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Nashville aerial advertising ban fails in metro after concerns

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A proposal that would have banned banner tow plows from advertising in the Nashville skies failed Tuesday night after members of the Metro Council feared the measure would be difficult to enforce and anticipated by the federal government.

Councilor Colby Sledge, who sponsored the bill, said its legislation aims to reduce air and noise pollution in Metro Nashville and reduce the distraction of drivers on the ground.

“Aerial advertising distracts drivers on the ground, can create unwanted noise from low-flying planes, and detract from the aesthetics of the city by overcrowding the skyline,” the bill said.

“We started seeing more of this … right before the pandemic,” Sledge said during a Metro committee meeting in early June. “The problem was that there was one of these (flights) every weekend, these planes will fly over the entire city center.”

However, some council members had concerns about how the city might enforce the ban, saying it was hard to know which flights would fly across the skies of Nashville.

Councilor Colby Sledge speaks during a February 2020 meeting of the Metro Council.

The bill also raised concerns with the Nashville Airport Authority. In a letter Monday to Vice Mayor Jim Shulman, Tom Jurkovich, the agency’s vice president of communications and public affairs, warned the council that the local ordinance could violate state regulation of airspace, which is entirely under federal jurisdiction.

“Air recruiters and industry groups like the Aircraft Owners and Pilots Association would likely speak out against the regulation and challenge it if passed,” the letter said.

This is how the calculation would have worked

The bill was originally tabled in 2019, but Sledge said he decided to postpone it after two Tennessee Congressmen – U.S. Senator Marsha Blackburn, a Republican, and U.S. Rep. Steve Cohen, a Democrat – did one in November Introduced a bill that would allow the federal government to limit overpasses during concerts and events in stadiums. The bill died in Congress without getting a vote.

“As soon as things reopened downtown, we had four straight weekends in March and April with planes flying again from Friday to Sunday,” he said during the June committee meeting.

Those who break the ordinance would be cited by law and fined $ 50 for any offense unless they take the ad off within seven days of receiving the quote.

The ordinance, which would have banned the ban on in-air advertising in the form of painting, writing, banners, and more, primarily targets banner-towing plows, Sledge said.

According to the rules, hot air balloons with advertising media or signs on the outside would have been prohibited, according to the clarification of Metro’s legal advisor. Advertising in the form of skywriting would also have been prohibited.

The regulations would exempt advertisements placed on an aircraft or printed logos and trademarks outside of an aircraft.

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The Federal Aviation Administration has placed restrictions on aerial advertising. Federal regulations require banner tow plows to fly at least 1,000 feet over “congested areas” – as the FAA defines “on a case-by-case basis”. You cannot fly over “open air gatherings”.

To address concerns that the bill might violate the rights of the First Amendment, Sledge referred to federal court opinions published in two lawsuits against the city and county of Honolulu, where the city had bylaws banning aerial advertising . In both cases, the Ninth District Court of Appeals upheld the ordinances and said they were not in violation of the First Amendment.

Concerns from Council Members

But the local airport authority and some council members questioned whether federal regulations anticipate the ordinance.

“The FAA is widely viewed as ‘occupying the field’ of airspace regulation, and local ordinances that conflict with the regulation of airspace by the FAA are anticipated by federal law,” Jurkovich said in his letter.

The Honolulu case cannot be compared to Sledge’s proposal, argued Jurkovich. The lawsuit took place 15 years ago on the basis of federal regulations that are no longer in force, he said. Apart from Honolulu, no other metropolitan area has imposed a “permanent and comprehensive ban on aerial advertising,” he said.

If the council passes the regulation, lawsuits could follow, Jurkovich said.

Burkley Allen, a member of the At-Large Council, shared the concern.

“Are we putting ourselves in any kind of danger or liability if we do this?” she asked on Tuesday. “If there are consequences that we are not aware of, we should proceed with caution.”

Councilor Kevin Rhoten questioned the enforceability of the regulation if it were passed.

“If someone takes off from Lebanon Airport, if someone takes off from Bowling Green Airport, does Metro Codes have to track them down the interstate until they land?” he said. “Who will enforce this?”

Metro Council chief Jon Cooper said Tuesday night enforcement would look almost like a “polite solicitation” at airports.

“It would be difficult to actually enforce from a local perspective,” he said.

Reach out to Yue Stella Yu at yyu@tennessean.com and on Twitter @bystellayu_tnsn.

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