Despite being issued a cease-and-desist letter, along with involvement from the mayor, the company Aerial Banners North (ABN) took to the skies on Friday.
KHON2 News was the first to tell you about the company flying banners over Oahu after a viewer brought it to our attention through the Report It feature on our website.
Aerial ads are illegal under state and county laws, but the company received a waiver from the Federal Aviation Administration (FAA).
Still, the Outdoor Circle issued a cease and desist letter, and Honolulu Mayor Kirk Caldwell says he wants the advertising to stop.
But Aerial Banners North says the mayor is just playing politics. In their view, the city has no jurisdiction, so the company will keep flying.
With Kailua Beach park packed with people for the Friday 4th of July holiday, the Aerial Banners North plane made a few passes, towing the American flag and a sign that read ABN Loves America, although the A looked more like an H.
Nonetheless, the deed was done and Mayor Caldwell says the company should be prosecuted.
“Should a police officer see the advertising,” the mayor said, “he will cite the pilot and the owner, then we’ll prosecute to the full extent of the law. It’s a criminal offense here, we take it seriously, and we’re going to enforce our ordinance.”
The mayor has also sent a letter to the FAA, asking to revoke the company’s waiver.
A spokesman for ABN said “the Mayor’s letter to the FAA is simply politics … and the issue could not be any clearer. ABN is properly authorized to fly banners lawfully in Hawaii.”
In the past, the mayor has asked the City Council to change the law to allow ads on city buses in order to raise money, but he says the aerial advertising is just plain wrong.
“We don’t like it when someone from outside of our state comes in and tries to tell us that they’re going to ignore these laws or that they’re going to follow some other law somewhere else.”
Today’s beach goers had mixed reactions.
“It doesn’t bother me,” said Kailua resident Mike Dudley. “I see that on the mainland, towing a banner that says some advertisement.”
“It’s temporary. They’re just flying it across and that’s nothing wrong with that,” Norine Baker of Wahiawa said. “I think it’s smart business, smart marketing.”
Some folks we spoke with said it’s alright to see the banners once in a while but they’re afraid more companies will come here and they’ll see it all the time.
“I don’t think we should have it because, if that starts, then who knows what else starts, like other kinds of flying billboards, and you got planes just flying all around,” said Kailua resident Kekumu Cambra.
“It’s going to take away from people coming here and enjoying what Hawaii is all about,” said Patty Palaualelo of Kaneohe.
Aerial Banners North does plan to fly on Saturday.
The Outdoor Circle’s cease-and-desist letter:
“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
“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.”
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.
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.
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.
§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
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.