California Enacts 400-Foot Drone Ban for Concerts, Sparking FAA Pre-emption Debate

AB 2113 restricts unauthorized drone flights near large outdoor entertainment venues, but aviation attorneys raise questions about state authority.

The California State Assembly has passed a bill prohibiting the operation of drones within 400 feet of an outdoor ticketed entertainment event or amusement park. However, legal questions persist regarding whether such prohibitions conflict with the Federal Aviation Administration‘s (FAA) exclusive jurisdiction over national airspace.

On August 27, the legislature passed AB 2113 in a 76-0 final concurrence vote, following its prior approval by both the state Assembly and Senate. The legislation is now slated for the California governor’s desk for signature.

AB 2113 is one of several legislative proposals introduced in state capitals across the country in recent months to impose restrictions on drone operations. Proponents argue that states have the authority to protect people and property from unwanted drone flights overhead.

“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.”

McKinnor stated that the legislation, which has the backing of live entertainment and ticketing giant Live Nation, aims to protect the intellectual property of concerts and other entertainment venues while ensuring the safety of attendees and visitors 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 bill states that 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 risks posed by unauthorized or unsafe drone operations.

The legislation prohibits unauthorized drone flights within 400 feet of entertainment venues with a capacity to hold 1,000 or more attendees.

According to the legislation, the measure 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 including the Coachella Valley Music and Arts Festival, BottleRock Napa Valley, La Onda, and the Stagecoach Festival.

AB 2113 appears targeted at recreational drone pilots and individuals attempting to capture images or recordings of events for personal or commercial use. It does not apply to 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 includes exemptions for drones flown by police officers, firefighters, and medical personnel, as well as employees of regulated utilities or federal, state, or local transportation agencies conducting 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 withstand legal challenges 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 issues related to drone use in photojournalism, noted that 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.”

“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 comment specifically on AB 2113, Inman noted that the FAA and the U.S. Department of Transportation have stated that state and local governments do have police power to take certain measures regarding 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.”