FHWA Says Digital Billboards Can Be Acceptable

October 10, 2007

You may have thought that the billboard wars were largely over, after the efforts of Lady Bird Johnson, the passage of the Highway Beautification Act of 1965, and the subsequent adoption of regulations by states and local communities. But on they go.

One of the latest flashpoints is digital signs, which change images every 4 to 10 seconds and have LED lights that are reportedly brighter than the sun. With roughly 700 of them already installed, in most, if not all, states, the billboard industry is touting them as the next big thing.

As they have begun to pop up - sometimes amid charges by communities of deception and subterfuge by various players in the billboard industry - there has been controversy over whether they are legal at all, especially along Interstates and other designated federal aid highways that are subject to the Highway Beautification Act. That's due in part to language in Federal Highway Administration (FHWA) documents that prohibits billboards that have "flashing or intermittent lights" or that "create a traffic hazard" - Some Considerations in Allowing an Off-Property Sign (items number 8 and 11, respectively).

Now that many digital billboards are in operation, FHWA issued a guidance document on Sept. 25, 2007, that updates 1996 guidance and gives states direction about when the electronic billboards may be permissible. FHWA: Catherine O'Hara, 202-366-9901; media: 202-366-0660.

FHWA says that images that change about every 8 seconds, with a 1-2 second transition time between changes, that aren't "unreasonably bright for the safety of the motoring public," and that don't have flashing images, can be acceptable if they meet with state or local approval and comply with the current agreements between a state and FHWA.

The advocacy group Scenic America says FHWA offers no justification for its findings, and says the agency has made an illegal interpretation of the regulations. Scenic America says the result will be a surge of deadly, energy-consuming eyesores: Kevin Fry, 202-638-0550 x11;Information on Electronic Billboards (includes an Oct. 2, 2007, press release, and a link to an 8-page background document, "Unsafe at Any Speed; Billboards in the Digital Age").

The group also charges that the use of a guidance document effectively avoided public review of the issue, and that a wide range of interested parties, including Congress (US Senate Committee on Environment and Public Works; US House Transportation and Infrastructure Committee), were never consulted. The public now can comment only on a case-by-case basis during local reviews. State and local jurisdictions are technically allowed to impose more stringent restrictions than FHWA, though Fry says that many state laws make it difficult to effect any change at the point of local review. Local controversies are occurring in a number of communities, according to media reports tracked by Scenic America on its site.

In addition, the group says the safety of such billboards hasn't been established, and points out that any study of safety issues, by FHWA or others such as the National Academies' Transportation Research Board likely won't be completed until at least 2009. If problems turn up, it's uncertain what remedies there may be for existing billboards. Typically, any change to an existing billboard requires compensation for lost revenue.

The multibillion-dollar billboard industry, which historically has made major donations to various politicians, has gone through a period of dramatic consolidation in recent years. Among the few remaining players, three have acquired about three-fourths of the market: