost-effective, but also puts fewer humans in the air. 

“It’s reducing safety in that regard. But it’s also chilling people’s rights because since they do have a First Amendment right to record in public and because they will be unable to, it is going to prevent the coverage of the most important story in our nation right now,” Rose said.

“The TFR threatens drone operators with significant criminal and civil penalties for what, before now, had been routine First Amendment-protected activity.  This TFR should be lifted immediately,” Adam Schwartz, privacy litigation director at EFF, said in an emailed statement. 

In response to the issues raised by the Coalition and others, the FAA issued the following statement:

• Drone operators should always check airspace restrictions using the B4UFLY apps or visit https://tfr.faa.gov.
• Operators who believe they may be violating NOTAM FDC 6/4375 should land as quickly and safely as possible.
• Individuals who believe they may have committed a UAS-related regulatory violation may submit a report through the NASA Aviation Safety Reporting System (ASRS).

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