By Mickey H. Osterreicher
WASHINGTON, DC - The House Committee on Natural Resources today heard NPPA president Tony Overman testify, along with representatives of other media interest groups, that proposed new rules governing photography, news gathering, and filmmaking in federal parks and in wildlife refuges must be carefully considered so as to not restrict any press freedoms.
The hearing was in response to the Department of the Interior's proposed "New Fees For Filming And Photography On Public Lands" which seeks to update and standardize long-standing permit requirements and fees for shooting on land managed by the National Park Service, the U.S. Fish and Wildlife Service, and the U.S. Bureau of Land Management.
Today's hearing on Capitol Hill included testimony from two panels: first from Department of the Interior representatives, joined by U.S. Forest Service representatives, and then a second panel made up of members of the media and media organizations.
"There's no reason to limit any kind of photography if the act of taking the image or film does not disturb the public use of a public area," NPPA's Overman, a staff photographer for The Olympian in Olympia, WA, who often works on assignment in park areas, told the Congressional oversight hearing. Overman also said the proposed rules unfairly do not distinguish between big productions, such as a movie or television production, and a single photographer working alone in an unobtrusive manner.
"For many years, the Department of Interior did not restrict news photography on public land or require photojournalists to submit to a fee-and-permit process,” Overman said. "The new rules would require many photographers to pay a fee, receive a permit, and submit to significant conditions before being allowed to photograph on public land.”
As defined in the proposed rules still photography means "the capturing of a still image on film or in a digital format," and commercial filming means "the digital or film recording of a visual image or sound recording by a person, business, or other entity for a market audience, such as for a documentary, television or feature film, advertisement, or similar project. It does not include news coverage or visitor use.”
Last August the Department of the Interior announced that it planned to revise its filming regulations to implement legislation that directs establishment of reasonable fees for commercial filming activities or similar projects, such as still photography, and to respond to applicants for commercial filming or still photography permits in a timely manner. What concerned NPPA and other media organizations about the proposed new rules was that the vague and sometimes overly broad language in the new regulations left it up to various government agencies to determine what is "news" and what is "commercial" photography.
While the proposed rules specifically exempt “news coverage” from the permitting process, photojournalists' access to public lands would still be subject by the rules to time, place, and manner restrictions, "to maintain order and ensure the safety of the public and the media, and protect natural and cultural resources." And these determinations would be made by various federal employees.
"The proposal, as drafted, would give Department of Interior employees excessively broad discretion to define what is and is not news," Overman said. "The result, of course, would be entirely inconsistent with the government's constitutional obligation to avoid defining or regulating the collection and reporting of the news and with our government's tradition of openness and fairness to the press."
"By including vague definitions of commercial photography, the Department of the Interior fails to recognize that non-breaking news, documentary filming, audio recording, freelance reporting, and work for a ‘market audience’ are all forms of editorial news coverage," Overman testified. “These rules equate the impact of a large-scale Hollywood production to that of a single photographer with a single camera operating in an area that is open to the public."
Freelance photojournalists, by the very nature of their profession, sometimes shoot photographs on speculation (and therefore their activity could be categorized as commercial). Because of this, Overman said, "The Department of the Interior should exclude all photojournalists, and the collection or reporting of news, from any photography restrictions and should incorporate into its rule an established definition of a ‘journalist’ and of ‘news.’”
Today the committee, chaired by Nick J. Rahall (D-WV), heard critics say that the proposed rules are unworkable, and that the discretion given to local officials regarding which parts of the rules apply to which photographers is excessive, and that the original rules implemented in 2000 were meant to deal with Hollywood movie productions and were never intended to be applied to photojournalists, documentarians, news gathering, or long-term projects and freelancers.
Rahall said the proposed regulations were just another example of the "hostility" the Bush administration has shown toward open government.
"This administration's record on resources management is dismal - maintenance in our national parks, listing of endangered species, fire preparedness and responsible energy development - are just a few examples of serious policy failures by the Bush administration," Rahall said. "Any hint that this new permit and fee structure could limit the free flow of public information regarding the very real consequences of these failures is simply unacceptable."
“A still photography permit would only be necessary when the photography is taking place in areas closed to the public," testified Mitch Butler, the deputy assistant secretary for Fish and Wildlife and Parks, "and when using models, sets, or props that are not part of the location’s natural or cultural resources or administrative facilities, or when the agency needs to monitor the activity to insure resources are protected, or to minimize impacts to the visiting public.”
According to Overman some of these concepts are very subjective, and “the proposal, as drafted, thus would give DOI employees excessively broad discretion to define what is and is not news.”
Also testifying on behalf of the media were Timothy Wheeler, the president of the Society of Environmental Journalists (SEJ); Barbara S. Cochran, president of the Radio-Television News Directors Association (RTNDA); Steven Scott, the chairman of the board for the Professional Outdoor Media Association; and Victor S. Perlman, general counsel and managing director of the American Society of Media Photographers, Inc. (ASMP).
"The language of the proposed regulation abandons the presumption that permits for still photography are generally not required, subject to some specific exceptions," Perlman testified. "It substitutes an approach and a mindset that requiring permits is an affirmative command.”
Advocating on behalf of electronic journalists Cochran expressed the concern “that the rules as currently drafted may have the unintended consequence of limiting our members’ ability to report on issues of interest and importance to the American public. RTNDA urges you, therefore, to revise the permit and fee regulations so as to make clear that they do not apply to journalists or to the collection or reporting of newsworthy information."
Wheeler related a story about a freelance radio reporter-producer who was informed that she would have to pay a non-refundable $200 application fee before she would be allowed to conduct an interview in Yellowstone National Park. While she was ultimately able to do the interview without paying a fee, the story helped illustrate how even the current rules were open to misinterpretation, misapplication, and ultimately missed opportunities. Wheeler suggested that “in order to comply with the letter and intent of the law, the Department of Interior needs to adopt the broadest possible definition of what constitutes ‘news coverage’ in deciding what filming, photography or recording activities are exempt from regulation via permits and fees.”
Scott spoke of the chilling effect current fee structures had on members of his organization. According to his calculations the fee of $250 for a permit for a single photographer was the same for a crew of 30, while other exorbitant use fees for commercial photography resulted in stories being shot in Canada and Mexico where they government charged nothing for photography of any kind on public land. “What was originally created as a net to capture fees from Hollywood production crews, has become more like a seine, netting and extracting a toll from the solitary nature photographer and documentary producer to such an extent they no longer see the forest for the fees.”
In a spirited exchange between Don Young (R-AK), the ranking Republican member of the committee, and Overman, the Congressman suggested that news organizations and individual journalists willingly submit to a “licensing fee” when covering news stories on public lands. Maintaining his position that the media should not have to pay fees in order to be able to cover the news on public lands, Overman responded that "While the government may believe that the press has no more right of access than that of the publicm we have no less right either.”
Osterreicher is the general counsel for NPPA and a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for more than thirty years. He helped draft the NPPA statement in today’s hearing along with help from Rob Sherman, Steve Weiswasser, and Brandon Almond of Covington & Burling, who do pro bono work on behalf of NPPA.