Banner-tow ban could set perilous precedent

 - May 7, 2008, 10:30 AM

A ban by the coastal California city of Huntington Beach on all aerial advertising flights in its airspace is believed to be the first of its kind in the U.S. The law–should it survive legal challenges, one of which was filed even before the ordinance became effective on October 16–could set a precedent with profound implications for general aviation.

Despite the FAA’s long-established jurisdiction over navigable airspace, the city council claimed the right to regulate and even forbid flight above the surface within its city limits and up to three miles offshore. Citing safety and a need to control noise and pollution from overflights–specifically by banner-towing aircraft–the city of 190,000 has made it punishable by fines of up to $1,000 to fly over the city at any altitude from the surface to infinity. The ordinance specifies banner towing, externally mounted signs and light arrays on any airborne platform, but does not prohibit skywriting or commercial sightseeing flights. Neither does it delineate aircraft by size, weight or engine power.

Challenges to the law arose immediately after its September 16 passage. One operator, Bob Dobry, whose Aerial Promotions flies eight banner-towing Bellanca Scouts along the Orange County coastline from nearby Long Beach Municipal Airport, vowed to test the law immediately. “The FAA controls the airspace, not local governments. That’s why we’ll be flying on October 16,” he told AIN early last month. “Huntington Beach is discriminating against our segment of general aviation. I want them to arrest me.” Dobry predicted that if the city prevails in court and the flight ban stands, “You can kiss general aviation goodbye.”

On October 1 a Los Angeles-based right-to-life organization, The Center For Bio-Ethical Reform, filed a federal district court suit claiming that banning aerial advertising violates the First Amendment.

Huntington Beach’s ban is based on a law enacted by the city and county of Honolulu, Hawaii. The California ordinance’s architects believe a U.S. 9th Circuit Court decision upholding the Honolulu statute protects their measure from being overturned. The Honolulu aerial advertising ban and the California measure based upon it rely on what the 9th Circuit saw as implied FAA transfer of jurisdiction over airspace through language in the certificates of waiver that relieve operators of certain altitude limitations. “That is not the intent of the FAA,” said Western Region spokesman Jerry Snyder. “That’s why it’s being reviewed in Washington.” He said the words stating that aerial advertising operators understand and will obey local ordinances may be revised or deleted from the FAA inspectors’ field handbook. Snyder said the review is expected to be completed within a month.

Bob Wheeler of the Huntington Beach city attorney’s office advised the council before the ordinance was passed that it could withstand challenges on FAA preemption
and constitutional grounds. Wheeler said that by not specifying altitudes or noise levels the law will avoid federal preemption. He added that as a “content neutral” ban on all use of a given communication medium it does not discriminate between “approved” and “disapproved” speech. He advised the council that because it serves a “compelling government interest,” the law is likely to survive a 14th Amendment equal protection challenge.