After journalism groups protested federal rules imposing fees and permits on journalists working on public lands, the Senate Energy Committee November 19, 2015, approved a bill that would exempt newsgathering. By voice vote, the panel first approved an amendment containing the exemption, and then approved the underlying bill, S. 556, known as the "Bipartisan Sportsmen’s Act of 2015."
Before it was amended, the bill contained language that would have enshrined existing regulations that had been used to impose fees and permits on journalists -- leaving them in place but allowing media to opt out by paying an annual fee. As amended, the bill would override existing law and regulations covering public land units such as National Parks, National Forests, and units managed by Interior's Bureau of Land Management.
As the committee neared consideration of the original bill (which contained no news media exemption), the Society of Environmental Journalists (SEJ) and the National Press Photographers Association (NPPA) wrote committee leaders objecting to it and asking "commercial filming" language to be stricken. The text of the letter is available here. The two groups' position was similar to one taken by a larger coalition of journalism groups on a similar measure last year.
Fuller information on the package of legislation approved by Senate Energy -- along with recorded video of today's markup session, is available here.
While the larger bill directs the Interior and Agriculture Secretaries to establish a fee schedule and permits for "commercial filming" on public lands, it exempts "news gathering."
"In general," it states, "News gathering shall not be considered a commercial activity." (This misinterpretation under the previous law was the source of the trouble.) "In this section, the term ‘news gathering’ includes, at a minimum, the gathering, recording, and filming of news and information related to news in any medium."
How the National Park Service, the U.S. Forest Service, and the Bureau of Land Management will interpret that definition, as they implement the potential law through regulation, remains to be seen. Earlier agency rules -- if they exempted newsgathering at all -- only exempted "breaking" news. Such rules might not require a permit to cover a live forest fire, but would still require a permit to cover a forest's recovery from the fire.
One key question is whether it would include documentary film-makers and videographers. The new Senate committee amendment leaves that uncertain. But both journalistic film-makers and non-journalistic film-makers could take some umbrage from another provision of the committee bill. Its language specifies that Interior and the Forest Service "shall not consider subject matter or content as a criterion for issuing or denying a permit under this Act." Such content-neutrality is favored by most First-Amendment advocates -- and would tie the agencies' hands if they tried to distinguish between documentaries that were news-related and those that were not.
Fees and permits for "commercial filming" on public lands were imposed under a law passed in 2000. That law was aimed at large Hollywood productions that sometimes damaged natural resources, cost agencies money, and interfered with other people's use. Rules enforcing that law remained hazy over the years since, and they were sometimes aimed at journalists.
The language approved by the Senate panel Thursday would order the Secretaries of Interior and Agriculture to issue new rules (and a fee schedule) within 180 days of the bill's enactment.
Relevant to small documentarians is another provision: the bill exempts from further fees commercial filming operations that (1) have other permits, (2) qualify as "small business" under federal law, (3) have a crew not larger than 3 people, and (4) use only a camera and tripod. Such filmers would, however, have to pay any costs incurred by the land agency as a result of their activity.