Holland & Knight Announces Formation of Drone Practice Team, Files Brief in Support of Photographer Fined by FAA for Drone Use

WASHINGTON (May 6, 2014) - Holland & Knight LLP announces the filing today of a legal brief for a coalition of news media organizations in support of a photographer fined by the Federal Aviation Administration (FAA), as well as the formation of its practice team devoted to advising clients about Unmanned Aerial Systems (UAS), or drones.

The law firm today filed a brief on behalf of 14 news media entities before the National Transportation Safety Board (NTSB). The NTSB is considering the FAA's appeal of an administrative law judge's March 6, 2014, ruling declaring the FAA's ban on the use of commercial UAS was unenforceable. The news media coalition's brief argues that the administrative judge's ruling was correct, and that in any consideration of drone regulation, the NTSB and the FAA should take into account the public's First Amendment right to receive news and information, and the news media's right to gather the news.

"From news reports on agriculture to tornadoes to environmental degradation, new UAS technologies can safely provide the public with valuable information from entirely new perspectives," said Charles D. Tobin, chair of Holland & Knight's National Media Practice Team and a partner in the firm's Washington D.C. office. "As it weighs safety concerns, the government must consider the First Amendment interest in the free flow of information through aerial news-gathering. The news media should be seated at the table as the government drafts new regulations."

Tobin, along with Holland & Knight lawyers Gary L. Halbert, who is the former general counsel for the NTSB, and Christine N. Walz, wrote the brief submitted to the NTSB in support of Raphael Pirker. Pirker was fined $10,000 for flying a camera-equipped model aircraft around the grounds of the University of Virginia in 2011. In challenging the fine, Pirker succeeded in winning the judge's ruling that the FAA's stringent regulation of commercial drones was unenforceable because the FAA had failed to adopt it through appropriate procedures. The FAA's appeal of the ruling is now before the NTSB.

In the brief supporting Pirker, the news media organizations argue:

• Drone journalism should not be considered a "commercial" use since news-gathering is a First Amendment-protected activity.
• The public benefit from enhanced aerial news gathering also weighs in favor of carefully crafted and restrained government regulation.
• Privacy concerns are adequately addressed by existing state laws and should not dominate the discussion at the federal level.
• The FAA should engage in appropriate notice-and-comment rulemaking before regulating the technology, with opportunity for the news media to express the public's interest.

A copy of the brief may be found at this link: http://www.hklaw.com/files/Uploads/Documents/CaseBriefs/MediaLaw/Drones.pdf

Holland & Knight's new Drone Practice Team advises a variety of clients regarding compliance with existing federal regulations and the evolving public policy environment on unmanned aerial systems. In addition to the authors of the brief, team members include: Charles R. Naftalin, chair of the firm's Telecommunications Team; David C. Whitestone, chair of the firmwide Transportation Industry Practice; Philip Baker-Shenk, a partner in the firm's Indian Law Practice Group; and Joel E. Roberson, a former Capitol Hill legislative aide now practicing with the firm's Public Policy & Regulation Group.