Columnist: Opponents Sue to Stem Onrush of Flashing Digital Billboards

June 10, 2013

By Neal Peirce

Hardly a driver
Is now alive
Who passed on hills
At 75
-- Burma-Shave

Once upon a time, advertising in America was fun. As a boy, I didn't want to miss the Burma-Shave jingles -- one line a sign in a quick roadside series -- as my father took me on my first drive across America.

Today it's different. Massive, glaring, digital billboards, commandeering attention as they flash new messages every few seconds, are proliferating across most states.

Around 2005, the first appeared. By 2008, there were 1,800. Last year there were 3,600, and this year the number is likely to be close to 5,000. The industry (about 250 independent contractors) is licking its chops. The cost of new boards is dropping rapidly, the "dynamic new content" allegedly outperforms television, radio and newspaper ads, and there's "an increasingly favorable regulatory environment" -- states and cities agreeing to the signs.

Unless, of course, regulations strike back. That's precisely what Scenic America, a nonprofit public interest group, is trying to force. It has filed suit in federal court to force the Federal Highway Administration (FHWA) to clamp down, to reverse its 2007 ruling that permitted the garish signs as long as they don't flash new images more frequently than every four seconds.

The FHWA, says Scenic America, invented the four-second rule out of thin air, without hearings or regular procedures. Specifically, it says the new rules violate the Highway Beautification Act of 1965. That law, written in the pre-digital age, sought to limit signs and displays on federal highways by requiring federal agreements with the states to codify rules. The accord that emerged typically prohibited "signs which contain, include, or are illuminated by any flashing, intermittent, or moving light ... except those giving public service information such as time, date, temperature [or] weather."

With four-second bright electronic imagery, Scenic America claims, digital signs are indeed "flashing," "intermittent" and "moving."

Beyond that, it says the FHWA has brushed by the safety issues -- drivers distracted by the brightly lit, constantly changing mega-signboards. It cites an array of studies -- by the Swedish government, researchers in Israel, the Dutch highway authority, and by Norwegian analysts. All suggest the flashing billboards draw viewers' attention for longer periods of time than standard signs, and may in fact trigger more crashes.

Indeed, it's fair to ask: How can the FHWA have opened the door to these diverting digital eye-catchers without making its own scientific tests -- as Israel and Sweden actually have (deciding in each case to ban the signs)?

There have been no nationwide U.S. surveys to gauge Americans' opinion of the digital boards. But there's little question -- in communities where citizens have a strong voice, opposition is high. And it is especially vociferous when the signs invade populated areas, flashing through peoples' bedroom windows.

Local governments, however, find themselves under big pressure to give in. And from two sides: the billboard lobby -- seeing dollars dance before its eyes at every advance -- and from local politicians in search of municipal revenue (and sometimes in search of campaign contributions).

In cash-strapped Chicago, for example, Mayor Rahm Emanuel is seeking state permission to erect 34 double-sided digital billboards, up to 100 feet high, on city property. In exchange, the city will get $155 million in payments over 20 years. Five companies actually bid for the billboard agreement. The winner, The Chicago Tribune reports, was a firm that coincidentally contributed $10,000 to Emanuel's mayoral campaign.

Sometimes, Scenic America notes, billboard interests come to a city and ask for new digital boards in exchange for taking down a few traditional boards, notwithstanding citizens' often fervid objections.

In other cases, a billboard firm just erects a digital sign -- calculating neither citizen groups nor the city government will have the cash, or the gumption, to launch expensive legal action to stop the incursion.

The billboard firms' strongest argument may be that they're willing to post flood, tornado, traffic hazard or other warnings on their fast digital signs. But it's fair to ask: Aren't such warnings fundamentally the responsibility of state and local governments? Must drivers be watching private advertising billboards to catch crucial emergency information?

Getting legal restrictions on highway billboards has never been easy. President Lyndon Johnson, in a recorded 1968 phone conversation with then-Rep. (and future Speaker) Jim Wright, let loose on the issue with his legendary bluntness. Legislation to strengthen the Highway Beautification Act, he asserted, was being blocked by "this damned billboard lobby" -- "selfish, eager hogs" who "won't even let folks sit down and try to reason with them."

Yet it was Johnson's wife, the soft-spoken Lady Bird Johnson, who embodied the spirit of the Highway Beautification Act. She famously championed Americans' right to have flower-lined highways of beauty, "not long alleys of advertisements urging you to buy this or that."

Against powerful, well-heeled adversaries, Scenic America and its local allies carry on the fight.

Neal Peirce's email address is nrp@citistates.com.

(c) 2013, The Washington Post Writers Group

The opinions expressed in this column are not necessarily those of the National League of Cities.