Earlier this week Billboard Insider wrote that you don’t need a landlord’s consent to put a data collection device on a billboard if your lease allows you to add “other appurtenances and ancillary equipment” on the billboard. California out of home attorney Richard Hamlin writes that a court may not accept that reasoning:
I can see the argument that a data collection device is “appurtenant” or “ancillary” to a billboard. While I am not aware of any cases that address the issue, I think it is more likely that a court will rule otherwise. California’s Outdoor Advertising Act defines an advertising structure as one on which “an advertisement of any kind” may be placed. A data collection device is not an advertisement.
There is no explicit definition of off-premises advertising in the Act, but it defines an on-premises advertising display as one that identifies the name of the business of the owner or occupant, or that advertises a business, services, goods produced or sold on the premises. A data collection device does not advertise anything.
The sample lease in the article lists typical “appurtenances and ancillary devices.” Unlisted appurtenances might include catwalks and devices to keep birds off the sign. All of these devices support the signs’ advertising purposes. Again, a data collection device does not support the advertisements on the sign.
Arguably, a data collection device will make it possible to make the advertising more effective and therefore is ancillary to the purpose of the board. It is still not advertising. If you want to be the first to argue this point, we suggest that you select a lease that does not have an attorney fee clause. That will permit a court challenge without exposure to the other side’s attorney fees.
Hamlin suggests that adding the following language in bold below to the billboard lease to address the problem:
This Lease Agreement (the “Lease”) is dated and entered into on this ___ day of ____. 20__, between _____ (hereinafter called “Lessor”) and ____, (hereinafter called “Lessee”). Lessor hereby lease and grants exclusively to Lessee the folloiwng premises described as _____, City of _____, County of _____, in the State of _____(the “Property”) (which may be more particularly described on the attached Exhibit “A”), for the purpose of accessing (vehicle or pedestrian), erecting, constructing, installing, placing, operating, modifying, relocating, removing, and maintaining Lessee’s sign(s) thereon, including supporting structures, illumination, facilities, electrical connections, service ladders, and other appurtenances and ancillary devices, including by way of example and not limitation, data collection devices and antennas that permit transmission of information to and from the devices (the “Sign”). The Property shall include the area where the Sign is located, the surrounding area , and the airspace above the same.
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