Court likely to uphold city's ban on aerial ads

YOUR editorial on Saturday, Nov. 26, "Don't rely on court to uphold aerial ban," suggested that the 9th U.S. Circuit Court of Appeals might strike down Honolulu's ban on aerial advertising based on recent pronouncements of the Federal Aviation Administration. The City and County of Honolulu disagrees with this analysis and is confident that the aerial advertising ordinance will withstand the challenge that has been brought against it by the Center for Bio-Ethical Reform (CBR).

Honolulu's ban on aerial advertising was first enacted 35 years ago and is consistent with our community's prohibition on outdoor billboard advertising, which has been in place for almost 80 years. These prohibitions are important to protect the outstanding scenic vistas in our community, to reduce distractions for pedestrians and motorists, and to protect our economically important visitor industry.

Our community's prohibitions on aerial and outdoor billboard advertising are important to protect the scenic vistas, to reduce distractions for pedestrians and motorists, and to protect our visitor industry.

In 2002, the 9th Circuit upheld Honolulu's ban on aerial advertising in a case brought by Skysign International, explaining that "advertising is an area traditionally subject to regulation under the states' police power, and we therefore presume that federal law does not displace Honolulu's regulatory authority over advertising absent a clear statement of the federal intent to do so, either by Congress or by the FAA as Congress's delegate." Since then, in 2003, the chief deputy counsel for the FAA wrote to Senator Inouye with regard to the 2002 FAA pronouncements that your editorial referred to, stating explicitly that "The FAA does not interpret these changes to pre-empt sec. 40-6.1 of the Revised Ordinances of Honolulu, 'Aerial Advertising Prohibition.'"

Subsequently, the changes proposed in 2002 expired by their own terms without being incorporated into the FAA Handbook. A few minor changes were made in December 2004, but the handbook still says that "The operator is responsible for acquiring knowledge of state and local ordinances that may prohibit or restrict banner tow operations. FSDO (Flight Standards District Office) knowledge of such state and local ordinances is helpful in assisting applicants." The renewed Certificate of Authorization that the CBR obtained in February 2005 states plainly on its face that "This certificate ... does not constitute a waiver of any state law or local ordinance."

In his November 2004 decision, Chief Judge David A. Ezra ruled that Honolulu's ordinance was not pre-empted by federal law, explaining that "This Court sees no evidence that the Skysign opinion has been undermined by subsequent developments." Previously, visiting federal judge Ann Aiken (from Oregon) had rejected CBR's request for an injunction against Honolulu's ordinance, ruling similarly that the federal government's regulations do not prevent Honolulu from regulating aerial advertising. The reviewing panel of the Ninth Circuit affirmed her decision, noting that Judge Aiken's opinion was "thorough and well-reasoned."

Every judge who has examined this issue thus far has concluded that the federal regulations on flight navigation and safety are not designed to prevent Honolulu from enforcing its ban on aerial advertising, and the city believes that the current panel of appellate judges will reach the same conclusion.

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