No fly zone

February 1, 2012

Unjustified temporary flight restrictions ground journalists

By Andrea Papagianis

Local and state police vehicles swarmed around a suburban apartment complex — 50 miles northwest of Boston — as authorities geared up for what was believed to be a standoff with a shooting suspect. Early that morning a 27-year-old man was found bleeding from a gunshot wound outside an apartment complex, triggering a heavily armed search for the gunman.

As authorities searched for the armed suspect Massachusetts State Police requested media outlets to voluntarily “refrain from filming live shots from the airspace above the Fitchburg scene.”

“The State Police are asking you to NOT FILM LIVE shot above the scene,” wrote police spokesman David Procopio in an email to members of the news media. “We are making this request in the interest of tactical, operational, and officer security reasons. Your compliance is appreciated.”

But news organizations had the right to film above the scene up until the point federal restrictions were handed down. 

The Federal Aviation Administration issued flight restrictions — at the request of local law enforcement — curbing the aerial view of the events.

These restrictions, called Temporary Flight Restrictions (TFRs), are measures administered by the FAA to limit certain aircraft from operating within a designated area over a specified period of time. Technically, TFRs are issued to protect people both on the ground and in the air from any harm.

Under the Code of Federal Regulations, each TFR must provide a hazard or condition as to why these restrictive measures are being implemented. But recent flight restriction approvals have raised the question as to whether the FAA is allowing local law enforcement to place overly restrictive measures limiting the scope of helicopter newsgathering without providing sufficient reason.

In the Fitchburg incident, the stated reason in the FAA-issued Notice to Airmen — commonly called a NOTAM — failed to specify any hazard or condition for limiting the airspace. The given reason was “temporary flight restrictions,” reaffirming what was already known, but not elaborating further.

In response to the TFR imposition, the Hearst Corporation, which owns WCVB-TV in Boston, sent a letter to FAA officials calling attention to what they considered to be “serious deficiencies in the FAA’s practices relating to TFRs.” According to the letter, “these deficiencies” led the FAA to execute “overly restrictive, baseless TFRs at the request of State Police.”

The letter cited other similar situations in which the media organization felt that TFRs were improperly approved.

“WCVB recognizes that there may be certain limited circumstances justifying a TFR, where the very presence of aircraft in the vicinity of law enforcement activity may pose a danger to others. In those rare instances, it should not be difficult for the FAA to demand, and for law enforcement to provide, a clear explanation for why the restrictions are warranted,” Stephen Yuhan, legal counsel for Hearst, said in the letter.

According to the FAA, local law enforcement must establish a threat to aviation in the area covered by the flight restrictions or from aircraft operating in the area posing threats to people or situations on the ground. An example of a threat to people or situations on the ground might be a crime scene in which low-flying aircraft could scatter evidence or a fire that could be worsened by the helicopter rotors.

If no credible threat exists to people in the air or on the ground, TFR requests are denied, the FAA said. While they try to refrain from limiting airspace, an FAA spokesman said officials granting restrictions generally do not ask law enforcement elaborate details about their requests, but rather use personal judgment on individual cases as they arise.

Unjustified restrictions

On Oct. 18, the search for 11-year-old William McQuain came to an end.

After a six day search, authorities discovered the body of a young black male in a wooded area on the outskirts of Clarksburg, Md. — about 35 miles northwest of Washington D.C.

Regional media outlets flocked to the town as local authorities and volunteers, clinging to the hope of finding McQuain alive, combed the area where he was last seen. But in the end, the young boy’s remains were found with the baseball bat authorities believed was used in his attack. Almost a week before McQuain’s body was found, the boy’s mother was found brutally beaten and stabbed to death in the home she shared with her young son.

That morning the Montgomery County Police Department requested a temporary flight restriction for a five mile radius surrounding the area where the 11-year-old was found. The FAA granted the request and the specified airspace was closed.

Depending on the severity of an event or the security need, flight restrictions can be issued in as little as 20 minutes, according to the FAA. There is no standard timeline.

On the morning McQuain was found,  the issued notice stated the reason for closing airspace around the crime scene was “to provide a safe environment for law enforcement activity.” Pilots are expected to check the alert system before each flight.

But news organizations in the area did not believe law enforcement provided a valid reason for limiting access to news aircraft.

“The fear is that these law enforcement agencies — who taxpayers are paying for — simply do not want to be observed as opposed to offering any justifiable reasoning for cutting off access,” said Kathleen Kirby, legal counsel for the Radio Television Digital News Association. “As a matter of public policy there’s a right to gather the news and, absent any countervailing interests that law enforcement has, that right should be upheld,” Kirby said.

Numerous entities can request TFRs, such as military commands, intelligence agencies, local law enforcement, governors, and major event organizers. Law enforcement officials making airspace closure inquiries can contact both local and national air traffic facilities to request a temporary flight restriction, which are then approved at the national level.

For the most part, safety and security reasons are cited when issuing flight restrictions. Circumstances under which airspace may be closed vary and may include a chemical plant explosion or a volcanic eruption, when toxic gases or fumes are on the ground or in the air. The FAA also approves such restrictions after natural disasters when rescue and relief efforts are being executed by other aircraft.

Widespread flight restrictions are implemented during presidential travel to secure airspace over the areas visited and traveled by the president. These security measures extend to the vice president and other high profile public figures.

When events create a high level of public interest — such as the Super Bowl and World Series — airspace will be closed. Standard flight restrictions are also implemented in the area surrounding aerial performances and all space flight operations.

According to Kirby, the Radio Television Digital News Association plans to work with the FAA, local law enforcement and media organizations to ensure there is an appropriate issuing process in place, so the interests of law enforcement are equally weighed with media interests.

Gulf oil spill and TFRs

By land, sea and air, journalists struggle to gain access.

Ted Jackson gripped his camera as the tailgate of the U.S. Coast Guard plane opened over the oil streaked Gulf of Mexico. Shooting down the belly of the plane he glanced to see his photos, as luck would have it, Jackson said he got his shot — this time at least.

On April 20, 2010 — about 50 miles off the Louisiana coast — an explosion aboard the Deepwater Horizon offshore oil rig killed 11 workers. After burning for 36 hours the rig — registered to British Petroleum — sank into the ocean, spilling millions of gallons of oil into the Gulf of Mexico and quickly becoming one of the greatest environment disasters in United States history.

From the initial explosion to cleanup efforts, access to journalists was limited Jackson, a photographer with The Times-Picayune, fought for access every step of the way.

“We were certainly the eyes for the world to determine what was going on out there,” Jackson said. “Nobody knew how bad it was going to be.”

After hearing reports of tarballs — dark pieces of crude oil — washing ashore, Jackson made the two hour drive south from New Orleans to Grand Isle, La., where he met a posted guard securing access to the beach. As more journalists arrived that day, each was allowed access to the beach — but only in about 10 minute shifts. What should have been a simple photo shoot turned into an ordeal with authorities that only escalated as conditions of the spill worsened.

“It’s hard enough sometimes to do journalism and to be held back at arm’s length where you can’t see; it had kind of a strangle hold effect on the journalism that we could do,” Jackson said.

Because there was no way of knowing where or if the oil would reach land, Jackson took to the sky. When he chartered a plane to fly over the coast, the event became even more difficult to cover when it was not clear who was in charge.

Jackson thought BP might have been in charge since journalists were not only dealing with local and federal authorities, but with BP officials as well.

The day Jackson chartered a flight, the aircraft could not descend below 3,000 feet. Jackson said even with his longest lens you could not tell if there was a human being on a boat from that height. In hopes of getting closer to the disaster, Southern Seaplane owner Lyle Panepinto requested to fly at a lower altitude, but when authorities questioned who was on the plane, the request was immediately denied when he answered that he was with a photographer from The Times-Picayune in New Orleans.

“This was our coast, these were public beaches, Louisiana wetlands and we felt that we had a right to be able to see that,” Jackson said. “We felt like, especially with a foreign company, that BP was calling all the shots.”

After complaints emerged, the FAA revised fight restrictions over the gulf, allowing fly-overs on a case-by-case basis.

Eventually authorities coordinated boat and plane media tours operated by the Coast Guard.

As Jackson described it, the tours felt, “almost like a ride at Disney World where you get in and are assigned a seat and you are asked not to move around too much.”

But Jackson said he didn’t have much of a choice in the matter — while the situation wasn’t ideal for reporting, “at least it was access,” he said.