Opening Statements

Suit tries to rein in digital billboards

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The humble billboard has grown up. The once ubiquitous roadside sign covered in glue and colorful posters has given way in many places to giant screens illuminated by thousands of tiny lights rotating ads every few seconds. These “televisions on a stick” have proliferated in recent years. There are now about 4,000 of them in the U.S., up from a few hundred a few years ago, according to industry figures.

Now the preservation organization Scenic America wants the billboards reined in. In January the Washington, D.C.-based group sued the Department of Transportation and the Federal Highway Administration in federal court, saying most digital billboards along U.S. highways contravene federal law and diminish the overall quality of American life.

The billboards “shine day and night into citizens’ backyards and bedrooms, put the public at risk of car crashes caused by driver distraction, and mar the beauty of America’s countryside and communities,” according to the complaint.

At issue is a guidance memorandum the FHWA issued to states in 2007 that was intended to clarify whether digital signs were allowed under federal-state agreements negotiated in the 1960s and ’70s pursuant to the 1965 Highway Beautification Act.

Most states’ agreements prohibited “off-premise” commercial signs illuminated by “intermittent,” “flashing” or “moving” lights. But the FHWA concluded that most digital signs are OK so long as the ads on them didn’t, among other things, change messages more than once every four seconds. Scenic America says the agency ruling ran afoul of the act.

“You can’t say something that changes 10,000 times a day is not intermittent,” says Scenic America’s lawyer, William D. Brinton. The group also contends that the FHWA illegally promulgated a new de facto rule by reversing its “historical prohibition” on the signs without going through federal rulemaking procedures.

The industry, which is not party to the lawsuit, says the billboards are valuable tools for not only displaying ads but also communicating public safety information, such as emergency warnings and images of at-large fugitives. Outdoor advertisers also claim the 2007 memo was merely intended to guide states and provide an explanation on how to interpret their already-existing rules.

“It says in clear English that this guidance is not intended to amend applicable legal requirements,” says Ken Klein, executive vice president of government relations for the Outdoor Advertising Association of America, a trade group based in Washington, D.C.

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