Scenic America lawsuit seeks to overturn FHWA ruling on digital billboards

Key Documents in Chronological Order

January 19, 1990 FHWA memo affirming FHWA’s interpretation of Federal law as implemented under individual State / Federal Agreements to prohibit commercial electronic variable message signs (CEVMS).  “The prohibited CEVMS must be considered to be illegal,” the memo states.

July 17, 1996 FHWA memo restating agency’s position that nearly all state agreements prohibit flashing, intermittent or moving lights.

August 7, 2007 email from Kentucky Division of FHWA requesting that Headquarters follow letter and intent of the federal law and advising Headquarters that digital billboards violate their state federal agreement.

September 24, 2007 email from FHWA counsel Bob Black to other FHWA staff describing his difficulty defining the word “intermittent” and suggesting future lawsuits might turn on that word.

September 25, 2007 FHWA guidance memorandum that gives states the green light to allow digital billboards by stating commercial signs that change messages every 4 to 10 seconds are not “intermittent.”

February 23, 2010 Scenic America petition for rulemaking asking FHWA to adopt a moratorium on new digital billboard permits and to revoke the 2007 guidance memorandum.

April 8, 2010 letter from FHWA Administrator Mendez acknowledging receipt of petition and saying FHWA will respond “as soon as possible.”

November 17, 2011 the Arizona Court of Appeals ruled that digital billboards on state and federal highways are illegal because they violate the state’s ban on intermittent light.

December 19, 2011 email from Bob Black to Scenic America counsel apologizing for lack of FHWA response to petition and promising a response by mid-January 2012.

September 21, 2012 note in Rutgers Law Review argues that digital billboards violate the spirit and letter of the HBA.

January 23, 2013 lawsuit by Scenic America asking the Court to overturn the 2007 FHWA guidance memorandum.

October 23, 2013 ruling by Judge Boasberg that Scenic America has standing to sue FHWA and ordering the case to proceed.

June 20, 2014 ruling by Judge Boasberg to dismiss Scenic America’s lawsuit.

December 22, 2014 appeal by Scenic America for review in the U.S. Court of Appeals for the District of Columbia Circuit.

December 30, 2014 Amicus Brief in support of Scenic America by the American Planning Association, the Garden Club of America, the International Dark-Sky Association and the Sierra Club.

February 2015 reply briefs by U.S. DOT and OAAA in the U.S. Court of Appeals.

September 6, 2016 ruling by the U.S. Court of Appeals dismissing Scenic America’s appeal.

December 7, 2016 Scenic America Petition for Writ of Certiorari in the Supreme Court of the United States.

May 2017 reply briefs by U.S. DOT and OAAA in the Supreme Court of the United States.

June 2017 reply brief by Scenic America in the Supreme Court of the United States.

On January 23, 2013, Scenic America filed a lawsuit in the U.S. District Court for the District of Columbia seeking to overturn a controversial Federal Highway Administration (FHWA) ruling.  The ruling reversed the agency’s long-held position that barred intermittently changing commercial digital billboards.  The lawsuit alleges that FHWA has wrongfully allowed commercial digital billboards to proliferate along federal highways nationwide.

Lawsuit summary as of December 31, 2014Click here to read a summary of the lawsuit by Ryke Longest, Duke University Clinical Professor of Law, and Liz Wangu, Duke Law Student.

Media Coverage of Lawsuit:

Syndicated columnist Neal Peirce says it’s time to stop the spread of digital billboards.

USA Today says glaring digital billboards “visually scream for attention.”

Campaigns & Elections
ABA Journal
The Daily Record
Phoenix Business Journal

The lawsuit, filed on behalf of Scenic America and its members by Georgetown Law Center’s Institute for Public Representation, asserts that FHWA’s 2007 guidance violates the lighting standards established under the customary use provisions of Lady Bird Johnson’s Highway Beautification Act.

“FHWA continues to ignore the standards established by the Highway Beautification Act. If enforced, these standards would protect citizens from the negative impacts of digital billboards: less-safe roads, diminished quality of life and lower property values,” said Mary Tracy, president of Scenic America.

Digital billboards, brightly-lit signs with commercial messages that change intermittently every few seconds, appeared along federal highways around 2005.  State transportation officials, charged with controlling outdoor advertising and following FHWA’s longstanding prohibition on intermittent commercial message lighting, turned to FHWA for additional guidance.  Under immense pressure from a powerful billboard lobby to approve the signs, FHWA reversed its long-held position.

Since FHWA reversed its position, the number of digital billboards has risen to nearly 4,000 (nearly a 400% increase) around the country.  Most of these billboards operate along the federal highways regulated under the HBA.  Drivers are being distracted, adjacent properties are being devalued, homes are being invaded by lights shining through windows, and many individuals and scenic groups have spent thousands of dollars and thousands more hours trying to stop these invasive signs.

“We receive distress calls from people all over the country who find these TVs-on-a-stick lining our highways to be distracting eyesores, and in some instances the signs even shine into the windows of nearby homes,” said Tracy.  “These billboards devalue private property, distract drivers, tarnish the beauty of our natural and built landscapes and negatively impact the quality of life for many people.  FHWA has been totally unresponsive, and we can no longer stand by and watch this agency ignore Lady Bird’s Highway Beautification Act.”

Representing Scenic America are Daniel H. Lutz, Staff Attorney, and Hope Babcock, Director, of the Institute for Public Representation, Georgetown University Law Center. Thomas Gremillion served as Staff Attorney during filing of the initial lawsuit.