FAA: Waiver doesn’t trump local law

On Monday, the Federal Aviation Administration (FAA) clarified that a waiver granted to Aerial Banners North (ABN) which authorizes the company to conduct banner towing operations nationwide, “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 operator’s responsibility to resolve the matter.”

In response, environmental advocacy group the Outdoor Circle sent a second cease and desist letter to the air-born banner advertising company (the first was sent last Thursday). The environmental advocacy group says it expects the City and County of Honolulu to “prosecute violations of Honolulu’s longstanding ban on aerial advertising to the full extent of the law.”

“The City has all of the tools it needs to immediately stop illegal aerial advertising in O‘ahu’s skies,” said Marti Townsend, Executive Director of The Outdoor Circle. “We know the Mayor supports protecting Honolulu’s natural beauty and that is why we look forward to supporting him as he takes every necessary step to prevent further flagrant violations of our enviable sign laws.”

The FAA sent an emailed statement to the Hawaii Independent today with further clarification:

“Last week, published reports gave the impression that the Federal Aviation Administration asserted that its statutes, governing the use of the national airspace, preempted Honolulu’s ordinance governing advertising. These reports did not accurately reflect the FAA’s position. The application of these ordinances has been twice upheld by the United States Court of Appeals for the Ninth Circuit.”

“We appreciate the FAA’s support in clarifying our original interpretation of the new FAA regulations that make clear a waiver from the FAA is not a waiver from local laws,” Townsend said. “It is now up to the City to ensure that these local laws are fully enforced and fines for violating our laws do not become just the cost of doing business here.”

Mayor Kirk Caldwell sent a letter to the FAA on Thursday urging the agency to revoke the waiver it granted to Aerial Banners North. “What this company is doing is illegal and we’re going to put a stop to it,” Caldwell said on Thursday. “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.”

David Forman, director of the environmental law program at University of Hawaii’s William S. Richardson School of Law, also cites the 9th Circuit Court of Appeals decision in his position on the matter: “These issues were all addressed in a 2002 litigation and 2006 decisions by the 9th Circuit Court of Appeals [which] said that, with respect to the issue of aerial advertising, federal law does not preempt state and local laws.”

On Friday, a contracted pilot flying an ABN plane towing an American flag was cited with a $500 fine, according to the Honolulu Police Department.

After the citation on Friday, ABN’s chief legal counsel, Michael McAllister, said the company would continue its plans to begin towing advertisements through the skies above O‘ahu and would “vigorously defend any action against it.” However, with the FAA confirming that state and local laws do, in fact, trump the waiver, it would appear that ABN’s legal position is rapidly deteriorating.

“This quagmire highlights the importance of upholding our billboard ban. Honolulu cannot afford to weaken its position against intrusive forms of advertising that undermine our natural environment and scenic beauty, regardless if they show up on buildings, buses, or bi-planes,” said Townsend.

The Outdoor Circle helped establish the billboard ban in Hawai‘i in 1927. Updates to this law over the years has ensured that it applies to modern variations on billboards, including aerial advertising.

Editor’s note: Marti Townsend is married to Ikaika Hussey, publisher of the Hawaii Independent.