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.
FAA FSIMS: CHAPTER 3 ISSUE A CERTIFICATE OF WAIVER OR AUTHORIZATION—14 CFR SECTION 91.311 (BANNER TOWING)
Section 1 Issue a Certificate of Waiver or Authorization—Section 91.311 (Banner Towing)
3-61 PROGRAM TRACKING AND REPORTING SUBSYSTEM (PTRS) ACTIVITY CODE. 1220.
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.
3-63 GENERAL.
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.”
Honolulu.gov ROH Chapter 40
Article 6. Aerial Advertising
Sections:
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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