The strong Massachusetts billboard regulation legacy will come to a swift end if proposed new regulations by the Massachusetts Department of Transportation’s Office of Outdoor Advertising (the “OOA”, not to be confused with the OAAA, the Outdoor Advertising Association of America, the billboard industry lobby) are enacted.
The Legacy
Efforts to regulate billboards in Massachusetts first became formidable in 1918. Recognizing the strength of the billboard industry it sought to regulate, the Commonwealth adopted Article 50 to the Massachusetts Constitution for the purpose of regulating outdoor advertising. “Advertising on public ways, in public places, and on private property within public view may be regulated and restricted by law”.
Applicable laws were enacted soon thereafter in 1920, setting forth standards for sizing, setbacks and the consideration of the public interest. The mechanism by which the Commonwealth would regulate the billboards and signs would be the issuance of licenses for billboard operators and revocable permits for the billboards themselves. State regulations were eventually adopted. Cities and towns may further regulate and restrict billboards and signs, so long as the regulations are not inconsistent with the Massachusetts laws and regulations.
Massachusetts was the first state to recognize that aesthetics alone was a significant government interest that justified the exercise of the police power to regulate (and ban) billboards for the general welfare in the landmark 1935 case, General Outdoor Advertising Co. v. Department of Public Works.
In the General Outdoor Advertising decision, the Massachusetts Supreme Judicial Court also held that no vested rights are created with a billboard permit, as was the intention of Article 50 of the Massachusetts Constitution. The Court noted that permits are “subject to expiration at a fixed time and to the necessity for renewal. The original granting of the permit carried no implication of law that it would be renewed … Many licensees make investments in reliance upon the hope of renewal but without the right to renewal … the [licensee] cannot now assert a permanent right to maintain the sign contrary to the conditions on which [it] was permitted to be erected”. The Court further noted there were no right to compensation to billboard owners upon the revocation of a billboard permit. “[T]he intention of the framers of Article 50 is … shown by the fact that a motion to amend its terms by inserting a proviso to the effect that no person should ‘be deprived of the use of his property without just compensation’ was rejected”.
Since 1918 and during the last (almost) century, the Supreme Judicial Court has upheld regulations and billboard bans, and the legislature has adopted additional laws to further the constitutional mandate and uphold the federal standards of the Highway Beautification Act. Communities have enacted local billboard regulations and bans. The Massachusetts Constitution has been further amended to add Article 49 (Amended), giving “[t]he people … the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air, and other natural resources is hereby declared to be a public purpose.”
Now, however, this legacy is at risk as the OOA’s proposals relating to electronic billboards, new billboard exemptions and the increased discretionary authority of the Director of the OOA will serve to set aside Massachusetts and local billboard laws and regulations if adopted. With the implementation of these proposed regulations, the billboards laws and regulations in Massachusetts will go from among the strongest in the country to arguably the worst.
Entrenchment of Electronic Billboards
After conducting a statewide pilot program examining the safety of electronic billboards (with local compensatory payments being made by Clear Channel), the OOA is proposing its first set of state regulations of electronic billboards, set forth in new proposed Section 3.17. Although Section 3.17(3) states that a permit for an electronic sign “is determined to not be prohibited by any agreement between the Department and the Secretary of Transportation of the United States”, the new regulations clearly do contradict the agreement between the Commonwealth of Massachusetts and the Federal Highway Administration adopted pursuant to Massachusetts General Laws, ch. 93D, Section 7. Prohibited under the federal agreement are “signs which contain, include, or are illuminated by any flashing, intermittent, or moving light lights, except those giving public service information such as time, date, temperature, weather or similar information”, which means most electronic signs currently are prohibited. The Massachusetts legislature first needs to rescind or amend this agreement with the FHWA (from whom the Commonwealth receives federal highway funds to enforce billboard laws in accordance with the Highway Beautification Act) before these conflicting regulations can be implemented successfully. A better alternative would be to enforce the current ban.
With this first attempt to ‘regulate’ electronic billboards, the OOA comes up short. While seeking to restrict beams, rays and glare as well as the speed of sign-switching, the OOA has opted not to enact illumination or brightness standards or requirements, restrictions on nighttime displays near residential areas or efficiency standards or power requirements for the very unefficient electronic billboards.
Billboard companies will also be allowed pursuant to Section 3.17(4) to ‘modify’ regular conforming billboards to electronic billboards “if a new permit for the Electronic Sign is obtained by [sic] the Department.” But, concerning to cities and towns should be the first sentence in Section 3.17: “Permits for Electronic Signs require the prior approval of the municipality where the proposed sign will be located unless otherwise exempted from State law”. The proposed new exemptions are highlighted in the next section.
Continued Proliferation of Unregulated Billboards
Also included in the proposed regulations, in Section 3.02(2)(b)(6), is an exemption from regulation for billboards featuring non-commercial ‘free speech’ messages, which will open up the Commonwealth to an unfettered influx of unregulated billboards.
This exemption will codify some current practices in Massachusetts. Take the example of a local unlicensed billboard company, which erected two 4-story high billboards on the corners of Bowdoin and Cambridge Streets in the Beacon Hill neighborhood, not far from Boston City Hall. The company first put billboards up for “Forgiveness is the Way” and did not seek a license or billboard permits. Instead, it claimed it was exempt from billboard regulations because the billboards featured a non-commercial message which was protected by the First Amendment. This was a dubious claim, as the current Massachusetts laws and regulations and the Boston Sign Code are content-neutral and neither discriminate against non-commercial messages or differentiate regulation based on the content of the message. (Outside of Massachusetts, regulations which specifically banned non-commercial messages or exempted certain billboards from regulation based on content have been struck down on First Amendment grounds). The current state regulations have not been invalidated on First Amendment grounds, but nevertheless the OOA did not contest the First Amendment claim or opt to enforce the other applicable billboard regulations on sizing (billboards currently can’t be over 25 feet high) or spacing (billboards currently must be spaced at least 100 feet apart in urban or ‘thickly-settled’ areas). The billboards, only a few feet from a permitted Clear Channel Outdoor billboard, now feature Blue Moon Beer ads and will continue on unregulated.
As no permits for non-commercial messages would be required under the proposed new regulations, a billboard company could follow the Beacon Hill model to erect new billboards. Or, it could switch its billboards to feature non-commercial messages each year at permit renewal time or when a billboard becomes non-conforming in order to avoid applicable regulations or paying applicable fees. Regulation perhaps could be avoided by including on a billboard consumer information like safety statistics for an advertisement for cars, or the required informational health warnings, a help-line phone number or a notice for a cancer benefit walk on an advertisement for cigarettes. This proposed exemption does not state that billboards would be subject to other billboard laws or regulations, or local sign bylaws or bans. So everyone should expect new standard and electronic billboards to be erected in areas and locations where billboards are currently prohibited with no regard for applicable zoning requirements, sizing, spacing or maintenance requirements, or the safety and blight concerns that inherently come with billboard proliferation.
The proposed new regulations do not indicate whether an exemption must be obtained from the OOA before a billboard company erects a sign or billboard with a non-commercial message (exemption fees are mentioned in Section 3.02(3)(d), but no proposed fee is included in the fee table nor is a procedure included for exemptions).
Also not covered is how the Director of the OOA will determine if a message is ‘non-commercial’ (the Director has all discretion to issue billboard permits). Courts historically have avoided putting forth tests as there are often many different factors to consider in each case and such tests put government officials in a precarious position for censorship claims. Erring on the side of non-commercial messages and non-enforcement of other regulations probably will be necessary to avoid litigation and censorship charges from the billboard industry against the barely-staffed and under-funded OOA.
Another proposal in the new regulations, in Section 3.02(3)(c), is the ability to include off-premise advertising on up to 25% of the space or the time (on an electronic billboard) of an on-premises sign or billboard with the approval of the Director of the OOA. Not clear is whether the Director will consider this exemption on a case-by-case basis or that he would have the authority to permit this practice as an across-the-board exemption. On-premise signs do not require billboard permits so this will allow billboard companies to put billboards in areas and locations in which they previously did not have access. This will also create a new market for companies and buildings to sell advertising on their on-premise signs or erect new and bigger signs or electronic billboards to take advantage of this provision.
A wholesale set-aside of billboard regulations as is proposed puts Massachusetts at risk of losing federal highway funding. When legislation was proposed in Kentucky to exempt non-commercial messages from regulation in 2010, the Federal Highway Administration warned Kentucky officials that federal highway funds were at risk of being lost as Kentucky must keep “effective control of outdoor advertisements”. When the Texas Department of Transportation proposed an exemption from regulation for certain electronic signs in order to implement an emergency public safety network in 2011, the FHWA warned Texas that it was at risk of losing federal highway funding as the proposed regulations conflicted with federal zoning requirements and size, spacing and lighting restrictions. When Illinois transportation officials proposed legislation that would permit billboards in off-limit areas on Illinois highways, the FHWA threatened to pull $140 million in highway funding as “[a] review of the proposed legislation raises issues that call into question Illinois’ willingness and ability to maintain effective outdoor advertising control”.
Another worry in the proposals is the granting of wide new discretionary powers in Section 3.05 and Section 3.02(3) to the OOA Director to disregard entirely Massachusetts and local billboard laws, regulations and procedural requirements. Per Section 3.02(3)(b), the Director may “with written approval of the [MA DOT] Secretary and in consultation with the FHWA” – but not in consultation with local officials or subject to local bylaws – “issue a permit for a sign which does not strictly comply with the rules and regulations” of the OOA. “In determining whether to issue an exemption, the following factors may be considered: (1) Special circumstances pertaining to the sign in question. (2) Undue hardship or inequity resulting from the issuance or denial of a permit. (3) Detriment to the public resulting from the issuance or denial of a permit. (4) The general purpose and intent of the law regulating outdoor advertising.” Remember, we’re talking about regular outdoor advertising here, as non-commercial billboards will already have been exempted from permit requirements. So I’m very interested in what will end up constituting undue hardship or inequity, or the detriment that would be caused to the public by the OOA’s refusal to grant a permit for a commercial billboard.
The proposed new regulations also increase the size of ads on ‘street furniture’ from a maximum square footage of 100 feet “total” to 275 feet “in advertising space”. The Director of course at his discretion can “exempt a sign contained within street furniture from any spacing or zoning requirements contained herein”, per Section 3.07(6)(b).
Lastly, the regulations in Section 3.07(7) have long stated that billboard permits shall not be granted for a sign: (a) painted on or attached to a tree, rock, or other natural feature, (b) painted on a bridge or wall, (c) attached to a bridge, or (d) attached to a roof of a building used wholly or predominantly for residential purposes. Now this regulation is proposed to start with the caveat, “Unless otherwise authorized by the Department”.
At this point, we really need to wonder if the provisions of Articles 49 and 50 of the Massachusetts Constitution are being violated.
Continued Protection of Non-Conforming Billboards
Notwithstanding various statement in the current and proposed regulations about there being no intention to create vested rights in billboard licenses and permits, and despite the fact that billboard licenses and permits have always been revocable and permits were specifically limited to one year terms, the proposed new regulations in effect continue the OOA’s march toward giving vested rights to billboard owners in Massachusetts.
An ongoing practice at the OOA has been to deem older, non-conforming billboards that do not comply with current regulations ‘protected’ as ‘non-conforming’ and/or ‘grandfathered’. Many billboards in place since at least the 1940s enjoy this protected status which violates the Massachusetts laws and regulations. The new regulations include an updated definition for “Non-Conforming and/or Grandfathered Sign” in Section 3.01. The definition describes the protection from regulations provided by the OOA to such signs and references ‘eligibility’ for such protection. But nowhere in the laws and regulations is there a right to protected status for a sign or billboard that does not strictly comply with applicable laws and regulations and is and always has been subject to a one-year revocable billboard permit.
Another protection for non-conforming signs comes with the new regulations for no-fee temporary permits in proposed Section 3.07(16). In the past, the size of a temporary sign was limited to 32 square feet and the total term of the temporary permit was limited to 90 days and was specifically non-renewable. With the new regulations there would be no size restrictions for temporary signs (although they must be ‘of light weight material and easily removable’), the temporary permit can have a term of up to one year (the term of a regular permit) and that term is now renewable. Further, temporary permits can be issued specifically for signs which may not strictly comply with the rules and regulations of the OOA on terms and conditions the Director deems reasonable, this time without having to get the approval of the Secretary of the DOT or consulting with the FHWA, but again disregarding local requirements and consultations with local officials. I’m not quite sure for what temporary billboard permits have been granted for in the past, but this new creative workaround constitutes another method to keep non-conforming billboards in place in violation of applicable laws and regulations.
Add in the proposed new provisions in Section 3.19 that provide an appeal and administrative process for the denial or revocation of a permit or license and the removal of certain notice requirements to municipalities, you can see why billboard companies think they have vested rights and entitlements in Massachusetts.
Cost to Operate Billboards in Massachusetts Continues to be Very Cheap
The OOA brought in $425,530 in revenue from license and permit fees in 2011. Clear Channel Outdoor, the largest billboard operator in Massachusetts (holder of 1895 of the 3414 billboard permits (55.5%) issued by the OOA for the year) and the exclusive billboard operator on MBTA properties, paid $1,500 for its license and $197,840 for its annual permits.
The proposed regulations include higher permit fees, but license fees remain at $1,000 or $1,500 per year, depending on the number of billboard permits the licensee holds. New permit fees are $250 for a regular billboard and $1,000 for an electronic billboard. Annual permit renewal fees range from $100 – $250, depending on size and regardless of type, regular or electronic. “Tri-vision” billboard permit renewal fees are strangely higher than those for electronic billboards, which are specifically exempted from the tri-vision fee, at $500. Transfer fees for the revocable permits are only $100. If funds from licenses and permits are meant to fund enforcement efforts and inspections, the fees could stand to be much higher.
The cost of doing business in Massachusetts for billboard companies continues to be very cheap. Under the new proposed fee structure and assuming it pays $250 for each billboard permit it holds, Clear Channel Outdoor would still pay the Commonwealth less than $500,000 in fees annually (plus any new fees for new electronic billboards and less any fees not paid by taking advantage of the new regulatory exemptions). The fees have no correlation to revenue as the monthly charge for renting a regular billboard can be thousands of dollars and the charge for renting an electronic billboard can be in the tens of thousands of dollars (that amount obviously multiplies as dozens of different messages can be placed on a dynamic electronic billboard at any one time).
By keeping the cost cheap, the OOA is subsidizing an antiquated mode of advertising in this modern digital age where advertisers have dozens of other avenues of advertising available to them. Given the limited amount of information that a driver properly looking at the road in front of him or her can be expected to absorb, billboard advertising generally is not used for informational messages, and instead is mostly used by national advertisers promoting brand awareness.
A recent study confirms the negative effect of billboards on communities and real estate values. Based on Philadelphia statistics, residential properties within 500 feet of a billboard were found to suffer an average decrease in sales price of $30,926. For each additional billboard in a census tract, the property value decreased by another $947. Local businesses also would be hurt by nearby billboards. With this harm to property value, the detrimental effect to the environment and the aesthetics of our cities, towns and historic and tourist areas, the well-documented blight in cities and along highways and ongoing safety concerns, it seems only the Commonwealth and its citizens are incurring and suffering from the costs of billboard advertising.
Highlighted here are just some of the gold nuggets in the proposed new regulations. I urge you to take a read yourself and try not to laugh (or cry) too hard. Really, the OOA should be focusing on its constitutional mandate and enforcing existing billboard laws and regulations instead of making ludicrous proposals like these on behalf of the billboard industry.
The public hearing on the proposed regulations will occur on Tuesday, June 5, from 9 a.m. to 12 p.m., at the State Transportation Building at 10 Park Plaza in Boston, in Conference Rooms 5 and 6. If you are sufficiently riled up, please attend the meeting or voice your opposition before the meeting to the OOA at 617-973-8470 or OOAInformation@dot.state.ma.us. Let billboard advertisers know they are complicit in the deregulation of billboards and the ongoing billboard blight in Massachusetts. Most importantly, work in your community to enact and enforce appropriate local billboard regulations or bans, as moot as they may become. In the future our only available course of action to fight regulatory shenanigans like those proposed by the OOA may be a state-wide billboard ban like Vermont’s or Hawaii’s. Such a billboard ban may be the only viable way to promote billboard regulations consistent with the protections we are lucky to have under the Massachusetts Constitution.
Mark L. Bail says
on the highway in unscenic areas.
But how about a synopsis? I can’t read all of this. I have some paint I need to watch dry.
kbusch says
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JHM says
and it inspires Paddy Pedestrian to wish we might see duelin’ billboards from Provincetown to the Taconics erected by the Funders of Fratboy on the one hand or by the Intergalactic Blue Blazers of St. Elizabeth.
¡Billboards so big they are, if technically possible, visible from Mars!
Democracy, my fellow citizens, must not only be done, it must be SEEN to be done.
Happy days.
centralmassdad says
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roarkarchitect says
there are lots of them around Pittsburgh – they are a little retro.
sabutai says
That is a lot, LOT more than I ever wanted to know about billboards.
I second Mark’s request for a summary.
kbusch says
1. The Office of Outdoor advertizing in our DOT is attempting to loosen billboard regulations.
2. Billboard regulations are part of the state’s agreement with the FHWA and so monkeying with them risks federal highway funding.
3. Various anti-distraction restrictions on electronic billboards are being loosened.
4. Billboard companies try to skirt billboard laws by posting non-commercial messages and appealing to the First Amendment. This has gotten billboards packed too densely in urban locations and too large.
5. Most important, on June 5 there will be a hearing on new regulations.
striker57 says
I actually like billboards as well. Not placed in neighborhoods but correctly located on major roads and highways they generate revenue for the owners of the location, create jobs for those who erect, install messages and maintain the structures.
There are responsible outdoor advertising companies. CBS Outdoor and Total Outdoor come to mind from personal experience working with both companies.
Clear Channel is a whole other animal. IMO, they have little concern for the owners of their permit locations, very anti-worker policies and because of their volume of Massachusetts permits they have serious influence over the state OA. Additionally, Clear Channel’s very conserative political views are well known.
Billboards have a place within the economic structure of the state. A percentage of the revenue generated from outdoor advertising on MBTA property goes to funding MBTA operations/debt, etc. To simply declare “I hate billboards” and ignore the economic of the situation is shortsighted.
Increase the permit fees – go for it. Regulate electronic billboards to ensure we avoid distracted driving -go for it.Require outdoor advertising companies to maintain structures on a regular basis at cost to the billboard company -go for it. Increase the revenue for municipalites, the T and the state from outdoor advertising -go for it.
stomv says
and I’m not ignoring the economic [sic] of the situation.
I think that their costs to society in terms of reducing the aesthetic of the scenery and distracting motorists is too high for the value they lend society. The first is impossible to measure; the latter only extremely difficult.
That written, if we would go through with all of your suggestions in the last paragraph, I’d be thrilled. Personally, I’d like a billboard tax which is a function of the distance from the top of the billboard to the ground, but increased permit fees are good too. Electronic billboards shouldn’t change anywhere nearly as frequently, and should have no animation. I find them extremely distracting when they change. I’m not sure if I like the idea of more revenue for the muni though — I’d hate for cities and towns to have to make this fight about how many billboards based on teachers. Instead, tax at the state level and distribute the money through the cherry sheet or whatever, so that cities and towns don’t try to attract billboards like states try to attract jobs by slashing taxes and providing incentives for more since, unlike jobs, billboards don’t really benefit the public at large.
John Tehan says
We should do what they do in Maine – ban them entirely!
nobodylikesbillboards says
These regulations are so pro-billboard company It’s like they are taunting us to move toward getting a ban in place.
nobodylikesbillboards says
I’ll provide a thumbnail in a bit. Thanks for the input.
mike_cote says
Another instance where the laws already exist but are never enforeced. Probably gutted by ReTHUGlicans.
nobodylikesbillboards says
The FHWA has threatened other states that proposed equally pro-billboard company legislation/regs that their highway funding will be pulled for failing to uphold the standards in the Highway Beautification Act. Hopefully the FHWA will do the same to MA (soon) and stop these shenanigan regs from being put into place …
nobodylikesbillboards says
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