Aerial advertising has been illegal in Hawaii since 2005, but it was seen in the skies over the weekend.
A viewer notified KHON2 via Report It — a small yellow plane was flying around Oahu with a banner with a website address.
While many, including the Outdoor Circle, say what Aerial Banners North is doing is illegal, the company says it got a waiver from the federal government and plans to continue advertising in the air.
KHON2 first spotted Aerial Banners North on Memorial Day, flying a plane that carried the American flag. But over the weekend, that same plane was seen carrying a banner for its website around Kailua, East Oahu and the North Shore.
The Outdoor Circle says it received dozens of complaints.
“People were outraged to say the least. The quality of the emails and the phone calls that we’re getting, people are deeply offended that this is happening, that this business would even consider taking this route,” said executive director Marti Townsend.
Townsend says there is a state law on aerial advertising and each county has its own ordinance to reinforce a ban.
But Aerial Banners North says it received a waiver from the Federal Aviation Administration allowing the company to use the air space for this purpose.
“Aerial Banners North, my client, possesses this permit and is therefore authorized to fly banners in Hawaii because federal law is supreme over state law or local ordinances, as the case is here,” said chief legal counsel Michael McAllister.
“The thing is, it’s really frustrating for someone to come from outside Hawaii with the intent of changing our laws,” Townsend countered.
If Aerial Banners North has found a loophole to the law, then the Outdoor Circle says it plans to close it right away.
In the meantime, the company plans to do business as it’s done all around the country.
“The plan is definitely to launch in Hawaii. It’s well received across the country and we believe that Hawaii is going to like having us once they’ve got it as well,” said McAllister.
People KHON2 spoke with weren’t quite ready to embrace the idea.
“I just think it doesn’t belong here. I don’t think it’s part of the beauty of this place,” said Los Angeles resident Kevin St. Clair.
“Having all these banners come out kind of ruins it, kind of ruins the mood of how it is out here,” said Pearl City resident Byron Alde.
The Outdoor Circle says it plans to fight this to the full extent of the law.
KHON2 has yet to confirm with the FAA whether the waiver supercedes state and county laws, but if the company is in violation, it could face fines ranging from $200-$5,000.
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.
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.”
Article 6. Aerial Advertising
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.
(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.