Preliminary legal victory in fight against digital billboards

Last Wednesday, the Institute for Public Representation won a legal victory on behalf of its client Scenic America. In a lawsuit that IPR filed in the Federal District Court for the District of Columbia, Scenic America has alleged that the Federal Highway Administration (FHWA) promulgated a rule permitting digital billboards along federal highways, in violation of the Administrative Procedure Act and the Highway Beautification Act. The court’s ruling on Wednesday rejected FHWA’s and an industry intervenor’s motions to dismiss Scenic America’s claims.

Those claims challenge a September 2007 FHWA memorandum that authorizes states to issue permits for digital billboards along federal highways. The memorandum, called the “Guidance on Off-Premise Changeable Message Signs,” specifically excludes digital billboards from existing regulatory prohibitions on signs with “flashing, intermittent, or moving lights.” Historically, FHWA had included digital billboards in this prohibition, and the Guidance offered no reason for the agency’s change in position. Scenic America argued in its complaint that the Guidance qualifies as a de facto rule and violates the substantive restrictions set forth in the Highway Beautification Act.

In their motions to dismiss, FHWA and the Outdoor Advertising Association of America argued that the Guidance was not a final agency action subject to judicial review and that Scenic America lacked standing to sue. The court disagreed.  It found that FHWA “intended [the Guidance] to have a coordinating effect on Division Office decisionmaking,” and was therefore “the end of the road” for the FHWA’s decisionmaking process. Similarly, the court rejected the argument that Scenic America lacked standing, reasoning that “the Guidance harms Plaintiff because its effect is to force the organization to combat an increased number of digital billboards with a concomitant drain on the resources dedicated to other conservation programs.”

The case will now proceed to briefing on the merits.

This post was drafted with the assistance of Georgetown Law student Clara Kollm.

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