Aerial advertising ban under study in Austin, Texas

August 1, 2013

AOPA, citing the FAA’s authority to regulate the nation’s airspace, has asked officials in Austin, Texas, to reconsider plans to draft an ordinance that would restrict or prohibit aerial advertising activity, such as banner-towing flights

In a July 22 letter to City Manager Marc A. Ott, AOPA urged that officials of the Texas capital city “recognize the FAA’s authority and obligation to regulate navigable airspace as Congress intended.”  Local attempts to ban aerial advertising directly contradict that authority, which is conferred on the agency “in the interest of the safety and efficiency of the public,” wrote Melissa McCaffrey, AOPA senior government analyst for air traffic services

On June 27, the Austin City Council approved a resolution “directing the City Manager to determine if any legal barriers that would prevent the City from enacting an ordinance restricting or prohibiting aerial advertising and, if no such barriers exist, to draft such an ordinance for consideration by the City Council by August 29, 2013.”

The Texas capital city’s effort to restrict airspace activity is under consideration shortly after a Pennsylvania aviation business was successful in its court bid to dismiss a fine levied under a similar ordinance

The Austin resolution states that the city has “developed a reputation as a world-wide venue for music and other events” and that aerial advertising would be “disruptive” to events and residents.

It notes that a U.S. Court of Appeals upheld a Hawaii ordinance against challenges.

AOPA, however, pointed out that the case addressed Constitutional free speech arguments, not the “sovereignty and use of airspace” provisions of statutes that vest authority to regulate aerial activity in the FAA.

The timeline of Austin’s move to study creating an aerial advertising ban overlaps a case in which a district judge in Pennsylvania acted July 17 to dismiss a $1,000 fine levied in April against a flight school and FBO by Radnor Township for allegedly violating a local banner-towing ordinance. The flight school hired an attorney to contest the summons, because “this affects everybody in aviation, not just us,” a company owner told AOPA.

AOPA supported Valley Aviation’s challenge with a letter to local officials.

The association has also pointed in such cases that local ordinances are unrealistic because pilots would not be able to familiarize themselves with the rules for every city and town that a flight may pass over—one of the reasons why sole authority to regulate airspace rests with the FAA, McCaffrey said.