Nudging Government To Govern

For possibly the first time in its history, this month Scenic America filed a lawsuit of its own rather than just a supportive brief.  Having tried logic, evidence, encouragement and seemingly every other alternative, Scenic America has turned to the courts in an effort to get the Federal Highway Administration (FHWA) to, well, do its job.

The Highway Beautification Act (HBA) was signed into law in late 1965, during my last year of high school and just as the now-classic California Dreamin’ was released by The Mamas & Papas following a freak September snowstorm in eastern Idaho.

However, the HBA wasn’t fully deployed until 1972, as I was graduating from college.  It had been delayed by development of state-by-state agreements such as the one signed that year by North Carolina, where I now live.  By then outdoor billboard and other sign interests had already pushed through amendments that watered the HBA down, overriding the compromise agreements they made when it was created it.

The following year, as I took my first full time job in community-destination marketing to work myself through law school at night, I learned first hand about one of the amendments from Luke Williams, one of the inventors who had built the huge American Sign & Indicator Corporation based in Spokane, Washington.

In the late 1960s, Luke, a lifelong Republican, had persuaded the powerful Democratic Senator from Washington State, Henry M. “Scoop” Jackson, to insert an amendment to the HBA.  It was designed to exempt the ubiquitous, electronic time-temperature signs the company leased from the HBA’s purpose of reducing and restricting sign and billboard clutter and blight along the nation’s roadways.

The amendment carved out an exception along roadways stipulating that “public service information such as time, date, temperature, weather or similar information may be advertised on electronic variable message signs located in commercial and industrial areas.”

By 1978, as I headed to Alaska to head the DMO in Anchorage, the FHWA’s administration of the HBA had become so politicized that the agency formed the National Advisory Committee on Outdoor Advertising and Motorist Information to make an assessment along with recommendations to improve effectiveness.

It was chaired by Thomas W. Bradshaw, Jr. a former mayor of Raleigh, North Carolina.  At the time he was secretary of the North Carolina Department of Transportation during the first terms of Governor Jim Hunt, who would again serve as governor after I arrived in Durham, NC to jump-start a DMO here in 1989.

The Committee included a balance of transportation and planning experts, tourism representatives, billboard representatives, sign manufacturers –including the senior vice president under Williams at American Sign – environmental experts, garden clubs, local officials and academicians including University of George economist Dr. Charles Floyd, now a friend of mine and retired in North Carolina.

Over several years the Committee met and conducted a wide range of public hearings.  It also broke into sub-committees to evaluate a wide range of aspects before making a final report in 1981 to the head of the FHWA, almost exactly 16 years after the HBA was first enacted.

One interesting aspect of the report is that it attempts to benchmark the improvements generated by the HBA as of 1980 including a 71% improvement in aesthetic quality by removing 542,115 signs from roadsides – including 103,000 large, unsightly billboards –  and a 33% reduction in standard-size billboards while preventing another 200,000.

In 1965 when the HBA was enacted, there had been an average of one billboard every third of a mile along primary highways throughout the nation. By 1978 when much of the act had been gutted by the allies of billboard companies, the sign blight along roadsides had been reduced to a little more than one per mile.

But the improvements were not even. The General Accounting Office reported prior to the Committee’s deliberations that residents of many areas could detect little or no improvement in their states.

What they couldn’t thwart by diluting the HBA with subsequent amendments, the billboarders effectively thwarted by starving it of funding for implementation as well as by bullying agencies, bringing the FHWA to estimate in the 1981 report that it would take another 154 years to remove non-conforming signs, a clock that today has probably reached several hundred years.

In its 1981 report the Committee laments the loopholes in the law as well as poor enforcement of the HBA.  It notes in one resolution that staff and funding for the FHWA’s Junkyard and Outdoor Advertising Branch had been slashed to skeleton only a few months into the then-notoriously anti-regulation Reagan administration.

Today, ironically, many thoughtful Republicans including former elected officials believe that the reason so many members of that political party are rabidly anti-regulation is not because they are inherently heavy-handed and excessive.

Instead, they believe regulations only got that way as lawmakers responded to the general and enduring failure by the executive branch at every level of government to execute them in the first place, setting off cycles of over-tightening and more and more complexity.

At the heart of even the watered-down HBA are three relatively straight-forward restrictions that even today, nearly 50 years after its passage, both federal and state agencies are failing to properly execute.

The law stipulates that:

1) Roadside billboards are permitted only in commercial/industrial zones but using tactics some experts call “legalized corruption,” billoarders have persuaded lawmakers in many areas to establish what was already castigated in the 1981 Committee report as “phoney zoning,” and still clearly evident today in North Carolina.

2) The act stipulated that billboards existing before 1965 could continue if they met state and local customs prior to passage of the HBA. However, billboarders have successfully pressed agencies to permit thousands of new billboards after that date. Failure to enforce this aspect is the basis of the suit now filed in U.S. District Court.

3) It also stipulates that billboards must be regulated as to lighting, size and distance. This included the prohibition of digital billboards for anything other than time and temperature or public service.  The Scenic America lawsuit asserts that the lighting provision is obviously not being enforced.

However, in late 2007, just as the “Great Recession” hit during the final months of the Bush Administration, the Federal Highway Administration, without rationale or discussion, inexplicably reversed its position on digital billboards and issued a memorandum declaring that digital billboards were not intermittent.

Failing in the years since with expert testimony to persuade the FHA that digital billboards are by their very definition, intermittent lighting, and frustrated at years of non-enforcement of the Highway Beautification Act, Scenic America has turned to the courts to force the government to govern.

Scenic America, in the suit filed on its behalf by the Georgetown University Law Center’s Institute for Public Representation, is asking the courts to require the federal agency to resume active enforcement of the provisions and intent of the 1965 Highway Beautification Act, including the original intent of intermittent.

Not so coincidentally, the origins of Scenic America date back the 1980s and a response in part to the findings of Bradshaw’s 1981 Committee Report to the FHWA.

The Committee, lamenting that amendments pushed through Congress in 1978 were interfering with local community control of roadsides as well as lax state enforcement, encouraged in one of its motions the creation of state and local advisory committees across the nation to advise and assist administrators in implementation of the HBA.

However, foretelling that the FHWA would probably continue to be grid-locked or politicized into inaction, the Committee noted that it had been divided into two opposing camps and because its motions had narrowly passed, minority reports were included in the report.

Frustrated at continued FHWA inaction, within months of the Committee’s report, a nationwide coalition formed what would be renamed Scenic America later in that decade, along with affiliates in each state and in many communities, one of which I have been involved in resurrecting for North Carolina.

The objective of these scenic entities are to safeguard the scenic qualities and character of America’s roadways, countryside and communities and foster citizen engagement in scenic conservation.  It isn’t being anti-billboard but anti-blight and pro-scenic character.

Polls continue to overwhelmingly favor beautification of roadsides.  And voter sentiment runs strongly against the blight created by billboards and any tree-cutting to make them visible.

Yet this sentiment has continued to be thwarted both in legislative bodies and in agencies by powerful billboard interests, even as consumer and business use of billboards had dramatically shrunk to less than .20%.

Economists call the tactics used by billboard companies “rent-seeking,” including campaign contributions and heavy-handed lobbying.  Think of it as renting economic value by influencing government decisions rather than creating economic value.

Other experts refer to these actions as a form of “legalized corruption.”  According to free-market advocates, entities and allies so engaged are not pro-market but seek instead to tilt the playing field to their benefit, but never to level it. Lawmakers and agencies are pawns, voters the victims.

Hopefully Scenic America will prevail in the courts and government will begin to govern by finally and fully enforcing the Highway Beautification Act.

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