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Judge OKs digital billboards

Date: July 01, 2014

Summary:
A legal battle between Scenic America, the Department of Transportation and the Federal Highway Association (FHWA) has ended with a win for the billboard industry.

Body:
A legal battle between Scenic America, the Department of Transportation and the Federal Highway Association (FHWA) has ended with a win for the billboard industry.

The June 20 ruling by James Boasberg, a federal judge in the district court for D.C., lifted a roadblock that prevented federal guidance from supporting digital billboards.

Boasberg dismissed with prejudice a long-running dispute between Scenic America, an anti-billboard advocacy group, and federal regulators.  

"Although the court does not pass judgment on whether digital billboards are a boon or a blight, sightly or unsightly, safe or unsafe, it does conclude that defendants and intervenor have the better of the argument here," Boasberg’s 29-page opinion states. "The 2007 Guidance might not have offered the best interpretation of the lighting standards, but it did constitute an interpretation, rather than a substantive change."

The suit began in 2007 when Scenic America challenged a FHWA guidance memo. The memo explained that digital billboards are not banned under the Highway Beautification Act of 1965 because the lights are not “flashing, intermittent or moving.”

Scenic America, however, argued that the guidance memo didn’t follow the notice-and-comment procedures that are required by the APA. After weighing the case, the court found that the rule was interpretive and not persuasive. This means that the guidance explains an existing rule and doesn’t create a new one.

Moreover, Scenic America argued that the guidance created new lighting standards, rather than working with each state to amend its federal-state agreements (FSAs) on the subject. But the court ruled that the guidance only interprets FSA standards.

Scenic America’s third and final claim dealt with a section of the Highway Beautification Act that referred to lighting standards in the FSAs. According to the act, each FSA must set rules that deal with “size, lighting, and spacing, consistent with customary use.”

The phrase “customary use” includes rules about lighting standards, but the court ruled that the guidance simply interprets FSA standards, which include this category.

Billboard industry advocates applauded the ruling.

“The government as defendant made a strong, compelling point:  agency guidance to interpret the rules is proper,” said Ken Klein of the Outdoor Advertising Association of America. “Most states have taken steps to regulate digital billboards, many of them doing so prior to the federal guidance issued in 2007.  Digital billboards operate within the federal guidelines.”

Billboards have been making a comeback among campaigns, according to Klein’s group, which noted they’ve seen a 13.3 percent bump between the 2010 and 2012 election cycles.

Digital billboards are partly responsible for the increase because they allow campaigns to target specific voters with constantly changing messages.

http://www.campaignsandelections.com/campaign-insider/446567/judge-oks-digital-billboards.thtml

 

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