Thursday, January 10, 2002
Cities May Regulate Advertising Borne by Aircraft, Ninth Circuit Rules
By a MetNews Staff Writer
Municipal regulation of advertisements borne by aircraft is not preempted by federal aviation law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court affirmed a district judge’s order dismissing a challenge to a Honolulu ordinance barring the use of aircraft to display “any sign or advertising device.” The City Council expressly enacted the ordinance to protect the public from the potential of traffic accidents caused by distracted motorists.
The ordinance was challenged by Skysign International, Inc., a local firm that was fined several times by Honolulu authorities for violating the ordinance before it ceased operations.
Skysign argued that a Federal Aviation Administration waiver allowing it to engage in “Night Time Aerial Advertising” without regard to regulations barring advertising flights in certain areas took precedence over the ordinance.
U.S. District Judge Helen Gillmor of the District of Hawaii held that Skysign lacked standing to challenge the ordinance because there was no showing that it was likely to resume operations. Alternatively, she ruled that there was no preemption because the FAA waiver was expressly subject to local laws.
Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, said the district judge was wrong about standing—the complaint, he said, could be read as alleging that the ordinance was the cause of Skysign’s ceasing to do business, and that if the ordinance were invalidated, the company might resume operations—but correct about preemption.
“Skysign asserts that federal law operates to bar Honolulu from implementing restrictions on aerial advertising,” the judge wrote. “However, 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.”
Nether Congress nor the agency, the judge went on to say, has indicated an intent to preempt the field of airborne advertising regulation. While the FAA is authorized to enact regulations to protect “individuals and property on the ground,” O’Scannlain wrote, the law does not “preclude local regulation with an identical purpose that does not actually reach into the forbidden, exclusively federal areas, such as flight paths, hours, or altitudes.”
Senior Judge David R. Thompson and Judge A. Wallace Tashima concurred in the opinion.
The case is Skysign International, Inc. v. City and County of Honolulu, 99-15974.
Copyright 2002, Metropolitan News Company