Know the state's rules before launching drones in Texas

Alicia Calzada, ALICIA CALZADA, Hayes and Boone, LLP

ASK AN ATTORNEY:

Q: “How do the new FAA rules on the use of drones affect Texas newspapers? I thought we had a state law that pretty much prohibits use of drones for media photography.”

A: The journalism world celebrated this summer when the Federal Aviation Administration enacted its long-awaited drone rules, clearing the way for the use of unmanned aerial systems (UAS or drones) for newsgathering.

But before journalists — particularly those in Texas — deploy drones as reporting tools, they should first familiarize themselves with key aspects of the FAA’s drone regulations and other laws. Texas has its own UAS restrictions.

Drone journalists must obtain a “Remote Pilot Certificate.” Most journalists will do this by passing an “aeronautical knowledge test” at an FAA-approved testing center, a list of which can be found at this link: https://www.faa.gov/training_testing/testing/media/test_centers.pdf

Once certified, journalists still face limits on when and where they can fly drones. Without a waiver, for example, drones can only be operated in the daytime and may not be operated “over” people who are not involved in flying the UAS. Notably, the rule does not provide a limit as to how close to people the UAS can get, so long as it is not “over” people. The FAA has specifically noted in an FAQ that the news media can request a waiver of these sorts of limitations but “will need to provide sufficient mitigations to ensure public safety”.

Texas journalists take note: the state has its own UAS restrictions, which, arguably, limit the use of drones by journalists.

In 2013, Texas passed a law banning drone use to capture an image of “an individual or real property with the intent to conduct surveillance” and publishing that image. The primary concern for journalists is that the term “surveillance” isn’t defined in the law and when a term isn’t defined in a statute, the ordinary dictionary definition applies. The definition of “surveillance” includes “close observation”, “the act of carefully watching someone or something” and “the monitoring of behavior, activities or other changing information,” which arguably encompasses many journalistic activities. A violation is a Class C misdemeanor, and could also subject violators to an expensive civil lawsuit.

There are important exceptions to the Texas anti-surveillance law, which would clear the way for legal drone use in those circumstances. The law doesn’t apply if the use is not for “surveillance” purposes. Also, there is no problem if you have permission of the owner of the property in the photo (note that this might be different from the owner of the property you are standing on). The law doesn’t apply to drone use to photograph public property or to take images of people on public property. It also doesn’t apply at the scene of a spill, or suspected spill of hazardous materials (regardless of who you are) or within 25 miles of the US/Mexico border.

Journalists might also be heartened to know there is a decent argument that the Texas law might be unconstitutional, or pre-empted by the federal laws on UAS use. However, as yet, this fight has not been undertaken, let alone won.

– By ALICIA CALZADA, Hayes and Boone, LLP