FAA Says It Controls Airspace

In what could be a blow to Huntington Beach’s ban on banner-towing airplanes, the FAA has clarified that it has ultimate jurisdiction over airspace, according to evidence introduced Friday in a federal court challenge to the city’s ban.

Huntington Beach had joined Honolulu in enacting bans. But the Federal Aviation Administration’s clarification states that it -- not cities -- controls air traffic.

“The FAA just changed their regulations and are asserting their jurisdiction over banner towing,” said Greg Cunningham, executive director for the Center for Bio-Ethical Reform, which challenged the city’s ordinance on 1st Amendment grounds.

U.S. District Court Judge Alicemarie H. Stotler was not persuaded that the notice, which is in draft form, could be construed as a new regulation.

No FAA representatives were present in court. But an FAA spokesman said the changes have been in effect since the Oct. 7 notice was sent to flight-standards district offices nationwide.

Stotler set a hearing for Dec. 6, giving both sides time to determine the FAA’s authority and intent. A temporary restraining order against the ban was extended until the hearing.

“We barely got this notice by the FAA sent to us by opposing counsel yesterday,” said Sarah Lazarus, Huntington Beach deputy city attorney. “We have not had a chance to fully understand what it means.”

The notice, which came out of the FAA’s Flight Standards Service, states that it was written to clarify an earlier FAA order that included statements “that have been misinterpreted” to recognize the ability of state and local governments to police banner towing.

Beach communities have been stymied in their efforts to curb plane noise and banners because airspace is controlled by the FAA, which has long supported the right of the banner-towing planes to operate.

But a recent federal appeals court ruling upholding Honolulu’s ban on aerial advertising had given coastal towns hope that they could impose regulations, if not an outright ban.

Huntington Beach council members passed the ordinance because of complaints the airplanes were a noisy eyesore. The ordinance was to have taken effect Oct. 16.

Cunningham said he believes the FAA has taken action because it didn’t want new flight restrictions by many cities, “all different from each other,” which would hinder navigation.

He represents an antiabortion group that is waging a free-speech battle against the city. “This most likely will end in the city repealing its ordinance,” Cunningham said.