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.
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
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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
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
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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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