Thursday, July 03, 2014

Federal Aviation Administration responds after aerial advertising controversy

Is aerial advertising in Hawaii legal or against the law?

According to the Federal Aviation Administration, Aerial Banners North is allowed to fly despite a city ordinance against aerial advertising.

The FAA said Wednesday that the company was granted a certificate of waiver that trumps any law on the state or county level.

Aerial Banners North flew a small plane with a banner advertising its website over the weekend and the American flag on Memorial Day.

The Outdoor Circle previously told KHON2 it received dozens of complaints as the plane was seen on East and Windward Oahu and the North Shore, especially after a city law passed in 2005 made any type of aerial advertising in Honolulu illegal.

The FAA says it issued a waiver for the company to conduct banner towing operations, and that under federal law, the administration has sole jurisdiction over all civilian airspace in the country.

The Outdoor Circle is still looking into how it can stop the company from advertising in Hawaii’s skies.

“There is no right per se to advertising. It is a privilege that is regulated and in Hawaii, unlike any other place in the world, we hold our natural beauty above all else,” said Marti Townsend of The Outdoor Circle.

It is not clear what if anything can be done to stop the company from advertising.

The FAA says other companies can also receive waivers as long as they demonstrate that they are able to operate safety and comply with the provisions in the waiver.


Section 1 Issue a Certificate of Waiver or Authorization—Section 91.311 (Banner Towing)


3-62 OBJECTIVE. The objective of this task is to determine if an applicant is eligible for issuance of a certificate of waiver or authorization for banner tow operations. Successful completion of this task results in issuance of a certificate or disapproval of the application.

A. Authority. Title 14 of the Code of Federal Regulations (14 CFR) part 91, § 91.311, provides for the issuance of a Certificate of Waiver or Authorization for aircraft banner tow operations.

B. Definition. A banner is an advertising medium supported by a temporary framework attached externally to the aircraft and towed behind the aircraft.

C. Eligibility. Operators of either standard or restricted category aircraft may apply for a certificate to engage in banner tow operations. Operators of restricted category aircraft may also be required to operate under the provisions of a waiver to § 91.313(e).

D. Federal Statutory Mandates. See Figure 3-14, PL 108-109, Section 521, Reference Information: Public Laws Associated with Tasks of this Handbook, for guidance regarding applicable statutory mandates for banner tow operations.

E. Forms Used. Federal Aviation Administration (FAA) Form 7711-2, Application for a Certificate of Waiver or Authorization (see Figure 3-6), is a multipurpose form used to apply for FAA Form 7711-1, Certificate of Waiver or Authorization (See Figure 3-7.) The Blocks that apply to banner tow operations are listed in subparagraph 3-68 C.

F. Submission. An applicant requesting a certificate is responsible for the completion and submission of FAA Form 7711-2. The application should be submitted a minimum of 30 days before the banner tow activity will take place. §445-113 Regulation by counties. Except for outdoor advertising devices authorized under section 445-112(16) and (17), the several counties may adopt ordinances regulating billboards and outdoor advertising devices not prohibited by sections 445-111 to 445-121. The ordinances may:

(3) Prohibit the erection or maintenance of any type of billboard or the displaying of any outdoor advertising device in particular parts, or in all parts, of the county; provided that the prohibition shall not apply to any official notice or sign described in section 445-112(1); and provided further that, unless a county ordinance specifies otherwise, the prohibition shall extend to billboards or outdoor advertising devices located in the airspace or waters beyond the boundaries of the county that are visible from any public highway, park, or other public place located within the county; 

“Ordinance prohibiting aerial advertising did not violate the First Amendment or the equal protection clause of the Fourteenth Amendment. Honolulu’s airspace was a nonpublic forum, and the ordinance was reasonable, viewpoint neutral, and rationally related to legitimate governmental interests. 455 F.3d 910.” ROH Chapter 40

Article 6. Aerial Advertising


40-6.1 Prohibited–Exceptions.

40-6.2 Violation–Penalty.

Sec. 40-6.1 Prohibited–Exceptions.

(a) Except as allowed under subsection (b), no person shall use any type of aircraft or other self-propelled or buoyant airborne object to display in any manner or for any purpose whatsoever any sign or advertising device. For the purpose of this section, a “sign or advertising device” includes, but is not limited to, a poster, banner, writing, picture, painting, light, model, display, emblem, notice, illustration, insignia, symbol or any other form of advertising sign or device.

(b) Exceptions.

(1) Subsection (a) shall not prohibit the display of an identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft or self-propelled or buoyant airborne object if the displayed item is under the ownership or registration of the aircraft’s or airborne object’s owner.

(2) Subsection (a) shall not prohibit the display of a sign or advertising device placed wholly and visible only within the interior of an aircraft or self-propelled or buoyant airborne object.

(3) Subsection (a) shall not apply to the display of a sign or advertising device when placed on or attached to any ground, building, or structure and subject to regulation under Chapter 21 or 41. Such a sign or advertising device shall be permitted, prohibited, or otherwise regulated as provided under the applicable chapter.

(Sec. 13-32.1, R.O. 1978 (1983 Ed.); Am. Ord. 96-33) Sec. 40-6.2 Violation–Penalty. Any person who violates any provision of this article shall, upon conviction, be punished by a fine not less than $25.00 nor more than $500.00, or by imprisonment not exceeding three months, or by both. (Sec. 13-32.2, R.O. 1978 (1983 Ed.)) 

 United States Court of Appeals,Ninth Circuit. CENTER FOR BIO-ETHICAL REFORM, INC.;  Gregg Cunningham, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU;  Peter Carlisle, in his official capacity as the City and County of Honolulu Prosecuting Attorney;  Boisse P. Correa, in his official capacity as Chief of Police, Honolulu Police Department, successor to Lee D. Donohue, Defendants-Appellees. No. 04-17496.

The City and County of Honolulu, Hawaii (“Honolulu”), has a long history of comprehensive regulatory oversight over its visual landscape, an effort designed to protect the area’s unique and widely-renowned scenic resources.   For example, in 1957, Honolulu was among the first municipalities to enact a comprehensive ordinance regulating signs, see State v. Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825, 826 (1967), and, in 1978, Honolulu first passed what later became Revised Ordinance of Honolulu § 40-6.1 (1996) (“the Ordinance”), which prohibits aerial advertising.

The question presented in this appeal is whether the Ordinance may be used to restrict an advocacy group from towing aerial banners over the beaches of Honolulu. To answer this question, we must first decide whether the Ordinance is preempted by federal law, and, if not, whether it passes constitutional scrutiny under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Less than five years ago, we answered the preemption question in the negative. Skysign Int’l, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir.2002). Nothing presented in this appeal persuades us that we should depart from that precedent. As to the constitutional question, we hold that the Ordinance passes constitutional muster. The Ordinance is a reasonable and viewpoint neutral restriction on speech in a nonpublic forum, and the banner towing prohibited by the Ordinance is neither a historically important form of communication nor speech that has unique identifying attributes for which there is no practical substitute. We affirm the district court’s grant of summary judgment in favor of Honolulu.

The district court properly granted Honolulu’s motion for summary judgment. Federal law does not preempt the Ordinance. Nor does the Ordinance violate the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. Honolulu’s airspace is a nonpublic forum, and the Ordinance is reasonable, viewpoint neutral, and rationally related to legitimate governmental interests. 

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