BEFORE THE TRANSPORTATION COMMISSION
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 18.6.202
pertaining to electronic billboards
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On March 27, 2008 the Transportation Commission published MAR Notice No. 18-118 pertaining to the public hearings on the proposed amendment of the above-stated rules at page 523 of the 2008 Montana Administrative Register, Issue Number 6.
2. On April 21, 22, and 28, 2008, the commission held public hearings to consider the proposed amendment of the above-stated rules. Comments were received at the hearing, and written comments were received before the comment deadline.
3. The commission has amended the above-stated rules as proposed.
4. The commission considered the comments at its regularly scheduled meeting on June 26, 2008. During the meeting the following statement was adopted by the commission:
The issue at hand is the amendment of ARM 18.6.202 and 18.6.232.
At the time of this hearing there is no law against LED or EBBs in the Montana Statutes because the technology was so new it was not addressed in the current laws. However, an amendment to the rules was proposed by the commission to include EBBs.
At issue is whether these signs "promote safety and aesthetics" on the highways in accordance with 75-15-102, MCA. The commission recognizes that "beauty is in the eye of the beholder" and that we cannot legislate on the basis of whether these signs will ruin the night sky or the beauty of the Montana countryside. We also recognize that no definitive studies have been done on the safety of these signs on either side of the argument. A complete study is scheduled to be done by the FHWA in 2009, and that until that study is completed, NO SIGNIFICANT STUDY HAS BEEN DONE. Current studies show that while the driver may only be distracted for two seconds by a variable imaging sign or "EBB" it takes a minimum of five seconds to comprehend the message according to the billboard industry itself (Scenic America). This seems to negate the safety standards of the Federal Highway Administration. Since there have been no truly conducted studies on the safety issues of these signs we should amend these rules until further studies can be completed to ensure the safety of our highways.
The overall message of the hearings was that some compromise should be reached between complete denial of these signs and complete accordance for permitting them. People felt that their voices had not been heard, that hearings were not held throughout the state, and that the issue should be decided by referendum and/or legislative procedure. The commission does not disagree with the latter. The commission has felt all along that in the absence of the proof of harm, and in the absence of a law prohibiting these signs, the state and the advertising companies would be locked in a prolonged and expensive battle.
There are some issues worth reviewing once it is proved that safety is not an issue:
1. Duration of message or "dwell time".
2. Transition time not to segue, but a complete black out time.
5. Location. Particularly not in animal crossings, narrow shoulders, difficult weather areas, entrances to public parks, forests, or monuments.
6. Reasonable and safe standards to regulate these signs are in place for the protection of the motoring public.
7. The efficient and effective enforcement is in place to keep these signs in compliance with the above legal considerations.
8. Signs be designated to zoned and unzoned commercial or industrial areas.
9. Messages must be static without movement, sound, animation, flashing, scrolling, or full motion video.
The preceding elements need study and policy.
Small businesses were concerned about not being allowed ANY off premise advertising. This is another issue and is already accorded by law. The discussion here is for variable messaging or EBB signs. It is not the commission's recommendation that EBB signs be placed in noncommercial settings on the highway.
The commission does not know how often Montana issues an Amber Alert.
The Department of Transportation already provides information on safety conditions on the road, weather conditions, places to rest, eat, lodge, refuel, and how far the next stop is for all of the above.
We should not proceed with this technology because "it has a clean look," or "it's cool," or "it's a good looking system," or "it communicates that we are a state that appreciates technology," or "it's the wave of the future." These are ridiculous.
These are the commission's reasons for overruling considerations urged against the adoption of these amendments. It is the commission's decision to amend ARM 18.6.202 and 18.6.232 until at least complete studies are done on safety as regards electronic billboards in 2009 by the Federal Highways Administration and policy can be set on the nine issues stated above. The commission is sure the use of electronic billboards will continue as on-site advertising in the future, but does not think they have a place on Montana's highways.
5. The commission has thoroughly considered the comments and testimony received. A summary of the comments received and the commission's responses are as follows:
COMMENT NO. 1: Twenty-six comments were received expressing general support for prohibition of electronic billboards (EBBs) on state roads.
RESPONSE: The commission appreciates the comments. It should be noted that the commission's authority to control outdoor advertising only extends to the interstate highways and primary highways. The proposed amendments do not apply to all "state roads" nor do the proposed amendments apply on the Indian reservations. The department should make an effort to work with the tribes on outdoor advertising regulation on the reservations.
COMMENT NO. 2: Seventy-five comments were received stating EBBs would be a distraction for drivers and may cause accidents, therefore EBBs are a safety issue. Studies have shown that crashes are caused by distractions to drivers, and EBBs are designed to take a driver's attention from the road.
RESPONSE: The commission recognizes that there are numerous studies that have been directed at the issue of safety related to the possible driver distractions caused by EBBs. However, the commission also recognizes that there is no consensus in the studies as to whether there is a cause and effect relationship between EBBs and crashes. Certainly, there is nothing that approaches a scientific certainty on this issue.
COMMENT NO. 3: Forty-one comments were received stating EBBs are a blight on the environment, mar the landscape, and would not be aesthetically pleasing. Montana's scenery needs to be protected.
RESPONSE: The commission recognizes that there are differences of opinion on the environmental impacts of EBBs and some find them offensive. As can be seen from subsequent comments, certain individuals expressed the opinion that the EBBs have a pleasing or "clean look."
COMMENT NO. 4: Twenty-three comments were received stating EBBs will cause visual and light pollution and blemish the night skies.
RESPONSE: See Response to Comment No. 3.
COMMENT NO. 5: Five comments were received stating EBBs will devalue surrounding property.
RESPONSE: The commission does not have any information that would either support or refute this assertion.
COMMENT NO. 6: Eleven comments were received stating EBBs are ugly, garish, and intrusive.
RESPONSE: See Response to Comment No. 3.
COMMENT NO. 7: Three comments were received stating some small businesses who advertise on EBBs may experience revenue growth, but it is at the expense of other small businesses that are not advertising on an EBB. All affected businesses will end up engaged in an advertising war, which will result in the same number of customers for each, but at a higher private advertising cost. Small businesses claiming EBBs are necessary to prevent them going out of business will have difficulty proving this cause and effect relationship.
RESPONSE: The commission recognizes that advertising is a legitimate business concern, but the commission has not been provided any hard data which support or refute the assertion. The commission notes all advertisers are free to put their advertising dollar wherever they want.
COMMENT NO. 8: Ten comments were received stating tourism will suffer if EBBs are allowed because Montana's scenery will be seriously affected in a negative way by EBBs.
RESPONSE: See Response to Comment No. 3.
COMMENT NO. 9: Five comments were received stating any rule authorizing EBBs throughout the state usurps local control, as even if town and county ordinances prohibit EBBs, they could still be erected on government and school property.
RESPONSE: The commission agrees that local control must be an integral part of any decision making process and believes the proper forum for establishing or allowing EBBs is the Legislature.
COMMENT NO. 10: One comment was received stating modern technology has provided more effective ways to provide product information than EBBs without being so intrusive to the general public and the environment.
RESPONSE: The commission is not in a position to comment on whether there are other "more effective ways" to provide information than EBBs and takes no position in that regard. Also, see Response to Comment No. 3.
COMMENT NO. 11: Thirteen comments were received stating current federal law (Highway Beautification Act) bans flashing, moving, or intermittent lights, and EBBs could possibly allow an electronic application which flashed, moved, or change the message intermittently.
RESPONSE: The commission recognizes that a guidance letter from FHWA dated September 25, 2007, specifically states that digital or LED billboards, in the federal view, do not violate the laws referred to in the comment.
COMMENT NO. 12: Three comments were received stating the Federal Highway Administration (FHWA) Memo allowing EBBs was issued without public input in violation of their own rulemaking requirements.
RESPONSE: The commission has no way of knowing whether or not the comment is accurate. It really makes no difference, given that the amendments prohibit EBBs.
COMMENT NO. 13: Two comments were received stating FHWA is conducting its own research into safety issues associated with EBBs. Montana should wait until the study is complete in 2009, before considering allowing EBBs.
RESPONSE: See Response to Comment No. 2. In addition, the commission recognizes that currently, FHWA's interpretation of the law does not prohibit LED or digital billboards.
COMMENT NO. 14: Four comments were received stating two studies showing EBBs are not more likely to cause accidents are flawed.
RESPONSE: See Response to Comment No. 2.
COMMENT NO. 15: Three comments were received stating other states such as Vermont do not allow any type of billboards, yet their local businesses thrive because people like to visit these scenic places. Montana should not allow EBBs, which would send the wrong message about our natural beauty.
RESPONSE: The commission acknowledges that Vermont, by law, does not allow billboards of any type. Whether or not there is any adverse economic impact in Vermont, however, is not supported or refuted by any evidence before the commission.
COMMENT NO. 16: One comment was received stating a ban on EBBs would attract more business to Montana, especially from those who yearn for nature and visual quietness.
RESPONSE: There is no evidence available to the commission to support or refute this comment.
COMMENT NO. 17: Twenty-one comments were received stating Montana should not waste energy resources on advertising on the roadside. Banning EBBs would set a "green" example for other states. EBBs are huge energy consumers, over 15 times that of a regular static billboard with lighting.
RESPONSE: The commission acknowledges that there may be energy consumption associated with the use of EBBs, but has no evidence to support or refute the assertion. Also, see Response to Comment No. 3.
COMMENT NO. 18: Five comments were received stating EBBs will clash with other historic or established architectural elements—even at a great distance.
RESPONSE: The commission agrees with the comment and sees the validity in the comment.
COMMENT NO. 19: Nine comments were received stating if highways need to be widened or an EBB taken down for normal road improvements, the costs to communities will be huge because of required compensation to the sign owners.
RESPONSE: The commission agrees that sign owners are generally entitled to compensation for taking related to highway expansion, and notes that the interstate and primary highways are under the control of the commission and not local government. The commission and department are always faced with the cost of acquiring improvements. There is no evidence that EBBs would be cumulatively more expensive.
COMMENT NO. 20: One comment was received stating the proposed prohibition on EBBs will aid local communities in keeping the highway entrances to the city clear of bright, obtrusive billboard signs.
RESPONSE: See Response to Comment No. 3.
COMMENT NO. 21: One comment was received stating entities and special interest groups have argued the EBBs should be allowed as freedom of speech, but their freedom should not be imposed on the rest of the public in such a dramatic and imposing way.
RESPONSE: Issues of freedom of speech are not at stake in this proposal. The limitation in these amendments does not prohibit existing advertising methods but restricts one alternative method not yet in place.
COMMENT NO. 22: Two comments were received stating it would be a major change in Montana to allow EBBs, and that subject should perhaps not fall under an administrative rule change, but should perhaps be considered by the Legislature because there is such broad interest in this across the state.
RESPONSE: The commission agrees. The overall comments received by the commission, both for and against the proposed amendments, recognize that the issue of EBBs on state highways under commission jurisdiction has divided public opinion. As such, the commission believes the final arbiter of this modern technological change ought to be the Legislature.
COMMENT NO. 23: Three comments were received stating EBBs are not a mass medium; there are much better ways to put out Amber Alerts that are already being taken advantage of such as radio and TV.
RESPONSE: The commission acknowledges that there are several existing means of posting alerts related to missing children and does not believe that the ability of using EBBs is, in itself, sufficient justification to alter the existing advertising practices.
COMMENT NO. 24: There were 115 comments received, which related to the issue of the alleged impacts upon business or the economy, if the proposed action were taken. Essentially, the comments were to the effect that businesses (especially small businesses) need advertising in order to stay competitive, and that the proposed amendment would eliminate a possible medium for such advertising. Because of this, according to the comments, businesses could be put at an economic disadvantage.
RESPONSE: The commission recognizes that advertising is an important business practice. However, the commission also notes that there are existing media that provide advertising options other than allowing EBBs. Also, see Response to Comment No. 22.
COMMENT NO. 25: There were 32 comments received to the effect that roadside signs are an aid to travelers, especially those travelers seeking accommodations, such as lodging, restaurants, and service stations. The comments stated that EBBs would increase the number of messages that could be displayed to the public, and thereby help the public find the type of services they were seeking.
RESPONSE: The commission acknowledges the benefits to travelers of roadside signage. The existing TODS and LOGO sign programs, as well as other existing opportunities including OAC, provide this service now and have provided service for nearly 20 years. The commission also notes these advertising media were legislatively enacted, and believes that if EBB advertising is to be introduced, it should be legislatively enacted as well.
COMMENT NO. 26: There were ten comments received which pointed out that the allowed number of billboards has decreased in recent years, largely due to local controls. As a result, the possibility of using EBBs was attractive to the sign industry, because they could put more messages on fewer sign locations, thereby allowing fewer signs along the roads. Also, as a subset of this comment, a few comments stated that, because EBBs did not involve the necessity of physically changing the paper or vinyl every time the message was changed, there was less waste material when EBBs were used.
RESPONSE: The commission recognizes that the technology of EBBs may result in some savings, but believes the issue has statewide implications requiring a legislative opportunity for industry, commerce, and local government to present their views in a forum which can enact statutory decisions.
COMMENT NO. 27: There were 87 comments which stressed the need to take advantage of the new technology afforded by the EBBs. Some of these comments also reiterated, as did the comments discussed in the previous paragraph, that the new technology would discourage the generation of waste material.
RESPONSE: See Response to Comment No. 26.
COMMENT NO. 28: There were 26 comments received which pointed out that EBBs were an efficient way to provide public service announcements such as Amber Alerts.
RESPONSE: See Response to Comment No. 23. The commission acknowledges that there may be opportunities for public service announcements, but the commission concludes that there are numerous existing media for that service now.
COMMENT NO. 29: There were 25 comments received wherein it was stated that EBBs did not create a distraction or safety hazard.
RESPONSE: See Response to Comment No. 2.
COMMENT NO. 30: There were twenty comments received wherein it was stated that any proposal regarding EBBs should seek to regulate the EBBs rather than simply banning them.
RESPONSE: The commission believes that the change in OAC to allow EBBs is a significant alteration of the current practice and has significant impacts on industry, commerce, local government, and the environment, and should be addressed by the Legislature in the same manner as the TODS and LOGO sign programs were.
COMMENT NO. 31: There were four comments received to the effect that the notice of hearings did not comply with the Montana Administrative Procedure Act or that the proposal should be enacted through legislation rather than through rulemaking.
RESPONSE: The commission disagrees that MAPA was violated in any manner. The commission agrees that the Legislature should consider the issue.
COMMENT NO. 32: There were thirty-two comments received which expressed general opposition to the proposal without stating a specific reason.
RESPONSE: The commission recognizes that a number of individuals and entities oppose these amendments. Again, it is deemed the best course of action to allow the Legislature to enact controlling law.
COMMENT NO. 33: There were nineteen comments received which asserted that the EBBs do not display intermittent, moving, or scrolling messages, but are static, and simply change a message every eight seconds or so. Many of these comments asserted that the EBBs have a "clean look."
RESPONSE: The commission acknowledges that FHWA does not consider EBBs as violating the prohibition on intermittent, moving, or scrolling as set forth in federal regulations, but believes the technological differences of EBBs establish an entirely new medium that should be addressed by legislation in the same manner as the TODS and LOGO sign programs. It is acknowledged that different people have different opinions as to what is aesthetically pleasing.
/s/ Lyle Manley /s/ Nancy Espy
Lyle Manley Nancy Espy
Rule Reviewer Chair
Certified to the Secretary of State July 7, 2008.