BILL ANALYSIS
AB 109
Page 1
Date of Hearing: March 17, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 109 (Feuer) - As Introduced: January 13, 2009
SUBJECT : Outdoor Advertising: Digital Advertising Displays
KEY ISSUE : Should the state allow federal studies evaluating
the impact of changeable electronic billboards on traffic safety
and driver distraction to be completed before permitting more
such displays to be installed adjacent to California highways?
SYNOPSIS
This bill responds to numerous concerns about the potential
hazards of brightly-lit, rapidly changing digital advertising
displays along the state's highways, roads, and streets.
Municipal, state, and federal government agencies have expressed
the fear that such displays distract motorists, especially when
lining California's notoriously crowded, fast-moving, and
complex network of highways, freeways, and interchanges.
Reflecting this concern, official studies are currently under
way by the Federal Highway Administration (FHWA) and the
American Association of State Highway Officials (AASHO) in order
to evaluate the impact of changing digital displays on traffic
safety and driver distraction. The last phase of this study
will be completed sometime in 2010. In order to protect public
safety until such time as these studies can be completed and
evaluated, this bill would temporarily prohibit the
construction of any new digital display signs or the conversion
of existing signs until January 1, 2012. This bill would not
affect or require the removal of any digital displays already in
place. Rather, the bill merely imposes a moratorium on adding
any more such displays until such time as their impact on public
safety can be properly evaluated. The bill would also prevent
the California Department of Transportation (Caltrans) from
converting official highway message signs, including Amber
Alerts, to permit digital advertising displays. According to
the author, this time-restricted measure not only protects
public safety, it will also prevent having to remove displays -
with compensation to owners at taxpayer expense - should the
federal studies conclude that the displays are unsafe. Senator
Diane Feinstein has called upon the U.S. Department of
Transportation to deny a Caltrans request to permit Amber Alert
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signs to post commercial advertisements, since to do so would
not only distract drivers' attention but also compete with, and
possibly detract from, the Amber Alert message. Senator
Feinstein also claims that permitting Caltrans to use Amber
Alert signs for other purposes may violate federal law.
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SUMMARY : Prohibits, until January 1, 2012, certain outdoor
advertising and message displays from being constructed as, or
converted to, a digital advertising display, as defined.
Specifically, this bill :
1)Provides that, until January 1, 2012, no advertising display
that is visible from a highway, as defined, shall be
constructed as, or converted, enhanced, improved, modified,
modernized, or altered into, a digital advertising display.
2)Provides that, until January 1, 2012, no official highway
changeable message sign shall be constructed as, or changed
into, a digital advertising display for the purpose of
displaying messages other than official traffic operations or
public safety messages.
3)Defines "digital advertising display" to mean any display of
still, scrolling, or moving images, including video and
animation, that may be changed remotely through electronic
means and utilizes a series of grid lights, including cathode
ray, light-emitting diode display (LED), plasma screen, liquid
crystal display (LCD), fiber optic, or other electronic media
or technology. Specifies that this definition may include a
"message center," which is an advertising display where the
message is changed more than once every two minutes, but no
more than once every four seconds.
4)Defines "official highway changeable message sign" to mean a
traffic control device owned and operated by or on behalf of
the Department of Transportation or local or regional
transportation agency designed to provide the public with
traffic operations and public safety information.
5)Provides for a civil penalty of $3500 for each day that a
digital display or official highway changeable is in violation
of the provisions of this bill. Specifies that the civil
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penalty shall be assessed and recovered in an action brought
by the Attorney General or by any district attorney, county
counsel, or city attorney, who is also authorized to seek an
injunction against further violation of this section.
6)States legislative intent to occupy the field in this area and
to supersede any local ordinances or agreements that are
contrary to the bill's provisions.
EXISTING LAW :
1)Provides generally, under the Outdoor Advertising Act, for the
regulation of any billboard or other adverting display that is
within view of public highways. (Business & Professions Code
Sections 5200-5486.)
2)Declares that regulating advertising displays adjacent to any
interstate highway or primary highway is necessary to promote
the public safety, health, welfare, and convenience and
enjoyment to public travel, to protect the public investment
in such highways, to preserve the scenic beauty of lands
bordering on such highways, and to insure that information in
the specific interest of the traveling public is presented
safely and effectively, recognizing that a reasonable freedom
to advertise is necessary to attain such objectives, subject
to reasonable controls in the public interest. (Business &
Professions Code Section 5226.)
3)Permits local governing bodies to enact ordinances, including
land use and zoning ordinances, imposing restrictions equal to
or greater than those imposed by state law, so long as no
lawfully erected display is forced to be removed without
payment of compensation to the owner, subject to certain
exceptions. (Business & Professions Code Sections 5230 and
5412 through 5414.)
COMMENTS : Advertisers not only offer us "new and improved"
products, they also seek new and improved methods of reaching a
consuming public. In the past decade, for example, the static
wooden billboard has given way to a dazzling array of
brightly-lit, rapidly changing electronic displays vying for the
attention of California motorists. These new displays are no
doubt effective, but a number of studies - not to mention common
sense - suggest that exposing drivers to bright, moving displays
may contribute to driver distraction. The Federal Highway
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Administration (FWHA) is currently embarking upon the second
phase of a two-phase project on changeable digital billboards -
also known as "Commercial Electronic Variable Message Signs" -
on traffic safety and driver distraction. The FWHA study was
prompted by a review of numerous published reports on this
subject. Although not all of the reports pointed in the same
direction, the FWHA found the public safety concerns substantial
enough to undertake its own review. The second and final phase
of the study is expected to be completed in 2010. (U.S. Federal
Highway Administration, The Effects of Commercial Electronic
Variable Message Signs (CEVMS) on Driver Attention and
Distraction: An Update, Publication No. FHWA-HRT-09-018,
February, 2009.) Another study, conducted by the American
Association of State Highway and Transportation Officials
(AASHA), is expected to complete its 10-year review of the
impact of digital displays on traffic safety later this year.
In order to protect public safety in the interim, this bill
would prohibit the new construction and installation of certain
digital displays, or the conversion of existing displays, until
January 1, 2012, to allow time for the completion and evaluation
of the pending studies.
The California Outdoor Advertising Act. Existing state and
federal laws regulate, subject to multiple conditions and
exemptions, the size, placement, and presentation of billboards
adjacent to highways. In California, the Outdoor Advertising
Act (Business & Professions Code Sections 5200 et seq.) provides
for the regulation, by the Department of Transportation, of any
advertising displays within view of a public highway. State law
must also generally conform to various federal laws, including
the Highway Beautification Act of 1965 (23 USC Section 131 et
seq.). While many of the state regulations deal with structural
requirements and placement limitations, the form of the display
can also be regulated in various ways. For example, a display
cannot imitate official highway signs or traffic lights, impair
the vision of travelers on adjacent highways, or, if visible
from a state regulated highway, display "any flashing,
intermittent, or moving lights." (Business & Professions Code
Section 5403 (b),(e), (g), and (h).)
While state and federal law generally regulates billboards and
similar advertising displays, local governments may also impose
restrictions equal to or greater than any restriction imposed by
state law, but local governments may not allow a display that is
in violation of state law. (Id. 5230 and 5231.) Local
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governments are also entitled to a portion of fees and fines
under the state law, and they may also require advertisers to
obtain licenses and permits, in addition to any licenses
required by state law. (Id. Sections 5231 and 5481.)
This bill would amend the Outdoor Advertising Act to prohibit,
until January 1, 2012, certain newly constructed digital
advertising displays or the conversion of existing signs to
digital advertising displays. According to the author, this
will give the Legislature time to evaluate the federal studies
and take appropriate steps to protect public safety, if
necessary.
Caltrans Request to Place Advertisements on Traffic and Safety
Message Signs . In addition to the moratorium on new or
converted digital displays, this bill would also prevent
Caltrans from using official highway changeable signs for the
purpose of displaying digital advertising. Last fall, Caltrans
asked then U.S. Transportation Secretary Mary Peters to waive
federal laws prohibiting commercial advertisements on the
department's official message displays. According to Caltrans
director, Will Kempton, this would allow the agency to form
partnerships with private businesses that would permit the
agency to use the most up-to-date technology and to raise
much-needed revenue. (San Francisco Chronicle, October 24,
2008.) However, Kempton is also cognizant of public safety
concerns, and he has stressed that "if we determine this is not
safe, we're not going to proceed." (San Diego Union-Tribune,
October 25, 2008.)
U.S. Senator Diane Feinstein, in letters to both Kempton and
Secretary Peters, has expressed her "strong opposition to
displaying new, potentially distracting advertising on
California's safety alert signs. These signs warn motorists of
delays, hazards, and Amber Alerts. I believe advertising on
these signs would present a safety hazard on our highways and
would reduce the effectiveness of the safety messages that
appear." In addition, Senator Feinstein contends in her letter
that advertising on Amber Alerts, in particular, may constitute
a violation of federal regulations. (U.S. Senator Diane
Feinstein to U.S. Transportation Secretary Mary Peters, October
21, 2008, available at http://feinstein.senate.gov ) The Amber
Alert is a federal system, coordinated with participating state
agencies, and subject to federal law and federal regulations.
(42 USC Section 5791 et seq.; 47 CFR Part 10.)
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Removal of Displays Deemed Dangerous Will Likely Require
Compensation . Existing law treats the compelled removal of any
"lawfully erected" advertising display as a "taking," and
therefore provides, subject to limited exceptions, that no
display shall be forcefully removed without payment of just
compensation to the owner. (Business & Professions Code Section
5412.) Therefore, should the federal studies conclude that such
displays present a threat to public safety, such that state or
local agencies decide that they must be removed, those holding
the rights to display such signs will be entitled to
compensation, at taxpayer expense. By prohibiting new or
converted displays until such time as the federal studies can be
completed and evaluated, this bill will save taxpayers any
necessary compensation cost of any displays approved between the
enactment of this bill and January 1, 2012.
ARGUMENTS IN SUPPORT : According to the author, this bill will
"protect motorists from potentially hazardous driving conditions
due to the impact of digital signs on driver attention, and . .
. suspend all new construction of or conversions to digital
technology until studies on their potential safety impacts can
be reviewed. This bill would require jurisdictions statewide to
take a 'timeout' from issuance of permits for digital billboards
to learn about potential safety hazards associated with digital
billboards. The bill would further prohibit Caltrans from
converting current Amber Alert signs into digital advertising
displays based on federal and state law specifically prohibiting
advertising messages unrelated to traffic control on traffic
control devices, including changeable message signs."
Supporters uniformly contend that this is a reasonable, prudent,
and time-restricted measure designed to protect public safety
until studies can be evaluated. The City of Los Angeles, for
example, supports this measure because it will "give policy
makers time to adequately review the results of pending safety
studies on the potential driving hazards associated with
electronic billboards."
Scenic America supports this bill because it represents "a
chance for the state to take a deep breath and collect
scientific information about the safety implications of these
signs, which, after all, are deliberately designed to distract
drivers. The prudent step," according to Scenic America, "is to
take the time necessary to study [digital displays] before they
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are permitted to proliferate." Scenic America also applauds
this bill for effectively halting, at least temporarily,
Caltrans proposal to convert official highway message signs into
digital billboards carrying commercial messages. The Caltrans
proposal, according to Scenic America, would place distracting
advertising displays directly over and immediately adjacent to
the highway right-of-way, closer than most billboards which are
visible from but outside the right-of-way. Finally, Scenic
America rebuts the claims of opponents that this bill will have
adverse economic consequences by reducing effective advertising.
As Scenic America correctly points out, this bill would not
affect any existing billboards and the proposed digital
billboards that the industry wants would, in most instances,
replace existing billboards. Tens of thousands of billboards
exist along highways throughout the state, and there is no
evidence that billboards that change every few seconds are more
effective than billboards with a static message. Moreover,
Scenic America contends, any detrimental economic consequences
will be more than offset by the money saved by not having to
compensate local governments for removal.
Arguments in Opposition : The California State Outdoor
Advertising Association (CSOAA) claims that this bill is "both
unwarranted and counterproductive at this time." CSOAA argues
that this bill will have adverse economic consequences, limit
the effectiveness of public safety messages, and eliminate an
important local revenue stream for local governments. CSOAA
contends that local communities already adequately regulate
digital billboards, but that this bill imposes a complete ban on
new digital billboards and will therefore "hurt California
businesses large and small by limiting their options for most
effectively promoting their products [and] eliminate needed jobs
for workers who construct, convert, and maintain the
billboards." CSOAA also claims this bill will limit the reach
of public safety and traffic messages by prohibiting the most
modern and effective methods of communications, citing in
particular the alleged negative impact on Amber Alerts. CSOAA
claims that commercial digital billboards offer important
revenue streams that can be used for special projects or to
supplement stretched general funds. Finally, CSOAA contends
that there is no documented evidence to support claims that
digital billboards present a public safety concern.
Clear Channel Outdoor and Regency Outdoor Advertising, two of
the leading providers of outdoor digital advertising displays,
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claim that this bill is unnecessary because outdoor advertising
displays along the state's highways are already adequately
regulated by the Outdoor Advertising Act. Clear Channel claims
that, far from posing a threat to public safety, "digital
displays can be used as a public safety tool to allow up to the
minute notification to the public on issues ranging from traffic
issues, criminal activity and natural disasters, to name a few."
Regency claims, additionally, that this bill "would constitute
a unconstitutional violation of . . . of the separations of
powers doctrine," presumably because the Legislature would
purport to supersede local agreements. (Regency's lengthy
"separation of powers" analysis, however, appears to ignore that
the bill is prospective and temporary, that the Legislature is
fully within its right to preempt a field, and that existing law
already does so.)
The California New Car Dealers Association (CNCDA) and the
Motion Picture Association of American (MPAA) oppose this bill
because of its alleged impact on their respective industries.
CNCDA notes that its members are frequent users of "reader
boards" to advertise its product to consumers traveling on
nearby roads and freeways. However, CNCDA claims that local
governments already adequately regulate displays and that a
statewide prohibition would be "premature" until the FHWA
completes its study. The MPAA states that digital billboards
present "the most efficient and attractive" opportunity to keep
advertisements about new movies and television shows up-to-date.
For example, when a film wins a major award, the digital
billboards can be quickly and easily changed to reflect this.
Common Themes in Opposition Arguments : The Committee should
give due consideration to the important issues raised by the
opponents; however, it is also important to stress that this
bill imposes only a temporary prohibition, and only on new or
newly converted displays. Opponents raise three common themes
that deserve careful consideration:
First, opponents claim that there is not yet sufficient evidence
to justify a complete prohibition on new displays, and at the
very least the author should wait to see if the FWHA study shows
that there is a danger. The author, on the other hand, takes
the opposite view, contending that the state should refrain from
adding more displays until we are certain that there is no
substantial safety risk. The author's position is strongly
supported by the fact that existing law requires local
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governments to compensate owners if a regulation requires
removal of a lawfully erected display (Business & Professions
Code Sections 5230 and 5412 through 5414). If the state were to
await the FHWA study, and that study were to conclude that such
displays were unsafe, local governments would be forced to
compensate sign owners for any removals. Indeed, one might
argue that awaiting the results of the FHWA study would create
an incentive for advertisers to have displays approved as
quickly as possible, before the issuance of a possibly adverse
report.
Second, some of the opponents claim that this bill will
adversely affect public safety, since digital displays could be
used to provide improved Amber Alerts and traffic and safety
messages. However, this argument is largely without merit. The
bill does not prohibit Caltrans from using the most up-to-date
technology, including changeable digital displays, for
communicating Amber alerts or other traffic and safety
information. This bill merely states that official highway
changeable message signs may not be constructed or converted to
display messages other than traffic and safety messages.
Indeed, as noted above, Senator Diane Feinstein has persuasively
argued that prohibiting Amber Alert signs from containing
commercial advertisements will ensure that the Amber Alerts, or
any other public safety or traffic message, are not drowned out
by a barrage of unrelated commercial messages.
Third, opponents claim that prohibiting digital advertising
displays will have adverse economic consequences and potentially
diminish local revenue streams. First, it is important to
reiterate that this is only a temporary prohibition. In
addition, there is no evidence offered to support the claims of
dire economic consequences, especially in light of the fact that
companies will be left with ample alternative modes of
advertisements and all existing billboards will be left in
place. (The motion picture industry, for example, has
experienced periods of boom and bust that have nothing to do
with the presence or absence of quickly changeable digital
displays.) Finally, many state regulations express a
legislative intent to reasonably balance concerns of public
safety, private property rights, and orderly economic
development. (See e.g. Public Resources Codes Sections 30001.2,
30001.5, 30212, and 30214.) However, the author believes, and
numerous statements of legislative intent confirm, that
immediate public safety concerns generally trump short-term
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economic concerns. The Health & Safety Code, for example,
imposes numerous regulations protecting health and safety that
outweigh the immediate economic burdens on the regulated
industry. (See e.g. H&S Code Section 43000 et seq., relating to
guidelines air pollution and automobile emissions control; or
H&S Section 113215, granting temporary extension of time to
conform to a safety regulation only where the economic
consequences are "severe" and are a "direct" result of the
regulation.)
Suggested Author Amendment : In order to better clarify the
author's intent that the prohibition on official highway
changeable message signs (i.e. traffic and public safety alerts)
applies only to constructing new or converting existing signs
for the purpose of displaying commercial or other messages
unrelated to traffic or public safety, the Committee recommends
the following amendment to paragraph (2) on page 3 lines 4-8 of
the bill in print:
(2) No official highway changeable message sign shall be
constructed as, or enhanced, upgraded, improved, modified,
modernized, or altered into, a digital advertising display for
the purpose of displaying commercial messages in addition to
other than official traffic operations or public safety
messages.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Insurance Companies
City of Los Angeles
Scenic America
Opposition
California Chamber of Commerce
California New Care Dealers Association
California Sign Association
California State Outdoor Advertising Association
Clear Channel Outdoor
Motion Picture Association of America
Regency Outdoor Advertising
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
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