AB 2113 would restrict unauthorized drone flights near large outdoor entertainment venues, but aviation attorneys say questions remain over state authority.
By DRONELIFE Features Editor Jim Magill
The California State Assembly has passed a bill that would prohibit the operation of a drone within 400 feet of an outdoor ticketed entertainment event or amusement park, but legal questions remain as to whether such prohibitions might run afoul of the FAA’s exclusive jurisdiction of the national airspace.
On August 27, the legislature passed AB 2113, which previously had been passed by both the state Assembly and Senate, in a 76-0 final concurrence vote. The legislation is slated to be sent to the desk of the California governor for his signature.
AB 2113 is just one of a number of pieces of legislation proposed in state houses across the country in recent months to try to impose some sort of restrictions over drone operations. The bill’s advocates contend that the state has the authority to protect people and property against having to deal with unwanted drone flights over their heads.
“We’ve checked with our legal (experts) and I think that we’re right as a state,” California Assembly Member Tina McKinnor, the bill’s sponsor, said in an interview. “It’s not going to conflict with the FAA.”
She said the legislation, which had the backing of giant live entertainment and ticketing company Live Nation, will help protect the intellectual property of concerts and other entertainment venues, as well as ensure the safety of people attending the events or enjoying themselves at amusement parks.
“Because of the climate in the United States right now it’s dangerous for people to have those drones flying over them, we want to keep people safe because we don’t know what the drones are or what’s inside of them,” she said.
“The continued vitality of outdoor live entertainment and major sporting events in the state depends on the ability to protect attendees, artists, athletes and event personnel from any risks that may be posed by unauthorized or unsafe drone operations,” the bill states.
It prohibits unauthorized drone flights within 400 feet of entertainment venues with the capacity to hold 1,000 or more attendees.
The legislation states that it is designed to protect “marquee events and upcoming global gatherings,” such as the 2028 Olympic and Paralympic Games, Super Bowl LX, and major live entertainment festivals such as Coachella Valley Music and Arts Festival, BottleRock Napa Valley and La Onda, Stagecoach Festival.
AB 2113 seems to be targeted at the recreational drone pilot and those attempting to capture images or recordings of events for their own or commercial use. It does not cover a person who “holds a certificate, waiver, or other authorization issued by the Federal Aviation Administration to operate an unmanned aircraft, is operating for a commercial purpose, is authorized to conduct commercial operations beyond visual line of sight using unmanned aircraft, and is operating in compliance with all applicable federal regulations and the terms of that authorization.”
The bill also has exemptions for drones flown by police officers, firefighters and medical personnel as well as employees of regulated utilities, or of a federal, state or local transportation agency, in the conduct of official business.
Each violation of the proposed law would be punishable by a fine of $500.
Legal questions remain
Some aviation law experts question whether the proposed law would pass muster if challenged in court on pre-emption grounds.
“California certainly has a legitimate interest in protecting people attending large public events, but AB 2113 raises a serious federal pre-emption question because Congress has entrusted the FAA with regulating aviation safety and use of the national airspace,” Mickey Osterreicher, general counsel to the National Press Photographers Association, said in an emailed statement.
Osterreicher, an expert in legal questions related to drone use in the pursuit of photojournalism, said the FAA itself has cautioned that some state restrictions determining where drones may fly could be pre-empted.
“That concern is particularly significant here because the bill expressly regulates navigable airspace where the FAA has not imposed its own restriction,” he said. “It also appears that a journalist operating lawfully under Part 107 could be prohibited from using a drone for newsgathering simply because the state has declared that otherwise permissible airspace off limits.”
In an interview, Katie Inman, a partner with the firm of Holland & Knight, said questions surrounding FAA pre-emption fall into a gray area of the law.
“The FAA certainly has broad authority, and there’s no question about that. It has the authority to regulate both aviation safety and airspace efficiency,” said Inman, who specializes in federal transportation law, uncrewed aircraft systems and aviation compliance.
“But to the extent that means that its authority is exclusive depends on a couple of open questions. And those all generally point to the purpose in the state’s proposed or implemented regulation or standard,” she said.
While declining to speak on AB 2113 in particular, Inman said that in general the FAA and the U.S. Department of Transportation have stated that state and local governments do have police power to take certain measures in regard to airspace regulation.
“So, it comes down to the purpose of the statute. What is the reason for it?” she asked. She cited examples of state drone restrictions that the FAA has found to be permissible, such as preventing trespass or voyeurism, or using a UAV to capture images of prisons or certain types of critical infrastructure.
“I think folks were confused for a long time. They thought, ‘Oh if it’s in the air, then only FAA is allowed to regulate,’ and that’s not so much the case anymore,” Inman said. “It’s a little murkier than it used to be. It’s not a clear line.”
Read more:
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Jim Magill is a Houston-based writer with almost a quarter-century of experience covering technical and economic developments in the oil and gas industry. After retiring in December 2019 as a senior editor with S&P Global Platts, Jim began writing about emerging technologies, such as artificial intelligence, robots and drones, and the ways in which they’re contributing to our society. In addition to DroneLife, Jim is a contributor to Forbes.com and his work has appeared in the Houston Chronicle, U.S. News & World Report, and Unmanned Systems, a publication of the Association for Unmanned Vehicle Systems International
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