Insider’s note: In this post Dick Bouley sounds a cautionary note about how difficult it is to get billboards on public right of ways.  Bouley came to Concord, New Hampshire in 1979 to work for Governor Hugh Gallen.  He has been a registered lobbyist since 1982, representing a spectrum of clients including outdoor advertisers.  His firm is Dennehy & Bouley.  

As an old-timer, I note with interest that California and Texas are considering commercial advertising on the public right-of-way, which is prohibited by the feds.

Like me, debates about the right-of-way have been around a long time.

Details vary state to state, but proponent’s arguments tend to be the same:

1. Let’s put the right of way to work
2. We know regulations don’t allow commercial ads on the right-of-way, but…
3. The Federal Highway Administration is either asleep, a paper tiger, or could change its position.

I’ll share New Hampshire’s experience, which may offer a lesson for other states that want to bluff the feds.

In New Hampshire, a veteran influential lawmaker (Representative Neal Kurk) proposed legislation to allow business signs on the public right-of-way.  His motive was to help small businesses located near roadways.

The feds objected in 2001, saying public highways are exclusively for public purposes.  But that didn’t seem to dampen proponent’s enthusiasm for the idea.

The bill was passed and sent to New Hampshire’s Department of Transportation to implement according to the NH Business Review (November 14, 2003).

In Concord the Federal Highway Administration was represented by plain-speaking Kathleen O. Laffey, FHWA Division Administrator.  She made these blunt points to the state, in writing:

• Business signs in the right-of-way are not permitted under federal law.
• “Despite rumors to the contrary, FHWA is not planning to change its interpretation of these laws.”
• FHWA studied the issue of commercialization of the right-of-way, concluding that “allowing advertising signs would compromise the safety of the motoring public.”
• If New Hampshire persisted, FHWA would withhold federal funds.  “Given that the State’s needs outstrip available funding, it would be regrettable for New Hampshire to suffer…”

Our small state felt the federal hammer.  Plans to put commercial ads in the right-of-way were dropped.

Across the country, the lure of the right-of-way is strong.  In the mid-90’s, Florida’s legislature authorized a demonstration project to allow corporate logos on the Florida Turnpike.

The FHWA division administrator in Tallahassee said no: ” it has been a long standing position of the Federal Highway Administration to prohibit any commercial advertising on the highway right-of-way.”

A decade later, Nevada proposed auctioning interchanged for enhancements including advertising.  Again, the feds said no  after “consideration of all the factors to the proposal, we have decided not to proceed with it.” (Regina McElroy, FHWA Director of Innovative Program Delivery, January 26, 2009).

With 35+ years in politics, I’ve seen one side try to bluff the other…I may have tried that tactic myself.

Based on what I’ve witnessed, when states try to bluff the feds to put commercial ads on the right-of-way, the bluff has not worked.

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