BILL ANALYSIS Ó SENATE COMMITTEE ON TRANSPORTATION AND HOUSING Senator Jim Beall, Chair 2015 - 2016 Regular Bill No: SB 1397 Hearing Date: 4/19/2016 ----------------------------------------------------------------- |Author: |Huff | |----------+------------------------------------------------------| |Version: |2/19/2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Alison Dinmore | |: | | ----------------------------------------------------------------- SUBJECT: Highway safety and information program DIGEST: This bill permits the California Department of Transportation (Caltrans), following the completion of a demonstration phase and upon receipt of federal approval, to enter into public-private partnerships to use changeable message signs (CMS) for commercial advertising purposes when they are not being used for safety- and transportation-related messages. ANALYSIS: Existing law: 1)Requires all states to adopt the federal Manual on Uniform Traffic Control Devices (MUTCD), or to at least substantially comply with it. The federal MUTCD prescribes standards for signs, signals, markings, and other devices used to guide traffic on streets and highways throughout the country. California has adopted its own MUTCD, which has been approved by federal officials as being "substantially in compliance" with the federal MUTCD. 2)Provides that traffic control devices or their supports shall not bear any advertising message or any other message that is not related to traffic control. 3)Provides that only those traffic control devices that conform to the California MUTCD may be placed on a street or highway. SB 1397 (Huff) Page 2 of ? This bill: 1)Permits Caltrans to enter into an agreement with one person or legal entity to use a CMS sign for a single project, which shall include a demonstration phase. Specifically, the following terms are defined: a) "Agreement" means a legally enforceable agreement, as specified, for the project to install and operate CMS. b) "Demonstration phase" means the initial phase of the project whereby the safety, operational, and fiscal viability of the placement of advertising on CMS in exchange for revenue to the state and an upgraded CMS are demonstrated. c) "Project" means to study, plan, design, construct, reconstruct, develop, finance, maintain, rebuild, improve, repair, lease, operate, or any combination of these, a state-of-the-art, full-color network of CMS within the right-of-way of the state highway system. 2)Requires Caltrans to conduct a best-value procurement and negotiate an initial agreement to become effective upon receipt of any necessary federal authorization. 3)Requires the agreement with Caltrans to do all of the following: a) Provide for the construction, upgrade or reconstruction, and operation of the CMS. Caltrans shall be responsible for the maintenance of the CMS. b) Provide that any ownership interest shall completely revert to Caltrans at the expiration of the agreement. c) Provide that all Caltrans emergency notifications shall have priority over other messaging, including advertising. d) Provide that Caltrans, in consultation with the California Highway Patrol, shall retain the ability to make a determination on the safety of the CMS and may take actions necessary to protect public safety. e) Provide that Caltrans shall conduct a demonstration phase of the project as a condition precedent to the full implementation of the agreement described in this section. f) Provide that Caltrans shall retain an independent consultant to perform an evaluation of the results of the SB 1397 (Huff) Page 3 of ? demonstration phase. Caltrans shall review the results of the demonstration phase and determine in its discretion whether the placement of commercial advertising with all CMS creates an unsafe distraction to motorists, and shall consider any other issues of concern. g) Provide for the person or legal entity contracting with Caltrans to share revenues generated in connection with the use of the CMS for commercial advertising in furtherance of the public interest. 1)Requires the demonstration phase to do all of the following: a) Involve the construction, upgrade or reconstruction, and operation of CMS at current and planned locations equal to but not less than 15% of the number of existing and planned CMS signs at the initiation of the project and conducted by locations selected by Caltrans. b) Begin immediately following federal approval and last until full implementation is authorized, and if full implementation is not authorized, then for a period of time sufficient to allow the person or legal entity contracting with Caltrans to recover its capital and related costs for the project. 1)Requires revenues from CMS to be allocated between the person or legal entity with whom the agreement is made and with Caltrans in accordance with the agreement details. Revenues generated from advertising on CMS and received by Caltrans shall be deposited into the State Highway Account in the State Transportation Fund. Funding shall be subject to appropriation by the legislature, consistent with the provisions of any federal authorization. 2)Requires Caltrans to adopt policies and guidelines in connection with the content and formatting of the advertising. Advertising on CMS shall be in the form and under those conditions as may be determined by Caltrans and as set forth in standards, guidelines, and procedures adopted by Caltrans. a) Advertising shall not compromise safety or Caltrans' safety communications. b) CMS subject to this bill shall be exempt from Section 5408 of the Business and Professions Code, which permits CMS to be placed within 660 feet of the right-of-way if meeting specified requirements, such as size and display SB 1397 (Huff) Page 4 of ? limitations. c) Caltrans shall not enter into an agreement with any person or legal entity that will display or advertise alcohol, tobacco, firearms, sexually explicit material, or any illegal activity 1)Requires CMS to meet the design, construction, and operating requirements in the Caltrans standards and guidelines. 2)Permits Caltrans to use CMS for emergency messages, as needed, and requires dedicated time to use the CMS for traveler information, motorist safety, awareness campaigns, and any other public service messaging, without providing compensation to the person or legal entity with whom it enters into an agreement. 3)Requires Caltrans, no later than two years after the implementation of the project, to submit a report to the relevant fiscal and policy committees of the legislature, information including but not limited to the following: a) The status of implementation, such as number of signs placed and locations b) The amount of revenue received, cost savings to Caltrans, and costs incurred by Caltrans c) An assessment of the effect that the project has had on public safety, emergency notification, traveler information, and motorist safety and awareness campaigns d) A description of the types of advertising content displayed by the CMS COMMENTS: 1)Purpose. According to the author, California roads are in disarray and California ranks 47th in overall highway performance and 46th in urban congestion. Highway system repair and maintenance is underfunded by $5 billion annually, and local street repair is underfunded by $1.8 billion a year. Currently, $1 billion in truck weight fees that are designed to maintain roads has been diverted in the general fund annually since 2010. The author states that SB 1397 would permit Caltrans to upgrade existing CMS to provide state-of-the-art responsive, high-definition information capability for enhanced statewide SB 1397 (Huff) Page 5 of ? emergency and traveler communications, at no cost to the state, through a public/private partnership. This would begin as a demonstration project initially conducted at a minimum of 15% of existing and planned locations; statewide application would follow demonstration of the efficacy of the project. Additionally, revenues generated from this bill could be used for critically needed and currently unfunded highway projects and road maintenance and repairs. 2)California and federal MUTCD. Federal law requires all states to adopt the federal MUTCD, or to be in substantial compliance with it. California has adopted its own MUTCD, which has been approved by federal officials as being "substantially in compliance" with the federal MUTCD. In California, the MUTCD is developed by the Traffic Control Devices Committee (CTCDC). The CTCDC is convened and chaired by Caltrans and the committee is comprised of eight voting members representing the California Highway Patrol, the League of California Cities, the California State Association of Counties, and auto clubs. CTCDC meetings serve as required public hearings prior to the promulgation and adoption of rules related to traffic signs, signals, and pavement markings. The federal and California MUTCDs contain provisions that regulate CMS. These provisions state that CMS have a large number of applications, including but not limited to: a) Incident management and route diversion b) Warning of adverse weather c) Special event applications associated with traffic control or conditions d) Control at crossing situations e) Lane, ramp, and roadway control f) Priced or other types of management lanes g) Travel times h) Warning situations i) Traffic regulations j) Speed control aa) Destination guidance Both the federal and the California MUTCDs limit the use of CMS to traffic operations and regulatory, warning, and guidance information, and use of CMS for advertising is SB 1397 (Huff) Page 6 of ? expressly prohibited. Safety- and transportation-related messages, however, such as, "DON'T DRINK AND DRIVE," "SEAT BELT BUCKLED?," and "OZONE ALERT CODE RED - USE TRANSIT" are authorized. These messages are on a schedule set by Caltrans. The federal and California MUTCDs also specify that a CMS may be used to display a safety, transportation-related, emergency homeland security, or AMBER Alert message and that the display format shall not be of a type that could be considered similar to advertising displays. In California, the CMS are utilized for AMBER, Silver, and Blue Alerts. Additionally, following the Governor's State of Emergency declaration regarding the drought, the CMS have been used to display drought-related messages. 1)Federal preemption. Federal law requires all states to comply with the federal MUTCD, or to be substantially compliant with it. To utilize the CMS for advertising, Caltrans must seek a waiver from the federal government. Additionally, if Caltrans were to use the CMS as required in this bill without the receipt of a waiver, the Federal Highway Administration would be authorized by federal law to withhold 10% of the transportation funds California receives from the federal government. This amounts to $350 million (or 10% of $3.5 billion). This bill currently requires Caltrans to obtain federal approval before advertising on CMS. The author will accept amendments explicitly stating that Caltrans shall be prohibited from using CMS for advertising if the federal government advises that advertising will result in the loss of federal funds. 2)What are the effects of this bill? This bill would permit Caltrans, with federal approval and following the completion of a pilot, to enter into public-private partnerships to use CMS for commercial advertising purposes when it is not being used for safety- and transportation-related messages. The private partner would pay to upgrade the existing CMS and Caltrans would be required to maintain the CMS. Before allowing CMS to be used for advertising statewide, Caltrans would be required to conduct a pilot project at locations determined by the department. An independent consultant must perform an independent evaluation of the pilot, which shall be evaluated by the department to determine whether the placement SB 1397 (Huff) Page 7 of ? of advertising on the CMS creates an unsafe distraction to motorists and any other issues of concern. 3)Distracted driving. CMS are limited in scope to providing important traveler-related information in limited circumstances. Caltrans policy is to minimize the number of signs whenever possible to prevent "sign information overload," which can interfere with drivers' ability to process information and drive safely. In fact, both the federal and California MUTCD provide that, "Traffic control devices or their supports shall not bear any advertising message or any other message that is not related to traffic control." For example, messages about drunk driving are on set schedules shortly before holidays in which drunk driving is traditionally elevated, such as New Year's Eve, St. Patrick's Day, and the Fourth of July. Caltrans also seeks to keep the signs blank whenever possible to prevent distracted driving. Expanding the use of CMS for advertising may increase distracted driving, reduce safety on California highways, and reduce the effectiveness of safety messages. 4)Size matters. California currently has over 832 CMS in operation. The bill requires the demonstration project to utilize no less than 15%, or over 120 CMS. Given concerns over distracted driving, the author will accept amendments leaving the number of participating CMS in the demonstration project to be determined by Caltrans, which number shall be sufficiently substantive to evaluate the impacts of the demonstration. 5)Scenic highways. The Federal Highway Beautification Act of 1965 called for the control of outdoor advertising, including removal of certain types of signs, along the nation's growing interstate system and the existing federal-aid primary system. The California Legislature instituted the State Scenic Highway Program in 1963, and since then, Caltrans has maintained it. This program establishes the state's responsibility for the protection and enhancement of California's natural scenic beauty. Pursuant to that goal, the Legislature makes portions of the state highway system eligible to be a state scenic highway. Segments of freeways that are classified "landscaped freeway" are subject to the Outdoor Advertising Act, which preclude the installation of billboards. In order to maintain the integrity of California's designated scenic highways, the author will SB 1397 (Huff) Page 8 of ? accept amendments to prohibit advertising on CMS on officially designated Scenic Highways. 6)Opposition. According to the opposition, the California State Outdoor Advertising Association (CSOAA), this bill would be a significant departure from past state and federal policy that only permits traffic safety messages and AMBER alerts on CMS and fails to consider local control issues and content management. Federal law does not permit commercial advertising signs on the right-of-way and requires states to adopt the federal MUTCD. A violation of these laws includes a penalty of up to 10% of the state's federal funding. Additionally, this bill may create spacing conflicts with existing inventory along the right-of-way, and is unclear as to which signs will be eligible for application and approval. Further, this bill creates ambiguity for outdoor companies that maintained lawfully permitted displays in communities that have adopted moratoriums on outdoor advertising. CSOAA also raises a concern over the state stepping into a position where it can regulate speech. In particular, CSOAA points to two cases, one in Georgia and one in Missouri, in which the Ku Klux Klan (KKK) sued those states over denials of their applications to their respective Adopt-a-Highway programs administered by their respective state departments of transportation. The case in Georgia is pending in front of the Georgia Supreme Court. In Missouri, however, a U.S. District Court judge ruled that Missouri's refusal to allow the KKK to participate in the Adopt-a-Highway program was unconstitutional, and when the 8th Circuit Court of Appeals confirmed that finding on appeal in March 2000, the state had to erect signs announcing the KKK's sponsorship of a portion of I-55. CSOAA states that its members exercise editorial control to adjust the content of advertising. Related Legislation: AB 400 (Alejo, Chapter 693, Statutes of 2015) - required Caltrans, subject to federal approval, to update its internal policies to permit CMS to display specific types of messages related to voting. SB 853 (Committee on Budget and Fiscal Review, Chapter 27, Statutes of 2014) - required Caltrans to report to the Legislature by January 10, 2015, on the subject of advertising on electronic CMS on the state highway system, and on the SB 1397 (Huff) Page 9 of ? feasibility of a pilot project in that regard, including estimates of revenue. Caltrans has not yet delivered the report. SB 854 (Committee on Budget and Fiscal Review, 2010) - would have authorized Caltrans to lease space for advertisements on digital messaging signs on the state highway system that are currently used for traveler information. These changes in statute would have required Caltrans receive a federal waiver before entering into any contract for advertisements on digital messaging signs and would have required that any such contract be provided to the legislature for a 30-day review prior to enactment. This bill failed passage on the Senate floor. AB 1614 (Committee on Budget, 2010) - would have authorized an experimental program that would allow advertising on upgraded CMS on highway right of way. A federal waiver, or a change in federal law, was necessary to implement this program, and this bill stated the program cannot be implemented unless approved by the federal government. This bill failed passage on the Senate floor. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No POSITIONS: (Communicated to the committee before noon on Wednesday, April 13, 2016.) SUPPORT: Transportation California (sponsor) Associated General Contractors California Construction and Industrial Materials Association California Nevada Cement Association California-Nevada Conference of Operating Engineers OPPOSITION: California State Outdoor Advertising Association -- END -- SB 1397 (Huff) Page 10 of ?