Yesterday the outdoor industry won a victory when the US Court of Appeals unanimously rejected Scenic America’s attempt to invalidate federal guidance on digital signs on the grounds that it violated the Federal Highway Beautification Act. You can read the decision here. Here’s an OAAA-prepared timeline of Federal Government actions relating to digital billboards which provides the background to the ruling.
1996
Responding to the increased use of changeable-message signs, the Federal Highway Administration (FHWA) issued a memo that said: “Changeable message signs are acceptable for off-premise signs, regardless of the type of technology used . . .”
These signs should not contain flashing, intermittent, or moving lights, the memo said.
–Barbara K. Orski, FHWA Director of Real Estate Services, July 17, 1996
2007
In 2007, FHWA issued Guidance to clarify its 1996 memo on changeable-message signs. The agency highlighted this key part: “Proposed laws, regulations, and procedures that would allow permitting CEVMS (changeable electronic variable message signs) . . . do not violate a prohibition against ‘intermittent’ or ‘flashing’ or ‘moving’ lights as those terms are used in the various FSAs (Federal State Agreements) that have been entered into during the 1960s and 1970s.”
–Gloria M. Shepherd, FHWA Associate Administrator for Planning, Environment, and Realty, September 25, 2007=
http://www.fhwa.dot.gov/real_estate/oac/policy_and_guidance/offprmsgsnguid.cfm
2013
Scenic America challenged FHWA’s 2007 Guidance in federal court (Scenic America vs US Department of Transportation et al, filed January 23, 2013). OAAA intervened as co-defendant with the federal government, representing the out of home advertising industry.
Late that year, FHWA posted its driver-behavior research that said digital billboards are not distracting (December 30, 2013).
http://thehill.com/policy/transportation/194654-dot-study-finds-digital-billboard-dont
2014
A federal judge dismissed the case.
“The Court will dismiss with prejudice all three of Scenic America’s challenges to the 2007 Guidance,” ruled US District Court Judge James E. Boasberg on June 20, 2014.=
Scenic America appealed
2015
The US Circuit Court of Appeals for the District of Columbia heard oral arguments on September 25, 2015.
2016
The US Court of Appeals for the District of Columbia unanimously rejected Scenic America’s appeal, issuing a decision on September 6, 2016. The appeals court said Scenic lacked standing to bring its claim about administrative procedure. Further, the court said the government’s Guidance issued in 2007 did not violate the federal Highway Beautification Act, HBA.
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