The Outdoor Circle is taking action against Aerial Banners North
after the company flew two different banners over Oahu’s skies in the
past two months.
On Memorial Day, a small plane was spotted carrying the American
flag. Then, over the weekend, it took to the sky again — this
time with a banner advertising the company’s website.
The Outdoor Circle sent a formal cease-and-desist letter Thursday to Aerial Banners North for violation of state law and county ordinances.
“Aerial Banners North is under the misbelief that a certificate of
waiver issued to it by the Federal Aviation Administration for aerial
banner towing activities entitles the company to fly advertisements in
Hawaiian skies regardless of Hawaii’s laws. A review of FAA regulations
makes clear this is not the case,” the organization said in a media
release Thursday.
“We have been close communication with City officials and have
forwarded eye-witness reports of aerial advertising to them with the
expectation that they will immediately enforce the county aerial
advertising ban,” said Marti Townsend, executive director of The
Outdoor Circle.
The
letter specifically points out Federal Aviation Administration Air
Traffic Organization Policy §18-1-2(d) (FAAO JO 7210.37, April 3, 2014)
The grant of a Certificate of Waiver or Authorization
constitutes relief from the specific regulations stated, to the degree
and for the period of time specified in the certificate, and does not
waive any state law or local ordinance. Should the proposed operations
conflict with any state law or local ordinance, or require permission of
local authorities or property owners, it is the applicant’s
responsibility to resolve the matter.
A city ordinance, ROH § 40-6.1(a), passed in 2005, made any type of aerial advertising in Honolulu illegal.
However, the FAA told KHON2 Wednesday 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 company says it plans to fly with the American flag Friday, in honor of Independence Day.
Stay with KHON2.com for updates and watch the full story on KHON2 News at 5 and 6 p.m.
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.
Story and Photo: http://khon2.com
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