Digital Signs and Billboards: Crafting and Enforcing Local Regulations Evaluating Siting Issues, Environmental Concerns and Revenue Sharing Opportunities

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WEDNESDAY, DECEMBER 11, 2013

Presenting a live 90-minute webinar with interactive Q&A

Susan L. Trevarthen, Member, Weiss Serota Helfman Pastoriza Cole & Boniske, Fort Lauderdale, Fla.

William D. Brinton, Shareholder, Rogers Towers, Jacksonville, Fla.

Randal R. Morrison, Partner, Sabine & Morrison, San Diego

Jerry Wachtel, President, The Veridian Group, Berkeley, Calif.

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Digital Signs and Billboards: Crafting and Enforcing Defensible Local Regulations Susan L. Trevarthen, Esq., A.I.C.P. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. Ft. Lauderdale, FL * 954-763-4242 * @SusanTrevarthen STrevarthen@wsh-law.com * www.wsh-law.com

William D. Brinton, Esq. Rogers Towers, PA * Jacksonville, FL * 904-398-3911 wbrinton@rtlaw.com * www.rtlaw.com

Randal R. Morrison, Esq. Sabine & Morrison * PO Box 531518 San Diego CA * 92153-1518 * 619-234-2864 www.signlaw.com * rrmsignlaw@gmail.com

Jerry Wachtel, C.P.E. The Veridian Group, Inc. * Berkeley, CA * 510-848-0250 jerry@veridiangroup.com * www.veridiangroup.com

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Constitutional Basics of Sign Regulation

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The First Amendment (1791)

Congress shall make no law: [1-2] respecting an establishment of religion, or

prohibiting the free exercise thereof; or [3-4] abridging the freedom of speech, or of the press; or [5-6] the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

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First Amendment and Sign Regulation

Fourteenth Amendment makes the First applicable to all levels of government

Freedom of Speech clause Most state constitutions have corresponding

protections Some state courts say the protection is

broader under the state constitution • Most extreme example: Oregon

Protected Speech, Expressive

Conduct

Lower Level Protection

Not Protected

Flag desecration Racist/sexist comments Political Religious Social commentary “God Hates Fags” Blasphemy/heresy

Commercial Speech Erotic or Adult Entertainment that does not meet the legal definition of “obscene”

Defamation Obscenity or child pornography Perjury Fighting words Criminal conspiracies Threatening life of President or VP Violent or destructive acts Deceptive commercial speech

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Standard of Review Typical Land Use – City Usually Wins See,

e.g., Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995). De novo review: No need for record or detailed

statement of legislative intent. After-the-fact justification allowed.

Rational basis: Is it rational to think that this action or regulation will advance any legitimate governmental interest?

Fairly debatable standard: If it’s a tie, the government wins (“the tie goes to the runner”).

Presumed constitutional: Courts will not assume that local government intended to violate the Constitution.

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Standard of Review Signs - City May Lose See, e.g., Tipp City v. Dakin, 929 N.E.2d 484

(Ohio App. 2 Dist. 2010) Enhanced judicial scrutiny Not presumed constitutional Generally, no greater regulation than

necessary to advance a substantial governmental interest

Need clear, detailed statement of intent (and record) to establish the governmental interest, and that this regulation advances the interest

Discretion = Legal Risk In the typical land use case, courts usually

defer to local government’s discretion and policy choices

In First Amendment land uses (signs, billboards, adult uses, newsracks, religious facilities) – discretion is limited, and discretion in permitting creates real legal risk

Courts want “narrow, objective rules,” not tied to message, that are consistently enforced

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Medium and Message

Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunic-ative aspects of the medium, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communic-ative aspects. Metromedia v. San Diego, 453 US 490 (1981)

Sign Regulator’s Mantra The medium is NOT the message. We regulate the medium, not the

message. Time, Place and Manner (TPM) rules Apply without regard to message Size, height, setback, illumination,

separation, location, display method If you follow the mantra, most courts

approve the sign rules

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Foundation Case

Police Dept. of Chicago v. Mosley 408 U.S. 92 (1972) – decided when commercial

speech had no protection Protest signs outside school admin building Only labor protest (teacher union) signs allowed Unconstitutional: The government may not

choose the message, the messenger, or the topic of debate

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Types of Speech

Ideological / “noncommercial speech”: Debate in the marketplace of ideas. May or may not contain facts, and may or may not be accurate, but protected because “integrally related to the exposition of thought . . . that may shape our concepts of the whole universe of man.”

Types of Speech Commercial speech: Debate in the marketplace of goods and services; regular advertising. No protection until mid 1970’s. Now protected at “lower level” on a utilitarian basis, because the information is of potential interest in making purchasing decisions, and is not related to “any direct contribution to the interchange of ideas.” Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (Stewart, J., concurring).

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Types of Speech

Third category of speech?: Another category for functional information or speech that informs, but is not debate? Stop signs, speed limits, etc. Most courts dodge this issue. Makes sense for it to be approached differently, because there is no motive to censor and no chance of running afoul of the policy concerns of the First Amendment.

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Central Hudson Analysis: For Commercial Speech Central Hudson v. PSC, 447 U.S. 557 (1980) Four steps:

Is product or service illegal, or message deceptive? If yes: no protection, case over.

Serve a substantial governmental interest? Directly advance the asserted interest? More extensive than necessary – is there a

reasonable fit? Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001) – no

tobacco ad signs within 1,000 feet of schools, playgrounds – goes too far, unconstitutional

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Litigating the Sign Case

Usually in federal court Civil rights case When challenger wins, often large

attorney fee awards Money damages possible Burden of justification is on the gov’t Sign regulation is a source of

considerable legal risk – be careful! 22

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Issues In Regulating Signs Content Neutral Regulation

Rule is not based on message – Example: Regulate “temporary signs”, not

“political signs” or “campaign signs.” Functional View vs. Literal View (directional signs, time/temperature signs)

Viewpoint Neutral Regulation is required Rule applies equally to all speakers within

the defined class, does not vary by message –

Example: Use “A flag is a noncommercial symbol,” not “A flag is a symbol of a government.”

Issues in Regulating Signs

No governmental review or discrimination against message content

Rule not based on message content Focus: regulate time, place and manner Graphic design rules (fonts, colors,

logos) – can be risky – need careful drafting

Sign programs – rarely litigated, generally approved

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Issues in Regulating Signs The governmental purpose is paramount

in determining whether the regulation will be upheld. Controlling impacts of the sign,

presenting important and substantial governmental interests? Yes.

Suppressing free speech? No.

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Issues in Regulating Signs No “one-size-fits-all” solution exists Strategies and desired outcome

need to be tailored to the circumstances, local needs

Many (most?) codes have legal issues, so borrowing can be problematic

Governing law is very fact-sensitive, evolving over time, and can be unpredictable

Choosing the Topic? Special rules for political campaign signs Display time limits – city usually loses GK Ltd. Travel v. Lake Oswego, 436 F.3d

1064 (9th Cir. 2006) Display right based on event (election), not message

content – okay

Watch out for treating campaign signs more stringently than other similar temporary signs or temporary commercial signs (i.e., construction site signs)

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Residential / Yard Signs

Two US Supreme Court decisions Linmark Assocs., Inc. v. Township of

Willingboro, 431 U.S. 85 (1977): City cannot ban Real Estate For Sale signs – onsite residential – some states expand this

Ladue v. Gilleo, 512 U.S. 43 (1994) – people must be allowed to express political / religious views at their homes

• Size limits are probably okay

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Metromedia v. San Diego 453 U.S. 490 (1981)

90+ pages long, 5 opinions Applied Central Hudson Three basic rules:

Rule 1: Government can ban billboards Rule 2: Government may not favor

commercial speech (lower level) over noncommercial speech (full protection)

Rule 3: Government may not pick and choose between noncommercial categories (Mosley principle)

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Message Substitution

An easy way to avoid accidental violation of Metromedia Rule 2 (no favoring of commercial)

Anywhere any legal sign displays any legal message, the message can be changed to any kind of protected noncommercial speech

No permitting or approval required Every sign ordinance should include message

substitution

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Banning Signs in Traditional Public Forum Areas Traditional Public Forum – surfaces of streets, parks,

sidewalks, area around city hall Complete ban on inanimate (posted, “left behind”) signs

on Traditional Public Fora, regardless of message type – many courts approve See Sussli v. San Mateo, 120 Cal.App.3d 1 (1981)

Generally, government does not have to allow commercial speech or activities in Traditional Public Fora But, if commercial speech is allowed, then

noncommercial must be allowed – the “no favoring of commercial” rule applies

If any noncommercial speech is allowed, door is (usually) open to all types of noncommercial

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Election Signs in Traditional Public Forum

Burson v. Freeman, 504 U.S. 191(1992) State law: no signs or politicking within 100 feet

of polls on election day Valid – justified by interest in preventing voter

fraud and intimidation Narrowly tailored Extremely rare example of content-based rule

concerning noncommercial speech which was sufficiently justified

Some states have codified this rule 34

Government Speech The government does not need to give itself permission to

express its own message on its own property First Amendment does not apply to government speech

Pleasant Grove v Summum, 129 S.Ct. 1125 (2009) PETA v Gittens, 414 F.3d 23, 28–29 (D.C. Cir. 2005)

(as arts patron, District was free to communicate some viewpoints while disfavoring others; guidelines announced in advance)

“Blurring the line” problems: government adopting private speech, inviting private participation

Only constitutional limit on government speech is the Establishment of Religion clause

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Gittens Party Animals

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Banning Mobile Billboards

Bans on mobile billboards (sign trucks) on city streets have been approved many times

Key issue: using the road for transportation purposes or turning it into an advertising theater?

Fifth Ave Coach v. NYC, 211 U.S. 467 (1911) Railway Express Agency v. People of New York,

336 U.S. 106 (1949) Showing Animals Respect and Kindness v. West

Hollywood, 166 Cal.App.4th 816 (2008) BUT – beware of possible pre-emption under state

law (any licensed and registered vehicle can use the public roads and streets)

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What is a Digital Sign?

Physical method of image presentation Electronic display uses LCD, LED, plasma, or

projected images Much finer detail than traditional freeway info

signs or sports stadium scoreboards Full color, digital effects Images easily changed – slide show or full

motion, even interactive – giant TV

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Digital Signs: the New Frontier in On and Off Premise Signs Fast-moving technological developments leading

to sophisticated signs that are economically feasible to deploy

Can display full motion video, with sound and special effects like smoke or odors

Safety and status under the Highway Beautification Act to be addressed by Bill and Jerry

Costs coming down because of economies of scale and competition

Regulating Digital Signs

Factors in regulation include whether to allow animation or motion, length of delay in change of static advertising messages, standards for illumination

Much more expensive to install, but generate much more revenue

Much more expensive to remove – road widening, redevelopment, private property rights statutes.

Consider cumulative impact on aesthetics and safety

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Best Practices

Okay to ban digitals, but watch out for exceptions that undermine the prohibition. Naser Jewelers v. City of Concord New Hampshire, 513 F.3d 27 (1st Cir. 2008); Carlsons Chrysler v. Concord (NH Supreme Ct); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)

If not a complete ban, regulate where and when they are allowed

Digital Signs and the Highway Beautification Act Controls billboards along freeways and interstates

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“DIGITAL” BILLBOARDS AND THE HIGHWAY BEAUTIFICATION ACT (HBA): PENDING FEDERAL LITIGATION

Most “digital” billboards now operating in the United States are located along federal interstates and federal-aid primary highways, and are subject to the federal HBA (known as the Lady Bird Act).

Scenic America, Inc. v. United States Department of Transportation, et al., Case No. 1:13-cv-00093-JEB, in the United States District Court for the District of Columbia. Suit filed on January 23, 2013.

Lawsuit challenges a Federal Highway Administration “Guidance Memorandum” dated September 25, 2007.

Core issue: whether “digital” billboards that display commercial messages by utilizing LEDs, changing every 4-10 seconds, violate the HBA’s mandatory customary use standards as implemented through Federal State Agreements.

The history of the HBA and the implementation of its restrictions on size, lighting, and spacing-to what was then customary use-is critical to an understanding of the legal issue framed in the suit.

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HIGHWAY BEAUTIFICATION ACT TIMELINE RE: BANNING INTERMITTENT LIGHTING

1965 – October 22, 1965: HBA enacted. Limits size, lighting, and spacing on interstates and federal-aid primary highways in commercial and industrial zoned areas to what was then “Customary Use.”

1966 – March-May. Public hearings in every state. Six committees established. General Counsel’s Report released. Intermittent lighting only to display Public Service Information (time, date, temperature).

1967 – First State-Federal Agreement (Vermont). 1968 – HBA Amendment. Only 12 Agreements in place.

Five more years to complete the process. 1973 – Last State-Federal Agreement (South Dakota).

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HBA TIMELINE (2)

1978 HBA Amendment - House-Senate Conference Committee rejects House proposal to allow Commercial Electronic Variable Message Signs (CEVMS) for off-site signs under the HBA.

1990 - FHWA: CEVMS/Billboards are Illegal. 1996 - FHWA: intermittent lighting signs not allowed. 2007 - FHWA internal controversy over letter and spirit of

the HBA. Guidance Memo issued on September 25, 2007. FOIA request by Scenic America led to disclosure of internal fight over agency action. No discussion of 1966 Public Hearings or the 1978 rejection of a change to the HBA to allow CEVMS.

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HBA TIMELINE (3)

2007 – FHWA Guidance Memo states that every 4 seconds would not be deemed intermittent. This would mean that 21,800 times per day would not be deemed “intermittent.”

2009 – Scenic America consults with Georgetown Law Center’s Institute for Public Representation (IPR).

2010 – Scenic America (through IPR) files petition for rulemaking. FHWA promises to address it ASAP. Rulemaking petition then ignored for three years. Digital billboard proliferation spreads based upon FHWA Guidance Memo.

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HBA TIMELINE (4)

2012 - Scenic Arizona victory in state appellate court. Digital billboards that change every 8 seconds are intermittent and illegal. Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al., 228 Ariz. 419, 268 P.3d 370 (Ariz.Ct.App. 2012).

2012 - Rutgers Law Review Article – Digital Billboards Violate Letter and Spirit of HBA.

2013 – Scenic America files lawsuit against USDOT and FHWA. Outdoor Advertising Association of America (OAAA) intervenes. USDOT, FHWA and OAAA file motions to dismiss, which are denied.

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HBA TIMELINE (5)

2013 (October 23, 2013) – U.S. District Court denies motions to dismiss with a 24-page memorandum opinion. Discussed below.

2014 (January-April) – Briefing schedule for any and all cross motions for summary judgment. Final brief due on April 11, 2014.

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President Johnson Signs HBA February 8, 1965

• Association with beauty can enlarge man’s imagination and revive his spirit.

• Ugliness can demean the people who live among it.

• What a citizen sees every day is his America. • If it is attractive, it adds to the quality of his life. • If it is ugly, it can degrade his existence.

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HBA: The Lady Bird Act Enacted on October 22, 1965

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The “Customary Use” Provision Added to the HBA (as underscored) During Its Consideration in the House

In order to promote the reasonable, orderly

and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected and maintained…

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The 1966 Hearings

Section 303 of the federal HBA required public hearings in each state.

Took place in March-April-May, 1966. 8,000+ attended and 2,000+ testified. For what purpose? … for the purpose of gathering all relevant

information on which to base such standards, criteria, and rules and regulations.

… report to Congress not later than January 10, 1967 all standards to be applied.

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1966 Hearings; Six Committees

Six committees established to review the relevant information.

One committee evaluated the criteria for size, lighting and spacing of signs permitted in commercial or industrial zones; evaluation of customary use for size, lighting and spacing.

Report of the Bureau of Public Roads’ General Counsel Lowell Anders was made on July 12, 1966 at the Workshop on Highway Law in Boulder, Colorado.

Report attached to Circular Memorandum distributed by Deputy Director of the Bureau of Public Roads on July 19, 1966.

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General Counsel Ander’s Report --July 12, 1966

Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information.

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General Counsel Ander’s Report -- July 12, 1966 (cont’d)

• During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs, by the use of intermittent or moving lights.

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Typical Federal State Agreement --1968 (California)

February 15, 1968 - California Federal State Agreement (7th agreement). Typical agreement identifying “customary” use for “Lighting” as follows:

Lighting: Signs . . . shall not include . . .

flashing, intermittent or moving lights (except that part necessary to give public service information such as time, date, temperature, weather or similar information);

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South Dakota – 1973 -- Last Federal State Agreement LIGHTING Signs may be illuminated, subject to the

following restrictions: Signs which contain, include, or are

illuminated by any flashing, intermit-tent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.

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August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917-18

Mr. JACKSON. . . . Purely and simply, what this amendment will allow is the use of electronic signs on the premises of businesses adjacent to interstate highways. It does not extend beyond this as some have advocated to off- premise commercial and industrially zoned properties. That is an entirely different matter. . . .

Mr. STAFFORD. Mr. President, I do, indeed, share the same concern as the distinguished manager of the bill on the majority side, with respect to further electronic signs beyond those which might be under this amendment authorized on premise for activities carried on premise. . . . I have examined the existing law and the amendment of the distinguished Senator from Washington (Mr. Jackson). . . . Mr. President I want to register my concern over any proliferation of these electronic signs off premise. My concern is that these signs, if sanctioned off premise, may be a threat to highway safety.

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August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917-18 (cont’d)

Mr. STAFFORD: . . . As I understand the distinguished Senator’s amendment it removes any Federal barrier only to electronic signs which provide public service information or advertise activities on the property on which they are located. This does not change Federal regulations forbidding these signs in commercial or industrial areas, where the signs are not on premise. Is that correct?

Mr. JACKSON. That is correct.

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The 1978 Amendment to the HBA Surface Transportation Assistance Act of 1978 (November 6, 1978)

• The House version would have allowed “commercial” electronic variable message signs (CEVMS) under the HBA.

• The House version to change the HBA failed in Conference Committee on Oct. 14, 1978.

• The Senate version, advocated by Senator Jackson, was adopted in lieu of House version. This was the topic of the colloquy on the Senate floor on August 18, 1978 (above).

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FHWA Memo Jan. 19, 1990 Director of Right-of-Way

We have received several inquiries concerning the off-premise advertising use of commercial electronic variable message signs (CEVMS) which change their advertising messages by electronic process or remote control. These outdoor advertising signs use various types of evolving technology such as lights, glow cubes, rotating slats, moving reflective disks, etc.

FHWA has interpreted the Federal law as implemented under individual state/federal agreements to prohibit off-premise variable message signs, irrespective of the method used to display the changing message. The prohibited CEVMS must be considered to be illegal.

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FHWA Memo July 17, 1996 Director of Right of Way In nearly all States, these signs may still not

contain flashing, intermittent or moving lights.

Note: The 1996 FHWA memo does not refer to “commercial” electronic variable message signs, but to “changeable” message signs. The available record does not indicate whether the change in terminology was deliberate or inadvertent.

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FHWA CHANGES ITS POSITION September 25, 2007 - Guidance Memorandum Signed by Associate Administrator

FHWA changed its longstanding interpretation of the HBA on September 25, 2007 re: intermittent lighting.

FHWA advised that a range of acceptability was between 4-10 seconds and recommended 8 seconds for the frequency of a changeable message sign utilizing lights. FHWA again omitted the term “commercial” in describing the variable message signs and made no reference to the public service information exceptions set forth in the FSAs.

In 2013 U.S. District Judge Boasberg described it this way: “In 2007, the Federal Highway Administration issued a ‘Guidance’ that paved the way for the construction of digital billboards along the nation’s highways. . . . Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System.’

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FHWA Stalls 2009-2012 Federal lawsuit filed 2013

Efforts were undertaken by Scenic America to have FHWA and USDOT reconsider the Guidance Memo. A formal petition for rulemaking was unanswered for three years.

In 2012, two significant events occurred. A state appellate court in Arizona ruled that digital

billboards did use intermittent lighting. A law review article concluded that FHWA had failed to

adhere to the letter or spirit of the HBA. On January 23, 2013, Scenic America filed suit. On October 23, 2013, U.S. District Judge Boasberg denied

motions to dismiss filed by USDOT, FHWA, and intervenor OAAA. A briefing schedule will conclude in April 2014.

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Excerpts from U.S. District Court Opinion Oct 23, 2013

“Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System.”

“But the agency recently shifted gears and gave the green light to its Division Offices by providing a new interpretation of that language that would permit digital billboards in certain circumstances.”

Court’s Overview of Scenic America’s claims:

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US Dist. Ct. Summarizes Scenic America’s Position

“First, it is a legislative rule promulgated without the notice-and-comment procedure required by the APA. See 5 U.S.C. § 553.”

“Second, it creates new lighting standards for billboards without "agreement between the several States and the Secretary [of Transportation]," as required by the HBA. See 23 U.S.C. § 131(d).”

“[Third], it establishes lighting standards for billboards that are inconsistent with "customary use," another violation of the HBA. See id.”

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Court Opinion re: Scenic America’s Standing and Injury

“Prior to the Guidance, most States did not allow digital billboards because they did not believe that the language of their FSAs [Federal State Agreements] or the decision makers at the FHWA would permit such proposals.”

“After the Guidance, States may now successfully petition the FHWA to amend their regulations to allow the construction of such billboards because the agency has made clear its position that doing so does not violate their FSAs.”

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Court Rejects Claim that the Guidance Was Not Final Agency Action

“It is clear that the 2007 Guidance reflects the ‘consummation of the [FHWA]’s decision-making process’ on the issue of whether digital billboards violate FSA prohibitions on ‘flashing,’ ‘intermittent,’ or ‘moving’ lights. Id.”

“The Guidance states plainly, and in bold, that ‘Proposed laws, regulations, and procedures that would allow permitting CEVMS subject to acceptable criteria (as described below) do not violate a prohibition against “intermittent” or “flashing” or “moving” lights.’ 2007 Guidance at 1-2 (emphasis added).”

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Court Rejects Claim that the Guidance Was Not Final Agency Action (cont’d)

“Nothing else in the document suggests that the FHWA’s conclusion on this point is ‘tentative, open to further consideration, or conditional on future agency action.’ City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007).”

“The 2007 Guidance does not just announce the FHWA’s vision of the law – that digital billboards are not ‘flashing,’ ‘intermittent,’ or ‘moving’ lights; it also commands Division Offices to turn that vision into reality.”

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More Excerpts from Court Opinion re: FHWA’s Interpretation of the Law

“Here, where Scenic America’s challenge is not to the FHWA’s failure to enforce the law but rather to its interpretation of the law, the Court believes it better to stick with the traditional ‘adequate remedy’ inquiry by ‘focus[ing] on whether [the] statute provides an independent cause of action or an alternative review procedure.’ El Rio Santa Cruz, 396 F.3d at 1270.”

“As Defendants do not allege that HBA provides either in this case, Scenic America may bring its claim under the APA.”

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Recap – Scenic Arizona Decision “Because the combination of LEDs used to display each brightly lit image on the billboard changes every eight seconds, the billboard’s lighting necessarily is intermittent under the plain meaning of the statute. Thus, we are not persuaded by American Outdoor’s attempt to exempt its billboard from the bar on intermittent lighting.” “The billboard uses multiple arrangements of lighting to display images that stop and start at regular intervals, which means it uses intermittent lighting.” Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al., 268 P.3d 370, 378 (Ariz.App. Div. 1 2012).

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Recap – Rutgers Law Review

“A court need not consult a dictionary to know that digital signs violate the letter and spirit of the HBA, and the failure of the FHWA to do its part "to promote the safety and recreational value of public travel, and to preserve natural beauty" has created an imbalance of power that leaves the general public at a loss.”

- Quote from Between Beauty and Beer Signs: Why

Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965, Susan C. Sharpe, Rutgers Law Review, Vol. 64, Issue 2, (Winter 2012), at pp. 325-326

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Recap – 1966 Post-Hearings Report

• Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information.

• During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs, by the use of intermittent or moving lights

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Traffic Safety and Digital Signs

Accepting the Technology – Reducing the Risks

The Veridian Group, Inc. 76

Some Common Distractions While Driving

Cell phones Texting Entertainment systems Navigation systems Adjusting temperature Talking with passengers

Disciplining children Grooming Reading Eating Viewing scenery Reading signs*

*Even reading official traffic signs is a distraction from driving; that’s why there is constant research to ensure that they are as simple and obvious as possible.

77 The Veridian Group, Inc.

Billboards are the only roadside objects designed and intended to distract the driver.

The driver cannot choose the time or place to accept distraction by the billboard.

The Veridian Group, Inc. 78

Digital signs are far more effective than conventional billboards at triggering distraction, and keeping the driver distracted longer.

There are two principal reasons and a host of unstudied but growing concerns

The Veridian Group, Inc. 79

Digitals Can Change their Message at Will

Typical “dwell time” is 6-8 seconds. The more frequent the change, the more the

billboard appears to “flash” when approached. This is called apparent motion Think of a theater marquee where the “movement” of

light is only the pattern of individual bulbs turning on and off in sequence.

The message change draws the eye because of its intermittently changing color and brightness.

A simple solution exists – employ a formula that extends message duration to minimize apparent motion to drivers.

80 The Veridian Group, Inc.

Digitals are far brighter at night than conventional billboards, and far brighter than needed Conventional billboards use floodlights to

illuminate the sign at night. Digitals are “self-illuminated”

The LEDs that form the message are also the light source.

Digitals, even when dimmed at night, can be the brightest object in the view. Research shows that these bright lights attract our

attention, even unconsciously (“moth effect”)

But we can easily reduce nighttime brightness to acceptable levels.

81 The Veridian Group, Inc.

Digital Billboards - the Brightest Objects in the Field of View

This DBB is 6 miles from the camera This photo is exposed normally for the scene.

82 The Veridian Group, Inc.

Digital Billboards - the Brightest Objects in the Field of View

This DBB is 6 miles from the camera This photo is exposed normally for the scene.

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Digital Billboards - the Brightest Objects in the Field of View

This DBB is 6 miles from the camera This photo is exposed normally for the scene.

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Digitals have new techniques to capture the driver’s attention and hold it longer.

Message Sequencing Personalization Interaction Knowing who you are to better target ads Moving with you in traffic

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Message Sequencing

Advertisers use the Zeigarnik Effect to hold the viewer’s attention longer. They reveal only part of the message at a time.

• This maintains suspense; hence interest. 80 years ago, Burma Shave spaced 6 small signs

along the road, each containing one line of a poem. • The final sign displayed their logo.

They were highly successful, and became an icon. • But speeds were lower then, and traffic lighter.

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Artist’s Rendering of Burma-Shave Signs

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Today, digitals reveal parts of a message at a time

Either on a single sign

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Today, digitals reveal parts of a message at a time

Either on a single sign

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…or by starting the message on one sign, and completing it on another

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…or by starting the message on one sign, and completing it on another

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Message Part 1

Message Part 2

Digitals send personalized messages to the driver

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and bar code scanning

All from the comfort of the driver’s seat.

They encourage texting

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and bar code scanning

All from the comfort of the driver’s seat.

They encourage texting

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Some use cameras capable of driver facial recognition

…others use automated license plate readers to know where you are.

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Some use cameras capable of driver facial recognition

…others use automated license plate readers to know where you are.

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And they can display video (and audio) messages on trucks moving in traffic.

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But the new threat is from on-premise signs Zoning controls were originally meant to

protect mom-and-pop stores. Now we have mega-malls, casinos,

arenas. On-premise signs can be:

• Larger • Closer to the road • Brighter • And can display full-motion video, sound,

even aromas Our focus on safety must adjust.

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This video sign is 7-stories high, adjacent to an elevated highway.

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What about the research? Billboard safety research for more than 70 years. 5 basic study types:

Critical literature reviews • Show strengths and weaknesses of studies done; explain findings.

Theoretical research • Help explain behavioral observations, validate principles and

constructs On-road research

• Show performance under realistic but constrained settings; small sample sizes

High fidelity driving simulators. • Good control of variables – but real world applicability must be shown

Statistical analyses of crash info • Crash data is the “gold standard,” but…

• Can’t control for real world variables • Limited to post-hoc summary reports • Studies often biased • Few crash report forms even allow for distraction (except phoning/texting) • Drivers rarely volunteer this information - fear points on license/ insurance rate increases

• When they do volunteer (in 3 studies) they report actual crashes or near misses

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Limitations of crash studies lead most researchers to avoid them

Instead, they use simulators and on-road studies with surrogate performance measures. Lane deviation, speed variance, hazard avoidance, near

misses, perception-reaction time,“time-to-crash,” etc.

Only 3 sets of studies in past 10 years evaluated crash statistics The first two were industry sponsored and showed no

correlation between crashes and digital billboards. The third was conducted by the Israeli government and

showed a dramatic decrease in crashes when billboards were covered.

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Since the most recent (2009-AASHTO) update 8 research studies have been reported, worldwide. U.S. – University of Massachusetts (Funded by NSF and NHTSA) Australia – Austroads Australia – Monash University Canada – University of Calgary* England – Transportation Research Laboratory England – East London University Norway – Norwegian Institute of Transport Economics Sweden – Swedish National Road and Transport Research Institute#

All found driver performance decrements in the presence

of billboards.

*Statistically significant relationship between video billboard and delay in responding to a lead vehicle braking in time to avoid a collision

#Sweden removed all digital billboards upon study completion.

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We now know - driver’s eyes off road for 2+ seconds leads to 2.8x increase in crash risk.

And we know from the research, including industry sponsored studies, that digital signs take drivers’ eyes off the road for 2, 3, even 5 seconds at a time.

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We can’t ban digital signs simply because of their display methodology – but we can set sensible and enforceable guidelines and regulations that permit them to operate with reduced risk to traffic safety.

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Some Simple Guidelines for Traffic Safety

Set minimum dwell time per simple available formula No driver should see more than one message change

Set maximum luminance* levels with sign full bright Require fail safe default in case of system failure Require owner to certify sign meets standard

• Thus, local government need not get into the measurement business Set minimum spacing requirements for

Signs from each other; from intersections, interchanges, curves, hills, right-of-way Prohibit:

Interaction; personalization; sequencing; privacy violations; motion or animation; advertisements on vehicles moving in traffic.

Ideally, limit amount of info, and establish minimum font size Consider similar controls for on-premise signs

*Industry “recommends” (it does not require) the use of illuminance for this measurement. This is inappropriate and, typically, unobtainable.

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There is one area where we agree with industry

Contact us at: jerry@veridiangroup.com; (510) 848-0250

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Making Deals and Living With Digitals

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Areas Defined by Signage Las Vegas, Times Square

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Best Practices

Require sign to go dark if malfunction Shutoff during emergencies, energy brownouts Brightness

Impact, and regulatory approach will vary depending on the type of surrounding activity

• residential vs. non-residential Automatic brightness adjustment tied to ambient

light levels Provide brightness measurement

Control visual clutter and proliferation Have all stores in the shopping center share time

on one digital sign

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Best Practices (2)

Motion Static Animated Intermittent Full video Prohibit flashing, strobing, racing,

images/colors that could be confused with traffic safety lights and signs

La Tour v. City of Fayetteville, Ark., 442 F.3d 1094 (8th Cir. 2006) (prohibition of flashing, blinking and animated signs is not content based restriction, and is therefore constitutional)

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Two Sign Industries

Outdoor Advertising * Billboards • General advertising for

hire; usually “off-site” • New name: “Out of

Home Advertising” • Sign itself is a

separate business, profit center

Sign Shops Make and install

custom signs for stores

Traditionally: one permanent image (usually a logo)

Past – no association with OA

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Convergence

Now, with digital, the image on a store sign can be easily changed

Some “on-site” signage is now “time sharing” or “hybrid” use Sign can be both onsite and offsite Sign becomes a separate profit center Co-operative advertising

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Policy Considerations

Signs on private property Apply Metromedia rules

Regulate based on impacts, not content Some impacts may be acceptable in one

area, while not acceptable in another. Okay to differentiate by location, zoning district, lot size, nature of land use.

Have specific definitions and rules for digital signs – do not rely on old rules about “flashing, blinking, intermittent light”

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Regulating Digital Signs (1)

Separation Distance between digital signs

• Can create haves and have-nots • First come, first entitled

Distance from residential or other negatively impacted uses

Visibility of one or more signs at a time Okay onsite, but not offsite? On-site definition – not limited to “same

parcel”

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Regulating Digital Signs (2)

Government interest findings in ordinance OTR Media Group, Inc. v. City of New York, 83

A.D.3d 451(N.Y.A.D. 1 Dept., 2011) (regulations for billboards facing arterials directly advanced the stated governmental interests of promoting traffic safety and preserving aesthetics, and were narrowly tailored to achieve those interests.)

Prohibit or regulate Sizes: Digital sign; Portion of sign face Regulate placement, orientation, spacing Limit flashing, animation, video Provide dwell times, transition times Cap brightness and require automatic controls

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Regulating Digital Signs (3)

Goals:

Be as clear, unambiguous, non-discretionary Act promptly Regulate in the most even-handed way possible Watch for possible inadvertent discrimination Always focus on the impact or other neutral

justification, not the content of the speech What works today may be invalid next year –

check for latest developments in the law Get expert assistance

Bargaining For Digital Rights Billboard companies see digital as the key to

their financial future Potentially huge increases in revenue Offers for digital rights

Take down old signs in sensitive areas Amber alerts, emergency messages TPM rules

Special permit fees for digital = auctioning the First Amendment?

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City As Billboard Landlord If city owns land near a freeway,

expect a “partnership offer” Under lease, OA companies will agree

to content restrictions (alcohol, tobacco, adult, etc.)

Up front signing bonus, % rent Impressive cash flow predictions New revenue that is not tax

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City as Billboard Landlord (2)

Percentage rent – “15% is industry standard” True only for naïve landlords

Market rate for percentage rent is based on value of location, not an arbitrary standard rate

Premium locations can draw 30-35% rent, super premiums even more

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City As Billboard Landlord

Possible deal points City can have one slide out of 8 for its

own messages Technical rules on brightness, energy

consumption, dwell, transitions, etc. Pre-emption or co-operation for

emergency message Open for competitive bidding PSAs required

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Sacramento California

City is landlord to four billboard locations, total seven faces

Signing bonus: $330,000 Monthly rent fixed for 5 years:

$60,000 per month After 5 years, possible rent increase

based on formula in place at the beginning

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City as Billboard Owner If City uses the sign exclusively for its own

message, presumably okay If the sign is a hybrid of government speech

and paid advertising, many unanswered legal questions

Does City have staff with skill set to sell advertising?

City property only? Metro Lights v. LA, 551 F.3d 898 (9th Cir. 2010) – advertising on street furniture, no obligation to allow private parties to do the same

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Development Agreements

New trend–legal frontier–many qns OA company granted right to install

new digital billboards on private land OA company removes old signs OA states intention to refrain from

alcohol, tobacco, SOBs etc. Consistent with current law? 123

Development Agreements (2)

Substantial processing fee, annual maintenance fees

Annual fees targeted to mitigating impacts

Result: money to city from signs on private land

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Development Agreements (3)

Precedent: if city says YES to one proposal, and NO to another – then what?

Competitive bidding? Exclusive negotiation period?

“Auction off the First Amendment” argument

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Large Scale Developments

New shopping centers / malls / sports / convention / tourists facilities

Developer demands signage rights No distinction between onsite / offsite

Deal “won’t pencil out” without broad signage rights

If digital signs are allowed on new developments, why not elsewhere?

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More Resources Newsletter: Sign Regulation and Public Forum

Bulletin – free, national Distributed only by email Requests to: rrmsignlaw@gmail.com

Website: www.signlaw.com Lots of basic info, cases

Safety issues and research requests: jerry@veridiangroup.com

Land use newsletters and links to First Amendment materials: strevarthen@wsh-law.com www.wsh-law.com

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Political Signs and the Law

Available now on Amazon:

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