As promised, here’s a thumbnail of my epic post on the proposed new billboard regulations and how Massachusetts will soon go from having among the strongest billboard regulations in the country to among the worst. Enjoy!
1. We’re Losing the Current Electronic Billboard Ban. After conducting a pilot program on the safety of electronic billboards with Clear Channel, the Office of Outdoor Advertising is proposing its first set of (seriously lacking) regulations for electronic billboards. However, per the federal agreement between the Commonwealth of Massachusetts and the Federal Highway Administration adopted pursuant to Mass. Gen. Laws Ch. 93D, Section 7, electronic billboards are currently prohibited in Massachusetts “except those giving public service information such as time, date, temperature, weather or similar information”. Before the OOA can adopt these new regulations they have to get the legislature to rescind the federal agreement that sets forth the electronic billboard ban. Given that federal highway funds are tied to the agreement, a rescission is unlikely, and the OOA should enforce the electronic billboard ban.
2. ‘Non-Commercial’ Exemption Creates Loopholes Which Will Lead to Proliferation of Unregulated Billboards and a Set Aside of Current Billboard Regulations. The OOA has proposed an exemption from regulation for billboards (including electronic billboards) featuring a non-commercial ‘free speech’ message. The current Massachusetts laws and regulations are content-neutral and have not been challenged in the courts so such an exemption is not necessary on legal grounds. This exemption would permit billboards to be erected without permits, without payment of fees and without regard to other applicable billboard restrictions (like spacing and sizing requirements, maintenance requirements, zoning requirements, local billboard bans, bans in public parks and across from schools, etc, etc). Not indicated is how the OOA, which I don’t believe is currently staffed with constitutional scholars, will determine if a message is non-commercial, or how they’ll avoid censorship claims by putting themselves in the position unnecessarily of being the arbiter of who deserves First Amendment protection. When Kentucky, Illinois and Texas proposed billboard legislation or regulations with similar giant loopholes, the FHWA threatened to pull millions in highway funding allocated for enforcing the Highway Beautification Act because the local billboard regulations were no longer meeting their obligations of enforcement or effectively controlling billboard proliferation. The loopholes created by this exemption in effect create a set-aside of billboard regulations altogether and put Massachusetts at risk of losing millions in federal highway funding.
3. The Director of Office of Outdoor Advertising has New Discretion to Grant Permits and Protect Billboards which Don’t Conform to or Comply with Billboard Regulations (or Local Laws). Bllboards have always been subject to revocable, one-year permits, but new discretionary powers of the Director of the OOA permit him to ignore applicable regulations and local requirements, issue billboard permits and protect existing non-conforming billboards. Again, the effect is a complete set-aside of billboard regulations and is a move toward vested rights for billboard operators.
4. Cost to Operate Billboards in Massachusetts Continues to be Unreasonably Cheap. The OOA is charging nominal fees, in effect subsidizing and continuing an antiquated mode of advertising which hurts local businesses. We are bearing all the real costs, with blight, safety concerns and recent studies confirming the effect billboards have on nearby property value. Proposing regulations like these on behalf of the billboard industry could be stomached a little more if there were any real revenue coming in, if so many loopholes weren’t created, or if the billboards could be taxed appropriately.
5. Public Hearing. 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 wish to comment on these regulations, please attend the meeting or voice your opposition before the meeting to the OOA at 617-973-8470 orOOAInformation@dot.state.ma.us.