The Outdoor Circle issues cease-and-desist letter over aerial advertising

Honolulu mayor urges FAA to revoke waiver

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 cease-and-desist letter Thursday to Aerial Banners North for violation of state law and county ordinances, despite a certificate of waiver from the Federal Aviation Adminstration.

“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.

David Forman, director of the environmental law program at University of Hawaii’s William S. Richardson School of Law, agrees with The Outdoor Circle. “My understanding is that those waivers are typically granted in a fashion that doesn’t preempt state or local laws,” he said.

Forman says history is against Aerial Banners North and it will be fighting a legal uphill battle. “These issues were all addressed in a 2002 litigation and 2006 decisions by the 9th Circuit Court of Appeals and said that with respect to the issue of aerial advertising federal law does not preempt state and local laws,” he said.

But the company remains undeterred.

“They’re not an enforcing body for any type of municipal or state authority. Beyond that, the federal government has already asserted that what Aerial Banners is doing is lawful and therefore there’s no grounds to stop Aerial Banners North from flying,” said Michael McAllister, chief legal counsel for Aerial Banners North.

Aerial Banners North says it plans to fly with the American flag Friday, in honor of Independence Day.

If so, The Outdoor Circle says the company will be cited. The fine is up to $500 per violation as well as three months in jail.

The Outdoor Circle says Aerial Banners North could also be cited for previous flights. “We recognize that this kind of activity is like the coqui frog of visual blight and that, if we don’t prevent this from getting established, it would be much harder to eradicate in the future,” Townsend said.

Honolulu Mayor Kirk Caldwell sent a letter late Thursday to the FAA noting that the city’s ordinance banning aerial advertising has been upheld by the U.S. 9th Circuit Court of Appeals and urging the FAA to immediately revoke the certificate of waiver. He also asked residents to report illegal aerial advertising to police.

“What this company is doing is illegal and we’re going to put a stop to it,” Caldwell said.  “Aerial advertising is illegal in Honolulu, and our law prohibiting it has been upheld by the 9th Circuit Court of Appeals. There should be no question about it. I urge the FAA to immediately revoke its certificate of waiver, which applies to federal regulations only and not to the city’s ordinance.”

Read Mayor Caldwell’s letter to the FAA below:

Dear Mr. Gregor:

We have been informed of statements attributed to you regarding recent actions by Aerial Banners North, Inc. (“ABN”), which is conducting aerial advertising in violation of the City and County of Honolulu, Revised Ordinances of Honolulu (“ROH”), Section 40-6.1. You were quoted as stating:

“The FAA issued a waiver for the company to conduct banner towing operations.  Under federal law, the FAA has sole jurisdiction over all the civilian airspace in the country” – Ian Gregor, Federal Aviation Administration.

As you may be aware, the City was involved in two protracted litigation cases that clearly determined that the Federal Aviation Administration’s (“FAA”) regulations do not prohibit nor preempt the provisions of ROH Section 40-6.1, the City’s Aerial Advertising prohibition. We refer you to the following cases; Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir. 2002) and Center for Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455 F.3d 910 (9th Cir. 2006).  In addition, as part of the Center for Bio-Ethical Reform, Inc. case, your office clearly stated that FAA does not preempt the provisions of ROH Section 40-61; please see the attached letter dated July 31, 2003.  Our review of your current guidelines for issuance of a certificate of waiver or authorization for aircraft banner tow operations indicates that such guidelines have not changed since the court decisions on this issue.

In light of the above, the City asks that the FAA revoke the certificate of waiver issued to ABN, based upon attestations made to the City by ABN’s counsel of “open and notorious” banner towing and upon the finding of the FAA that ABN has not complied with the terms of ABN’s certificate issued by the FAA.

The City looks forward to your clarification of the above-quoted statement of preemption of local laws.

Aloha,

Kirk Caldwell
Mayor


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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