Kerry Yoakum is VP, Government Affairs for OAAA. He joined OAAA in 2008 after practicing law as an attorney for the Ohio Department of Transportation. Insider asked Kerry to talk about out of home regulatory trends.
What were some of the most important legal issues this year?
From a national perspective, the dominant legal issue in 2017 was the industry’s success in securing a firm legal foundation for digital outdoor advertising signs in litigation that turned back Scenic America’s challenge to the FHWA’s Digital Guidance. Meanwhile, in North Carolina, the North Carolina Supreme Court ruled in favor of Adams Outdoor Advertising and the industry recognizing outdoor advertising structures were entitled to Fair Market Value, which is what a willing seller and buyer would pay for the structure. While this concept seems like a no brainer, the industry routinely contends with inadequate valuations for its assets and will undoubtedly continue to deal with this issue in the foreseeable future.
What are the most important legal issues coming in 2018?
Things are ratcheting up again as 2018 approaches with two major cases pending. The first case, Thomas v. Schroer, which is before the US Court of Appeals for the Sixth Circuit, and the second is AusPro Enterprises v. Texas Department of Transportation which is pending before the Texas Supreme Court. Both these cases will test the constitutionality of their respective state Highway Beautification Acts. To put this in perspective, depending on how these cases are decided, it is certainly possible that either could reach the US Supreme Court.
What are some important trends in local billboard regulations this year?
Many small towns and municipalities feel compelled to take action in an effort to make sign codes compliant with Reed v. Town of Gilbert. I personally don’t believe Reed was intended to strike down local sign regulations. (See the legal opinion from Harvard Law Professor Larry Tribe, saying Reed does NOT knock out the distinction between on-premise and off-premise signs, as well as Justice Alito’s opinion in Reed, which says sign regulations can properly regulate certain aspects of signs without being content-based.)
However, if the locality feels compelled to act, I suggest the following post-Reed regulatory principles for municipalities to consider:
- Avoid content-based enforcement, and do a review of ordinances and the permitting process.
- Include a substitution clause to make sure commercial and non-commercial speech types are protected.
- A good example is Lakeville, MN, which states “signs containing noncommercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs.”
- Include a severability clause: “A sign ordinance should contain a severability clause stating that if a section of the code of the sign ordinance is found unlawful it can be removed without cancelling other parts of the ordinance.”
- Minimize categories for signs. It is possible to keep the sign ordinance simple. This prevents potential lawsuits and helps staff keep their processes simple for enforcement.
- State the purpose and rationale for regulating signs in detail at the start of the code. (e.g. Why did the locality create the ordinances?).
- Often times these statements like to cite traffic safety and aesthetics, but they should consider the following findings: “If you make claims about safety, you need to back them up with reputable studies.” (See E&J Equities case) E&J Equities v. Board of Adjustment of Franklin Township, 2016 N.J. LEXIS 890 (Sept. 15, 2016)
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