The Supreme Court on Oct. 16 declined to hear an outdoors group's case against the Department of Transportation (DOT) regarding guidelines on digital billboards. The denial ends a four-year legal battle by Scenic America to terminate guidance to the Federal Highway Administration’s field offices on how to evaluate state plans for digital billboards on Interstate Highways.
“A decade ago, a federal agency responded to questions from States – which is routine -- about a new technology known as digital billboards. The courts concluded that federal guidance to the States was appropriate,” Nancy Fletcher, president and CEO of the Outdoor Advertising Association of America (OAAA), said in a statement. “Week after week, the industry works with the government to communicate with the public on digital billboards on behalf of safety and other important shared goals.”
The Federal Highway Administration (FHWA) in 2007 released a four-page guidance memo to states seeking advice on how to regulate digital billboards. A variety of government agencies use digital billboards to help locate missing children (AMBER Alerts), find fugitives, and deliver emergency information. The guidance recommended display durations of four to 10 seconds and urged avoidance of glare. Digital billboards typically display static messages for six or eight seconds in rotation.
Scenic America has long sought to limit digital billboards, arguing that they are visual pollution and a distraction for drivers in violation of the Highway Beautification Act. In 2013, Scenic America sued the Federal Highway Administration and DOT.
The lawsuit filed in federal court claimed the federal agency violated procedure because its guidance was actually a de facto rule that warranted public comment and that digital billboards violate federal law because of their modern lighting.
U.S. District Court Judge James E. Boasberg dismissed the case in 2014, with prejudice. Scenic America appealed.
A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia heard the case in 2015. The appeals court rejected the plaintiff’s case. On Oct. 16, 2017, the U.S. Supreme Court denied Scenic America’s petition to take the case (writ of certiorari). Justice Gorsuch, joined by Chief Justice Roberts and Justice Alito, expressed interest in the issue of agency deference, but said, “the proper course is to the deny certiorari.”
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