Digital Signs and Billboards: Crafting and Enforcing Local - PowerPoint PPT Presentation

Reed v. Town of Gilbert June 18, 2015  US Supreme Court case  Gilbert, Arizona Sign Code categories were used for exceptions to permitting requirement and different standards (size, locations, display time): Political Signs • Ideological Signs • Temporary Directional Signs for Qualifying • Special Events 20

Reed v. Gilbert  Small congregation,with no meeting place of its own, rents meeting places in varying locations  Put up temp directional signs Saturday afternoon, take down Sunday after services  Effective and economical way to inform public of events  Code enforced for placement outside of the allowed times Source: Azcentral.com 21

Reed v. Gilbert June 18, 2015 As depicted by Reed’s attorney in the briefs: 22

Reed v. Gilbert - Thomas (Thomas/Scalia/Roberts)  Alito & Thomas: Alito/Kennedy/Sotomayor  On its face, is the rule based on message content?  Messages, topic, subject, function  If YES >>> Strict Scrutiny  1) Does the rule serve a compelling gov’t interest?  2) Narrowly tailored to serve that interest? 23

Example of Strict Scrutiny: Election Signs Burson v. Freeman, 504 U.S. 191(1992)  State law: no signs or politicking within 100 feet of polls on election day  Valid – justified by interest in preventing voter fraud and intimidation  Narrowly tailored  Rare example of content-based rule concerning noncommercial speech which was sufficiently justified to survive strict scrutiny  Some states have codified this rule 24

Reed v. Gilbert – Thomas  Town’s code is content based on its face. Therefore, presumptively unconstitutional and strict scrutiny.  Ward ? If cannot justify without reference to content, gov’t justifications, motives or purposes for enactment don’t matter. Viewpoint neutral and equal treatment within the category? Doesn’t matter  Bad motive (censorial purpose) or good motive is irrelevant.  Speaker or event-based regulation? Ok if content neutral.  Regulating by function or purpose? Facially content- based. 25

Reed v. Gilbert – Thomas  Compelling gov’t interest?  Assumed for sake of argument that aesthetic appeal and traffic safety were compelling governmental interests  Most cases have concluded that these are substantial and important governmental interests, meeting intermediate scrutiny  Invites a showing that traffic safety meets strict scrutiny – here, Town failed to justify 26

Reed v. Gilbert - Thomas  Acceptable factors for sign regs  Size  Building materials  Lighting  Moving parts  Portability 27

Types of Speech Third category of speech?: Another category for functional information or speech that informs, but is not debate? Stop signs, speed limits, etc. Most courts dodge this issue. Makes sense for it to be approached differently, because there is no motive to censor and no chance of running afoul of the policy concerns of the First Amendment. 28

Reed : Alito concurrence examples  Locations (freestanding v. attached)  Fixed messages vs changing electronic  Private property vs Public Property  Commercial vs Residential property  On premise vs Off premise  Limit on number per mile  Time limits for one time events akin to noise regs – Contradicts Thomas?  Gov’t speech on signs ( Summum case)  Directionals  Safety rules (speed limits, etc.)  Historic and scenic 29

Alito’s Event -based rule? Additional temporary signage rights related to  the date of elections? GK Ltd. Travel v. Lake Oswego, 436 F.3d 1064 (9th Cir. 2006) Display right based on event (election), not message  content – okay 30

Reed : Kagan concurrence  Concur in result only of Reed  Majority rule will either lead to a watering down of strict scrutiny review, or lead to the Court acting as a “veritable Supreme Board of Sign Review” invalidating many perfectly reasonable, democratically adopted regulations.  Dilemma: repeal useful exemptions or open the doors to sign clutter  Serious reservations about application to other situations  Blind pedestrian * Hidden Driveway  Highway Beautification Act - Special allowances for scenic and historic sites, free coffee 31

Reed : Kagan concurrence  The reasons for First Amendment protection are simply not present in most subject matter exemptions in sign codes – e.g., directional or identification signs.  The Court has repeatedly upheld such content- based distinctions in cases not overruled — or even cited — by the Reed majority.  As in Ladue , all justices agree that Gilbert’s regulation fails intermediate scrutiny – and the “laugh test,” so the majority’s whole discussion of strict scrutiny is unnecessary dicta. 32

Reed : Breyer concurrence  Concur in result only of Reed  Content categories are not enough to solve this legal problem. They are analytical tools that should be used as rules of thumb rather than triggers for invalidation  All kinds of government activities involve regulation of speech with content discrimination. If that triggers strict scrutiny, the court has written “a recipe for judicial management of ordinary government regulatory activity.” 33

Reactions to Reed  Counsel and train permit and code enforcement staff NOW  Examine your sign code, and likely amend it  Temporary signs  Substitution: noncommercial to noncommercial  Limit categories  Severability  Limit exceptions  Beef up your purpose and findings in support of any arguably content-based restrictions – consider planning studies  Know that threshold defenses remain strong 34

Litigating the Sign Case  Usually in federal court  Civil rights case  When challenger wins, often large attorney fee awards  Money damages possible  Burden of justification is on the gov ’ t  Sign regulation is a source of considerable legal risk – be careful! 35

In Regulating Signs, Discretion = Legal Risk  In the typical land use case, courts usually defer to local government ’ s discretion and policy choices  In First Amendment land uses (signs, billboards, adult uses, newsracks, religious facilities) – discretion is limited, and discretion in permitting creates real legal risk  Courts want “ narrow, objective rules, ” not tied to message, that are consistently enforced 36

Sign Regulator’ s Mantra  The medium is NOT the message.  We regulate the medium, not the message.  Time, Place and Manner (TPM) rules  Apply without regard to message  Size, height, setback, illumination, separation, location, display method  If you follow the mantra, most courts approve the sign rules 37

Issues In Regulating Signs  Content Neutral Regulation Rule is not based on message –  Example: Regulate “temporary signs”, not “political signs” or “campaign signs.” Functional View vs. Literal View  (directional signs, time/temperature signs)  Viewpoint Neutral Regulation is required Rule applies equally to all speakers within  the defined class, does not vary by message – Example: Use “A flag is a noncommercial symbol,” not “A flag is a symbol of a government.” 38

Issues in Regulating Signs  No governmental review or discrimination against message content  Rule not based on message content  Focus: regulate time, place and manner  Graphic design rules (fonts, colors, logos) – can be risky – need careful drafting  Sign programs – rarely litigated, generally approved 39

Issues in Regulating Signs  The governmental purpose is paramount in determining whether the regulation will be upheld.  Controlling impacts of the sign, presenting compelling – or at least important and substantial - governmental interests? Yes.  Suppressing free speech? No. 40

Issues in Regulating Signs  No “ one-size-fits-all ” solution exists  Strategies and desired outcome need to be tailored to the circumstances, local needs  Many (most?) codes have legal issues, so borrowing can be problematic  Governing law is very fact-sensitive, evolving over time, and can be unpredictable 41

Issues in Regulating Signs: Banning Signs in Traditional Public Forum Areas  Traditional Public Forum – surfaces of streets, parks, sidewalks, area around city hall  Government speech is not regulated by First Amendment  Complete ban on private inanimate (posted, “ left behind ” ) signs on Traditional Public Fora, regardless of message type – many courts approve: Sussli v. San Mateo , 120 Cal.App.3d 1 (1981)  Generally, government does not have to allow private signs in Traditional Public Fora  But, if commercial speech is allowed, then noncommercial must be allowed – the “no favoring of commercial” rule applies  If any noncommercial speech is allowed, door is (usually) open to all types of noncommercial 42

Banning Mobile Billboards  Bans on mobile billboards (sign trucks) on city streets have been approved many times  Key issue: using the road for transportation purposes or turning it into an advertising theater?  Fifth Ave Coach v. NYC , 211 U.S. 467 (1911)  Railway Express Agency v. People of New York , 336 U.S. 106 (1949)  Showing Animals Respect and Kindness v. West Hollywood , 166 Cal.App.4th 816 (2008)  BUT – beware of possible pre-emption under state law (any licensed and registered vehicle can use the public roads and streets) 43

What is a Digital Sign?  Physical method of image presentation  Electronic display uses LCD, LED, plasma, or projected images  Much finer detail than traditional freeway info signs or sports stadium scoreboards  Full color, digital effects  Images easily changed – slide show or full motion, even interactive – giant TV 44

 More expensive to install, but generate much more revenue  Much more expensive to remove – road widening, redevelopment, private property rights statutes  Consider cumulative impact on aesthetics and safety 45

Digital Signs: the New Frontier in On and Off Premise Signs  Fast-moving technological developments leading to sophisticated signs that are economically feasible to deploy  Can display full motion video, with sound and special effects like smoke or odors  Safety and status under the Highway Beautification Act to be addressed by Bill and Jerry  Costs coming down because of economies of scale and competition  Factors in regulation include whether to allow animation or motion, length of delay in change of static advertising messages, standards for illumination 46

Digital Signs and the Highway Beautification Act Controls billboards along freeways and interstates

“DIGITAL” BILLBOARDS AND THE HIGHWAY BEAUTIFICATION ACT (HBA): PENDING FEDERAL LITIGATION  Most “digital” billboards now operating in the United States are located along federal interstates and federal-aid primary highways, and are subject to the federal HBA (known as the “Lady Bird Act”).  Scenic America, Inc. v. United States Department of Transportation , et al., Case No. 1:13-cv-00093-JEB, in the United States District Court for the District of Columbia. Suit filed on January 23, 2013.  Lawsuit challenges a Federal Highway Administration “Guidance Memorandum” dated September 25, 2007.  Core issue: whether “digital” billboards that display commercial messages by utilizing LEDs, changing every 4-10 seconds, violate the HBA’s mandatory “customary use” standards as implemented through Federal State Agreements.  The history of the HBA and the implementation of its restrictions on size, lighting, and spacing- to what was then customary use -is critical to an understanding of the legal issue framed in the suit. 48

HIGHWAY BEAUTIFICATION ACT TIMELINE RE: BANNING INTERMITTENT LIGHTING  1965 – October 22, 1965: HBA enacted. Limits size, lighting, and spacing on interstates and federal-aid primary highways in commercial and industrial zoned areas to what was then “Customary Use.”  1966 – March-May. Public hearings in every state. Six committees established. General Counsel’s Report released. Intermittent lighting only to display Public Service Information (time, date, temperature).  1967 – First State-Federal Agreement (Vermont).  1968 – HBA Amendment. Only 12 Agreements in place. Five more years to complete the process.  1973 – Last State-Federal Agreement (South Dakota). 49

HBA TIMELINE (2)  1978 HBA Amendment - House-Senate Conference Committee rejects House proposal to allow Commercial Electronic Variable Message Signs (CEVMS) for off-site signs under the HBA. Note: “Public Service Information” is not commercial speech.  1990 - FHWA: CEVMS/Billboards are Illegal.  1996 - FHWA: intermittent lighting signs not allowed.  2007 - FHWA internal controversy over letter and spirit of the HBA. Guidance Memo issued on September 25, 2007. FOIA request by Scenic America led to disclosure of internal fight over agency action. No internal discussion of (1) the 1966 Public Hearings or (2) the 1978 rejection of a change to the HBA to allow CEVMS. 50

HBA TIMELINE (3)  2007 – FHWA Guidance Memo states that every 4 seconds would not be deemed intermittent. This would mean that message changes 21,800 times per day would not be deemed “intermittent.”  2009 – Scenic America consults with Georgetown Law Center’s Institute for Public Representation (IPR).  2010 – Scenic America (through IPR) files petition for rulemaking. FHWA promises to address it ASAP. Rulemaking petition then ignored for three years. Digital billboards proliferate based upon the 2007 FHWA Guidance Memo. 51

HBA TIMELINE (4)  2012 - Scenic Arizona victory in state appellate court. Digital billboards that change every 8 seconds are deemed intermittent and illegal. Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al. , 228 Ariz. 419, 268 P.3d 370 (Ariz.Ct.App. 2012).  2012 - Rutgers Law Review Article. Digital Billboards Violate Letter and Spirit of the HBA.  2013 (January 23, 2013) – Scenic America files lawsuit against USDOT and FHWA. Outdoor Advertising Association of America (OAAA) intervenes.  2013 (October 23, 2013) – District Court denies USDOT’s, FHWA’s and OAAA’s motions to dismiss. 52

HBA TIMELINE (5)  2014 (June 20, 2014) – District Court Memorandum Opinion. District Court grants motions for summary judgment filed by USDOT, FHWA, and intervenor OAAA, and denies motion for summary judgment filed by Scenic America. District Court dismisses with prejudice all three of Scenic America’s challenges to the 2007 Guidance.  2014 (August 11, 2014) – Scenic America files notice of appeal with the U.S. Court of Appeals for the District of Columbia.  2014 (December 22, 2014) – Scenic America files Appellant Brief with federal appeals court. 53

HBA TIMELINE (6)  2014 (December 30, 2014) – The American Planning Association, The Garden Club of America, Sierra Club, Inc., and International Dark-Sky Association, Inc. files Amicus Brief with federal appeals court.  2015 (February 20, 2015) – USDOT/FHWA and OAAA file Appellee Briefs with federal appeals court.  2015 (March 11, 2015) – USDOT/FHWA and OAAA file letters advising of additional authority: The Supreme Court decision in Perez v. Mortgage Bankers Association , No. 13- 1041 (March 9, 2015).  2015 (March 20, 2015) – Scenic America files Reply Brief with federal appeals court. 54

HBA TIMELINE (7)  2015 (May 12, 2015, May 13, 2015, and May 22, 2015) – Appellant and Appellees file letters advising of additional authority: Association of Flight Attendants-CWA, AFL-CIO v. Huerta , No. 13-1316 (D.C. Cir. May 8, 2015).  2015 (June 18, 2015) – Clerk’s Order scheduling oral argument for Friday, September 25, 2015.  Friday, September 25, 2015, 9:30 a.m. – Date and Time for Oral Argument before the United States Circuit Court of Appeals. September 2015 Term. 55

President Johnson Signs HBA February 8, 1965 • Association with beauty can enlarge man’s imagination and revive his spirit. • Ugliness can demean the people who live among it. • What a citizen sees every day is his America. • If it is attractive, it adds to the quality of his life. • If it is ugly, it can degrade his existence. 56

HBA: The Lady Bird Act Enacted on October 22, 1965 57

The “Customary Use” Provision Added to the HBA (as underscored) During Its Consideration in the House  In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected and maintained… 58

The 1966 Hearings  Section 303 of the federal HBA, as enacted on October 22, 1965, required public hearings in each state .  Hearings took place in March-April-May, 1966 , commencing less than 5 months after passage .  8,000+ attended . 2,000+ testified.  For what purpose?  … for the purpose of gathering all relevant information on which to base such standards, criteria, and rules and regulations .  … report to Congress not later than January 10, 1967 all standards to be applied . 59

1966 Hearings; Six Committees  Six committees established to review the relevant information .  One committee evaluated the criteria for size, lighting and spacing of signs permitted in commercial or industrial zones; evaluation of customary use for size, lighting and spacing.  Report of the Bureau of Public Roads’ General Counsel Lowell Anders was made on July 12, 1966 at the Workshop on Highway Law in Boulder, Colorado.  Report attached to Circular Memorandum distributed by Deputy Director of the Bureau of Public Roads on July 19, 1966. 60

General Counsel Ander’s Report --July 12, 1966  Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information.  Note: No exception for intermittent commercial messages. 61

General Counsel Ander’s Report -- July 12, 1966 (cont’d) • During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs , by the use of intermittent or moving lights . 62

Typical Federal State Agreement --1968 (California) February 15, 1968 - California Federal State Agreement (7th agreement). Typical agreement identifying “customary” use for “Lighting” as follows: Lighting: Signs . . . shall not include . . . flashing, intermittent or moving lights ( except that part necessary to give public service information such as time, date, temperature, weather or similar information); 63

South Dakota – 1973 -- Last Federal State Agreement LIGHTING Signs may be illuminated, subject to the following restrictions: Signs which contain , include, or are illuminated by any flashing, intermit- tent , or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information . 64

August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917-18  Mr. JACKSON. . . . Purely and simply, what this amendment will allow is the use of electronic signs on the premises of businesses adjacent to interstate highways. It does not extend beyond this as some have advocated to off-premise commercial and industrially zoned properties. That is an entirely different matter . . . .  Mr. STAFFORD. Mr. President, I do, indeed, share the same concern as the distinguished manager of the bill on the majority side, with respect to further electronic signs beyond those which might be under this amendment authorized on premise for activities carried on premise . . . . I have examined the existing law and the amendment of the distinguished Senator from Washington (Mr. Jackson). . . . Mr. President I want to register my concern over any proliferation of these electronic signs off premise. My concern is that these signs, if sanctioned off premise, may be a threat to highway safety. 65

August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917- 18 (cont’d)  Mr. STAFFORD: . . . As I understand the distinguished Senator’s amendment it removes any Federal barrier only to electronic signs which provide public service information or advertise activities on the property on which they are located . This does not change Federal regulations forbidding * these signs in commercial or industrial areas, where the signs are not on premise. Is that correct? [ *The “customary use” limit effectively forbade electronic off premise signs that intermittently display commercial messages.]  Mr. JACKSON. That is correct. 66

The 1978 Amendment to the HBA Surface Transportation Assistance Act of 1978 (November 6, 1978) • The House version would have allowed “commercial” electronic variable message signs (CEVMS) under the HBA. • The House version failed in Conference Committee on Oct. 14, 1978. • The Senate version, advocated by Senator Jackson, was adopted in lieu of House version. • This issue (limiting electronic commercial signs to on premise) was the topic of the colloquy on the Senate floor on August 18, 1978 (quoted above). 67

FHWA Memo Jan. 19, 1990 Director of Right-of-Way  We have received several inquiries concerning the off- premise advertising use of commercial electronic variable message signs (CEVMS) which change their advertising messages by electronic process or remote control. These outdoor advertising signs use various types of evolving technology such as lights, glow cubes, rotating slats, moving reflective disks, etc.  FHWA has interpreted the Federal law as implemented under individual state/federal agreements to prohibit off-premise variable message signs, irrespective of the method used to display the changing message. The prohibited CEVMS must be considered to be illegal. 68

FHWA Memo July 17, 1996 Director of Right of Way  In nearly all States, these signs may still not contain flashing, intermittent or moving lights.  Note: The 1996 FHWA memo does not refer to “commercial” electronic variable message signs, but refers merely to “changeable” message signs. The available record does not indicate whether the change in this CEVMS terminology was deliberate or merely inadvertent. 69

FHWA CHANGES ITS POSITION September 25, 2007 - Guidance Memorandum Signed by Associate Administrator  FHWA purportedly changed its longstanding interpretation of the HBA on September 25, 2007 re: intermittent lighting. Scenic America argues that FHWA went far beyond a mere interpretative change.  FHWA advised that a range of acceptability was between 4-10 seconds and recommended 8 seconds for the frequency of a changeable message sign utilizing lights. FHWA again omitted the term “commercial” in describing the variable message signs and made no reference whatsoever to the public service information exceptions set forth in the FSAs.  In 2013 U.S. District Judge Boasberg described it this way: “In 2007, the Federal Highway Administration issued a ‘Guidance’ that paved the way for the construction of digital billboards along the nation’s highways. . . . Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System .’ (Emphasis added.) 70

US Dist. Ct. Summarizes Scenic America’s Position  “First, it is a legislative rule promulgated without the notice-and-comment procedure required by the APA. See 5 U.S.C. § 553.”  “Second, it creates new lighting standards for billboards without "agreement between the several States and the Secretary [of Transportation]," as required by the HBA. See 23 U.S.C. § 131(d).”  “[Third], it establishes lighting standards for billboards that are inconsistent with "customary use," another violation of the HBA. See id.” 71

Court Opinion re: Scenic America’s Standing and Injury  “Prior to the Guidance, most States did not allow digital billboards because they did not believe that the language of their FSAs [Federal State Agreements] or the decision makers at the FHWA would permit such proposals.”  “After the Guidance, States may now successfully petition the FHWA to amend their regulations to allow the construction of such billboards because the agency has made clear its position that doing so does not violate their FSAs .” 72

District Court Rejects Claim that the Guidance Was Not Final Agency Action  “Nothing else in the document suggests that the FHWA’s conclusion on this point is ‘tentative, open to further consideration, or conditional on future agency action.’ City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007).”  “ The 2007 Guidance does not just announce the FHWA’s vision of the law – that digital billboards are not ‘flashing,’ ‘intermittent,’ or ‘moving’ lights; it also commands Division Offices to turn that vision into reality.” 73

Recap – Scenic Arizona Decision in 2012 “Because the combination of LEDs used to display each brightly lit image on the billboard changes every eight seconds , the billboard’s lighting necessarily is intermittent under the plain meaning of the statute. Thus, we are not persuaded by American Outdoor’s attempt to exempt its billboard from the bar on intermittent lighting.” “The billboard uses multiple arrangements of lighting to display images that stop and start at regular intervals, which means it uses intermittent lighting.” Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al. , 268 P.3d 370, 378 (Ariz.App. Div. 1 2012). 74

Recap – Rutgers Law Review in 2012  “A court need not consult a dictionary to know that digital signs violate the letter and spirit of the HBA, and the failure of the FHWA to do its part "to promote the safety and recreational value of public travel, and to preserve natural beauty" has created an imbalance of power that leaves the general public at a loss.” - Quote from Between Beauty and Beer Signs: Why Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965 , Susan C. Sharpe, Rutgers Law Review, Vol. 64, Issue 2, (Winter 2012), at pp. 325-326 75

Recap – 1966 Post- Hearings Report; Pre-FSA • Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information. • During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs , by the use of intermittent or moving lights 76

District Court June 20, 2014 Memorandum Opinion  The District Court’s Memorandum Opinion now on appeal begins with the following statement:  “This administrative -law dispute involves a conundrum that has long bedeviled the federal courts: How should rules written in the past apply to new and unforeseen circumstances in the present ?” 77

District Court June 20, 2014 Memorandum Opinion  The District Court’s opening statement about past and present goes directly to the heart of the now pending appeal.  Did Congress in October 1965 mean what it said when it came to only allowing the erection and maintenance of signs whose lighting was consistent with what was then “customary use”?  And what was the purpose of the mandated hearings across America, March to May 1966, when it came to determining what was then customary use? 78

Safety Concerns of Digital Signs And How to Deal with Them

Safety Concerns Not New  Research on safety issues of roadside billboards since the 1930s  First study on effects of digital signs (CEVMS) by FHWA in 1980  Early studies inconsistent, but  More rigorous studies found concerns  Found 15 impacts of CEVMS on traffic safety and visual environment  Recommended further research (not begun for 30 years) The Veridian Group, Inc. 80

Visual Distraction  Many definitions, but this is typical:  Diversion of the driver’s visual attention away from the road and traffic towards a competing activity or object that is irrelevant to the driving task. The Veridian Group, Inc. 81

How Are Digital Billboards Different than Traditional?  Human eye is drawn to the brightest objects in the scene and those that show motion/apparent motion  This is called phototaxis or phototropism • Sometimes called the “ moth effect ”  Research (e.g. Theeuwes) shows that this response is both is automatic and unavoidable  DBBs use these features to capture attention  In the US, DBBs typically change message every 6-8 seconds The Veridian Group, Inc. 82

More Differences  Size potential – almost limitless  A 1000 square foot sign has been proposed for South San Francisco  Compelling high definition imagery  Intermittency and image change at will  Potential for message sequencing  Potential for interactivity with driver The Veridian Group, Inc. 83

Worldwide, Much Research in the Past 15 years • Industry reports claim no safety issues. – But these reports are misleading, contradicted by their own data. • Nearly all independent research in the past 15 years shows safety issues with CEVMS. • A 2011 Canadian study found a causal relationship between video billboards and crashes when a lead vehicle braked hard. • Long awaited FHWA study was released in December 2013 – fatally flawed as described in a 50 page peer-reviewed critique. The Veridian Group, Inc. 84

The Research Is Clear  More recent research  stronger findings  Provides a basis to understand the problem  Drivers ’ eyes off road for 2 sec or longer  substantially higher crash risk (2.8x) • NHTSA/VTTI “ 100 car study ”  Digital signs take drivers ’ eyes off road for longer than 2 sec 3x more often than conventional billboards. • Found in industry study – but result unreported The Veridian Group, Inc. 85

Recent Research The Veridian Group, Inc. 86

8 New Studies 2012-15  US (University of Massachusetts)  Sweden  Israel  Denmark  US (Federal Highway Administration)  US (University of South Dakota)  US (Albion College – Michigan)  Canada (Transportation Association of Canada) All but FHWA shed new light on safety concerns The Veridian Group, Inc. 87

Denmark  On-road instrumented vehicle – 2013  Excellent summary of other recent research  Camera system to track eye movements  GPS to record speed behavior  Laser scanner to measure distance to other vehicles • Significant improvement to prior studies since it measures actual in- traffic situations. • Calculated a “safety buffer” – time available to driver to respond to a sudden action of the vehicle ahead after turning visual attention back to the road after viewing a billboard  Used the empirically derived algorithm for measuring distraction developed by VTTI. • Any 2 seconds with a 6-second sliding window (odds ratio ~2) The Veridian Group, Inc. 88

Denmark contd.  Results:  109 drives; 233 glances; 16 billboards  Duration of successive glances per billboard: • 22% >2.0 seconds • 10% > 3.0 seconds  Safety buffer • ~25% of glances occurred with TTC < 2 seconds to vehicle ahead • ~20% of glances occurred with TTC < 1.5 seconds to vehicle ahead  For every sixth drive, visual distraction occurs  Visual distraction occurs to substantial part of all road users; not limited to a single category of driver The Veridian Group, Inc. 89

Getting the Research Right The Danish study is valuable, not only because it is rigorous, but because this research is very difficult to get right. Here are some of the variables that need to be addressed: Sign size, setback from road, height above grade  Proximity to decision points – exits, entrances, merges, lane drops  Luminance (brightness) levels at night  Frequency of message change (dwell time)  Message transition time, transition effects  Colors and contrast of figures and background  Number of words/characters  Font/letter size  Proximity to other advertising signs, official traffic signs  Traffic speeds, volumes; sight distance to sign  Sight distance to sign  The Veridian Group, Inc. 90

Human Factors Research Findings  The evidence from recent human factors studies shows the adverse impacts of digital billboards.  Drivers are less able to maintain lane control – they drift while looking at the billboard, and then make a sudden steering reversal after returning their eyes to the road ahead.  Drivers tend to look at billboards while leaving insufficient following distance to the vehicle ahead. The Veridian Group, Inc. 91

Federal Highway Administration  Spent 4 years, over $500K  Measured driver eye glances in instrumented car  Peer reviewers of draft report found eye glance data to be unrealistically brief, not reasonable.  Took 9 months to revise the report  No explanation for errors; not again subjected to peer review.  Final report unnumbered; fatal errors in assumptions, measurements, design, analysis.  Report intended to form basis for policy – but no longer reasonable to do so.  Conclusions indefensible. The Veridian Group, Inc. 92

Transportation Association of Canada  A thoughtful, comprehensive study - 2015  Literature review  Applies human factors and traffic engineering principles  Interviewed sign developers/owners/operators  Product: Guidelines available for implementation by Provincial and local government agencies.  Key recommendation: Digital advertising signs should be regulated such that they emulate static signs.  Several provocative statements, unsupported guidelines, and inconsistent recommendations. The Veridian Group, Inc. 93

TAC contd.  “By permitting (DBBs), jurisdictions are willingly and knowingly accepting an increase in collision frequency.” (p. 18).  “… (DBB dwell times) of 20 seconds or longer can limit increases in collisions due to distraction of these signs to less than five percent.” (p. 73) The Veridian Group, Inc. 94

Albion College - Michigan  A simple before-and-after comparison of crashes in the vicinity of digital billboards compared with overall crashes: 2004 2012 All limited access primary road 30106 27392 crashes ≤0.50 mi from digital billboards 2489 2545 ≤0.25 mi from digital billboards 1202 1286 ≤0.10 mi from digital billboards 402 431 The Veridian Group, Inc. 95

Albion College – contd.  The actual change in the number and percent of crashes from 2004 to 2012 was as shown below.  The proportions of digital billboard-proximal traffic crashes on Michigan freeways are significantly higher “after” than “before” the digital billboards were installed. Number Rate, % All limited access primary road -2714 -9.01 crashes ≤0.50 mi from digital billboards 56 2.25 ≤0.25 mi from digital billboards 84 6.99 ≤0.10 mi from digital billboards 29 7.21 The Veridian Group, Inc. 96

Albion College – contd.  The authors knew that their methods were simplistic, and proposed:  An independent assessment of their results, and  A “credible and widely recognized sponsor” to reevaluate their methods and data, and publish the results.  Billboard industry heavily criticized their report. The Veridian Group, Inc. 97

Albion College – contd.  So what happened?  Funding was found for a follow-up study  A contract was awarded to UMTRI to redo the study  The billboard industry used its influence to have the funding pulled and stop the study before it began. The Veridian Group, Inc. 98

What are the Safety Concerns? The Veridian Group, Inc.

Principal Safety Concerns  Time, place and manner of operations and use:  Display (dwell) time too brief • The image change captures the drivers’ attention • Message duration often too brief to read • Driver looks in anticipation of next message • (Zeigarnik effect – long used in advertising)  Excessive nighttime brightness • Industry guidelines, adopted by many States, enable DBBs to be up to 10 times brighter than appropriate The Veridian Group, Inc. 100