Can Augusta ban drone flights over the Masters?

Can Augusta ban drone flights over the Masters?

By Elizabeth Wharton –

The Augusta-Richmond County Commission on Tuesday unanimously passed an ordinance essentially banning the use of drones within Richmond County from April 2 through April 13 (hint, right around the timeframe that a major international event will tee-off). While only mentioned by name a few times during the meeting, the intended target of the ban is clear.

Augusta’s ordinance, proposed during the meeting by Col. Robert Partain on behalf of the Richmond County Sheriff’s Department, takes both commercial and recreational drone requirements a giant leap further than current Federal Aviation Administration (FAA) rules. Partain and the provisions of the ordinance claim public safety as the main impetus for enacting the ban. The ordinance expressly encompasses model aircraft (generally okay under FAA rules) in requiring written permission from the Augusta Commission in addition to any FAA authorization prior to operating a drone. The ban applies to any flight over a populated area, including a “sporting event or open air assembly of persons.”

Commissioners amended the initial proposal, narrowing the time frame to fit the Master Tournament dates and leaving room to address the issue further post-tournament. It was noted during debate that as written, the ordinance will prohibit Augusta’s civic center from incorporating drone use into events (think promotional t-shirt drops from drones or aerial photography) without obtaining the Commission’s written permission. Similarly, current police and other state agency use such as that by the Georgia Department of Natural Resources would also now require additional permissions.

The Commission’s rush to get the law in place before April open many logistical and practical questions– without addressing solutions.

Augusta’s move follows similar drone bans by the South by Southwest Tech conference (SXSW) this past weekend in Austin, Texas, and during the Super Bowl football game in February. In each instance, crowd safety was cited as the main concern. In announcing its drone ban policy, SXSW organizers also cited Austin’s aviation ordinance, Ordinance 13-1, requiring certification and permission prior to any aircraft flight. The Austin ordinance’s broad definition of “aircraft” as any device “used or intended to be used for flight in the air” has been interpreted by the police to include drones. Austin Police Chief Art Acevedo warned SXSW attendees operating drones, either for commercial or personal use, that police would confiscate the aircraft and operators could face fines and jail time.

Violators of Augusta’s new ordinance face fines up to $1,000 and up to six months in jail, in addition to the confiscation of their drone.

Hobbyists have previously been less fettered by the FAA regarding recreational drone flights. Aerial views of the greens of Augusta National Golf Club, even without world class golfers, would have garnered lots of YouTube views. So long as the flights were conducted pursuant to general safety rules, they were permissible by the FAA. This came to a halt last week when the FAA began sending cease and desist letters that broadened the understanding of “commercial use.” The letter, sent to an individual on behalf of the FAA’s Tampa office, explained that posting drone flight video footage to YouTube.com is evidence of a commercial purpose and therefore unauthorized without the FAA’s express permission. Because YouTube receives advertising revenue from Google, the posting of the drone’s flight video on a commercial site in turn made the drone flight itself a “commercial” use. The FAA has the authority to impose fines¬†against individuals for unauthorized flights, but in this case the letter merely provided notice of the impacted FAA rules.

At the state level, Georgia’s legislature has so far declined to address either privacy or safety concerns with respect to drones and their video and data collection abilities. None of the three proposed drone-related bills currently pending before the General Assembly received a committee hearing much less passage out of their respective chamber by the 30th legislative day on March 13.

In any event, it is unclear whether cities or state legislatures have authority to impose broad drone flight prohibitions based on safety (not privacy) concerns.

The FAA has sole jurisdiction over regulating the national airspace for safety concerns. On the other hand, states and local governments may protect and regulate privacy concerns, such as when video may be collected and used. Perhaps the Augusta Commission should have cited fears that drone videos may capture golf player conversations with their caddies, invading their privacy and giving other players an unfair advantage. Or inadvertently capture video of players using banned substances without first obtaining a warrant as might be required by the Fourth Amendment. Then the ordinance might have made more sense, or at least not traipsed over FAA territory.

Unfortunately for drone hobbyists, there is little time between now and April 2 in which to mount a challenge to the prohibition. Not exactly check-mate for Augusta National’s Masters Tournament, but something pretty close.

 

Elizabeth Wharton is an attorney with the Atlanta firm of Hall Booth Smith.