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
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          |Author:   |Huff                                                  |
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          |Version:  |2/19/2016                                             |
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          |Urgency:  |No                     |Fiscal:      |Yes             |
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          |Consultant|Alison Dinmore                                        |
          |:         |                                                      |
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          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. 







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          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  








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               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  








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               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  








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            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  








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            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  








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            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  








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            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  








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          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 --








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