Mayor Kirk Caldwell sent a letter to the Federal Aviation Administration on Thursday urging it to revoke a waiver it issued to an aerial advertising company to operate in Hawaii, according to a press release from the mayor’s office. The mayor stressed that the city’s ban on aerial banners had been upheld by the U.S. 9th Circuit Court of Appeals.

Aerial Banners North, Inc., based in Hillsborough, New Jersey, has stirred controversy in recent weeks for its aerial advertising in East Oahu and the North Shore, which violates a city law that has been in place since 1978. The company’s plane has been spotted carting an American flag on Memorial Day and an ad for its company web site.

A company attorney told KHON earlier this week that federal law preempts state and county laws related to aerial advertising. But Caldwell, as well as The Outdoor Circle, a local nonprofit that has led the movement against outdoor advertising and billboards, doesn’t see it that way.

“What this company is doing is illegal and we’re going to put a stop to it,” Caldwell said in the press release. “Aerial advertising is illegal in Honolulu, and our law prohibiting it has been upheld by the 9^th 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.”

Caldwell is urging residents to call 911 to alert the Honolulu Police Department if they see an aerial adverting banner.

Earlier this week, The Outdoor Circle sent a cease and desist letter to the company.

Marti Townsend, the group’s executive director and an attorney, said that the company intends to fly banners this holiday weekend and has been soliciting local businesses for ad space.

Neither officials from the FAA or Aerial Banners North could be immediately reached for comment.

Townsend said that recent statements by the FAA’s public affairs officer related to the legality of the company’s operations have been confusing.

“The issue is whether the FAA has sole authority over airspace for everything, or just in terms of safety regulations and access,” Townsend said by email. “The consensus that appears to be emerging is that the FAA has not ‘preempted’ states and counties from regulating aerial advertising.  Rather, what has changed is that the FAA will no longer help to enforce state and county laws that are outside the FAA’s authority, such as advertising laws.”

You can read Caldwell’s letter here: 

Mr. Ian Gregor

United States Department of Transportation

Federal Aviation Administration

Western-Pacific Region

15000 Aviation Boulevard

Hawthorne, California  90261

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

Attachment

cc:           The Honorable Florence T. Nakakuni, U.S. Attorney

                Louis M. Kealoha, Chief of Police

                Keith M. Kaneshiro, Prosecuting Attorney

                Donna Y. L. Leong, Corporation Counsel