• by Steve McClellan  @mp_mcclellan, January 23, 2013

Nonprofit public interest group Scenic America has sued the U.S. Department of Transportation (DOT) and a unit under its wing, the Federal Highway Administration (FHWA), for exempting digital billboards from the ban on many outdoor advertising signs near federal interstate highways and other highways built with federal aid.

According to the suit, the FHWA issued a memorandum in 2007 exempting the electronic signs without formal input from the public, in violation of both the Highway Beautification Act and the Administrative Procedure Act. The suit was filed Wednesday in U.S. District Court in Washington, D.C.

“Shielded by the 2007 de facto rule change, advertising companies have constructed and operated new digital billboards featuring commercial advertising displayed intermittently thousands of times a day that shine day and night into citizens’ backyards and bedrooms, put the public at risk of car crashes caused by driver distraction and mar the beauty of America’s countryside and communities,” the suit alleges.

The 2007 memorandum permitting digital billboards is illegal because the FHWA issued it “without engaging in a notice and comment rulemaking” and without developing new Federal-State agreements through which the Highway Beautification Act is administered, the suit claims.

The suit also asserts that in the year following the memorandum, 800 digital billboards were put up along U.S. roadways. By 2012, the tally had reached 3,600, “an increase of almost 400% in just five years.”

Scenic America indicated that it had tried to persuade the FHWA on numerous occasions to rescind its 2007 edict. "For over five years, we have pleaded with FHWA to do the right thing and revoke the memorandum," stated Mary Tracy, president of Scenic America. "In every instance, they have turned a blind eye to the standards established by the Highway Beautification Act...Because the agency has ignored the law, today we are asking the Court to tell FHWA to follow the law."

Asked to respond, an FHWA rep replied: “We don’t comment on litigation.” By press time, the DOT had not responded to a query seeking comment.

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