By Ken Klein, Executive Vice President, OAAA.
A long-running tiff between New York State and the feds over signs on the highway right of way symbolizes a broader tug of war: should existing rules be liberalized or not?
In New York State, the administration of Governor Andrew Cuomo spent $8 million+ to install signs promoting New York products and destinations, including an app and website. These I Love NY signs are illegal, says the Federal Highway Administration (FHWA), because they violate national standards on blue “logo” signs directing motorists to food, gas, lodging, and attractions.
The federal agency wants New York State to submit a compliance plan by January 31.
This issue puts FHWA in a bind: a big-state governor cheerleading for his home state versus the clearly worded federal Manual that sets standards for all states. New York gets $1.5 billion+ annually in federal highway funds. The federal government can withhold highway money for sign violations.
The dust up in New York is part of a national debate about expanding use of the public right of way:
- States chafe under federal controls, and states also seek new revenue sources
- The Trump Administration favors loosening rules on rest areas, to allow more full-service plazas on the highway with food and gas
- The new secretary of transportation and her highway department consistently have opposed commercial ads on the highway right of way
Here is a snapshot of right of way issues nationwide:
Commercial advertising
In April, with President Trump’s new secretary of transportation in place (Elaine Chao), the feds re-affirmed opposition to commercial advertising on the right of way.
“Traffic control devices or their supports shall not bear any advertising message or any other message that is not related to traffic control,” FHWA headquarters said in response to an inquiry from Pennsylvania to Secretary Chao about selling advertising on the back sides of overhead traffic signs.
In California, the state Legislature will consider a proposal (Assembly Bill 1405) to create a network of digital signs on the traveled way to display official information and commercial advertising. Proponents say the on-road digital network would improve delivery of information to motorists while earning new income for the state via a public-private partnership.
The billboard industry in California is split; some support this proposal, others oppose it. If approved at the state level, implementation would depend on federal approval.
Jim Moravec of Stott Outdoor Advertising in Chico, CA, wanted to learn more about the federal position, so he asked his congressman (Doug LaMalfa, R-CA) to find out.
In response, FHWA repeated that advertising is not allowed on traffic signs. “There have not been any changes as far as the prohibition on advertising on traffic control devices,” FHWA told the congressman, whose staff contacted Moravec.
Sponsorships
Federal rules allow sponsorships of certain signs.
Participants in the anti-litter Adopt-A-Highway/Sponsor-A-Highway program are acknowledged as sponsors on official signs on the right of way, including businesses and corporations.
A business (food market) sponsors a highway as part of Maryland’s anti-litter program
The federal Highway Beatification Act (HBA) allows “signs that acknowledge the sponsorship of rest areas . . . along the traveled way.” Starting in Virginia in 2012, GEICO sponsors cell phone safety areas/rest stops. GEICO’s sponsorship of rest areas generated about $1 million for the state in six years according to the Virginia DOT.
GEICO sponsorship sign installed in Virginia
Since then, GEICO sponsorship signs have been installed in Arizona, Florida, Illinois, New Jersey, New York, and Texas. State Farm sponsors patrols to assist motorists in a growing number of states (Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Maryland, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Wisconsin), reducing government expense.
Branding for the corporate sponsor includes logos on patrol trucks, patrol uniforms, and roadway signage.
Safety Patrol sign in Pennsylvania, branded vehicle in North Carolina
Texas proposed corporate-logo sponsorships of official traffic signs overhanging freeways, which would look like this:
Proposed corporate sponsorship in Texas, which was rejected by the feds
The feds said no, citing laws and regulations in a letter from FHWA headquarters to Texas DOT in June of 2017.
West Virginia is seeking proposals to sponsor its 88-mile turnpike. In November (2017), the turnpike manager said “marketable assets” include:
- Courtesy patrol
- Selective sign options
- The turnpike website
- Rest areas and travel plazas with free wi-fi and other motorist engagement opportunities
Rest Areas
In the early days of the Interstate system, existing full-service plazas (mainly in the East) were grandfathered. Commercial rest areas were banned elsewhere in order to sustain small towns and economic activity outside the right of way.
The Trump infrastructure outline calls for privatization of highway rest areas to allow more food-and-fuel service on the road. In Arizona, Governor Doug Ducey supports privatized rest areas to generate revenue for transportation.
Ducey and other proponents for change say Fifties-era legislation that blocks commercialized rest areas in places like Arizona is passé and shackles states with paying for spartan rest areas with rest rooms, parking, and vending machines.
Major out of home advertisers — truck stops, restaurants, petroleum marketers, and convenience stores — oppose expansion of full-service plazas on the highway because of their investment in enterprises outside the public right of way, near highways.
In 2012, the US Senate voted 86-12 to reject commercialized rest areas. Senator John Barrasso (R-WY), who voted with the majority to oppose commercialized rest areas in 2012, urges caution now.
“The public right of way was acquired with public funds for a public purpose,” the senator said in a letter to Transportation Secretary Chao in June of 2017. “State and local government, as applicable, should not be allowed to permit or engage in business within the right of way, harming nearby private enterprises that create jobs, pay taxes, and have made billions of dollars of investments over the years based on existing laws, rules, and practice.”
Barrasso, a member of the Senate Republican leadership team, is chairman of the Environment & Public Works Committee.
Naming Rights
The idea to sell naming rights is motivated by the same dynamic as commercializing rest areas: more money for the state.
In Maryland, State Senator Katherine Klausmeier (D-Baltimore County) filed a bill (SB24) to:
- Sell or lease naming rights for rest areas and welcome centers
- Send proceeds to the state’s Transportation Trust Fund
- Regulate offensive content that is “not in the interest of the State”
Government regulation of content can be difficult. The Ku Klux Klan won free speech challenges when states tried to block Klan groups from participating in the Adopt-A-Highway program.
Innovation
States are hungry for innovation and looking for partners.
In May (2017), Michigan DOT partnered with 3M to modernize a three-mile section of I-75 to test “smart” connections between vehicles and the road.
“Signs, pavement markings, temporary traffic controls and vehicle identification systems need to be designed and implemented to pave the way for the data-driven environment of the cars and roadways,” said 3M.
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