A legal battle over digital billboards between the Federal Highway Association (FHWA) and Scenic America has finally ended with a loss for Scenic America, which is an anti-billboard advocacy group.
The suit originally began almost eight years ago in 2007, when Scenic America challenged an internal FHWA memo, which stated that digital billboards were not banned as a part of the Highway Beautification Act of 1965. FHWA’s reasoning was that digital billboards are not “flashing, intermittent or moving.”
Scenic America argued that the memo should have involved notice-and-comment procedures, as the APA requires. The court, however, in a 29-page opinion found that the rule was interpretive and didn’t apply to the case of the guidance memo. Scenic America also argued that the memo ended up creating new lighting standards, which the court also did not agree with.
Judge Boasberg dismissed the suit with prejudice, and said that, “Although the court does not pass judgment on whether digital billboards are a boon or a blight, sightly or unsightly, safe or unsafe, it does conclude that defendants and intervenor have the better of the argument here.” He adds that the 2007 memo might not have been the best potential interpretation of the standards, but it was, legally, an interpretation and not a change to the standards — a distinction upon which Scenic America’s case had been built.
The billboard industry was, not surprisingly, happy with the ruling. “Most states have taken steps to regulate digital billboards, many of them doing so prior to the federal guidance issued in 2007,” said Ken Klein, who works with the Outdoor Advertising Association of America (OAAA). “Digital billboards operate within the federal guidelines.”
Billboards have been increasingly popular for political campaigns since they can feature changing messages, and the OAAA saw a 13.3% demand increase between the 2010 and 2012 election cycles. Although billboards have, overall, waned in popularity as other forms of marketing become increasingly targeted at consumer niches, they remain a reliable option for many companies drawn to the price — outdoor ads are 80% less than TV commercials on average, and 50% less expensive than radio ads.
