Aerial banners leads into a war of words

The battle to keep aerial advertising out of Oahu has turned into a war of words.

KHON2 was the first to air this story after a viewer notified us through our Report It feature on our website. Aerial Banners North flew its plane yesterday with a banner that read, “Can’t we get along.”

The mayor calls it a poke in the eyes of all Oahu residents.

In the meantime, the FAA has now changed its stance and is siding with the city on the issue.

KHON2 has been digging into the story for the past week.

Aerial Banners North took advantage of having a large audience on the beaches on July 4th. The pilot was then cited by HPD. That did not stop the company from flying on Sunday, once with the “Can’t We Get Along” banner, and later in the day with the American flag and “God Bless USA” banner. The mayor says it was disappointing.

“In a way don’t you find it to be a very flagrant in your face kind of statement? They’re playing games with our constitution with our natural beauty something that all of us here in Hawaii appreciate,” said Caldwell.

Mayor Caldwell says the pilot from Sunday’s flight has not been cited because the plane landed somewhere else instead of Kalaeloa Airport.

The maximum penalty is a $500 fine and up to three months in jail. The mayor says the city will follow through with citing both the pilot and the company.

“I believe they poke the finger in the eyes of all of us on this island who want and respect our natural beauty and therefore they’re going to face the consequences,” said Caldwell.

ABN responded by saying it,

“Takes the first amendment very seriously and also believes there is room for levity when a mountain is being made of a molehill.”

The mayor has also asked the FAA to revoke ABN’s waiver, which the company says allows it to fly its banners legally.

But the FAA now points out that the waiver “does not waive any state or local ordinance. And that it is the operator’s responsibility to resolve the matter.” This changes the FAA’s position which first told us that federal law trumps state and county laws.

Still, ABN is sticking to its position, saying it has “followed all FAA processes and is flying lawfully in Hawaii.”

The mayor says previous challenges have been upheld by the 9th Circuit Court of Appeals and is counting on the same outcome with this latest battle.

The company says it has contacted both the prosecutor’s office, the city clerk and HPD explaining its position, but has not had not any contact with the mayor’s office or the Outdoor Circle, which is also trying to stop ABN from flying here.


The Outdoor Circle’s cease-and-desist letter

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.

Mayor Caldwell’s letter to the FAA:

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.

§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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