As the Legislature prepares to write a new billboard law, scenic highway advocates fear the outdoor advertising industry will push to weaken regulations.
by jesse fox mayshark • January 17, 2020
a grandfathered non-conforming billboard along interstate 40 on West magnolia avenue.
Since last September, for the first time in 47 years, Tennessee has had no statewide law regulating billboards.
A federal court threw out Tennessee's 1972 billboard law on free speech grounds.
The existing law, the Billboard Regulation and Control Act, was ruled unconstitutional by the 6th U.S. Circuit Court of Appeals — the final act in a fight between state regulators and a Memphis billboard owner going back more than a decade.
As a result, the state is now out of compliance with the federal Highway Beautification Act, putting some of its federal highway funding at risk. State legislators intend to rectify that with a new law this legislative session.
But what exactly is in that bill, and whether it loosens previous restrictions on the number of billboards allowed along Tennessee highways, is shaping up as a familiar debate between the outdoor advertising industry and advocates for scenic protections.
“I think it’s really important that we express to committee members and urge the public to weigh in on their preferences,” said Marge Davis, president of the nonprofit group Scenic Tennessee.
Knoxville state Rep. Martin Daniel, who owns a billboard company, said in a text message Thursday, “The outdoor advertising industry supports reasonable regulation. We are working with government agencies to implement a law to replace the one that was ruled unconstitutional.”
A Long Fight
When the Highway Beautification Act passed Congress in 1965, it included a requirement that state governments maintain “effective control” of signs within 660 feet of an interstate or primary highway. As an incentive for compliance, the act conditions 10 percent of a state’s federal highway funding on having some form of billboard regulation.
Tennessee passed its billboard law in 1972, which requires permits from the state Department of Transportation for most billboards. It established a host of regulations, including spacing requirements — e.g., no two billboards on the same side of an interstate can be closer than 1,000 feet.
It also included exceptions, including one that turned out to be significant: Billboards advertising services provided on the same property where the sign is located didn’t need permits. These are considered “on premises” signs under the law.
In 2006, West Tennessee businessman William Thomas, who owned about 30 billboards, sought a permit to put a billboard on a vacant lot in Memphis. TDOT rejected the application, on the grounds that the site didn’t meet the state’s requirements. Thomas went ahead and built the billboard anyway, leading to a protracted legal fight that included lawsuits filed in both state and federal courts.
The history of the litigation is complex — it’s spelled out in the 6th Circuit decision, posted here — and Thomas took various tacks, including at one point removing advertising from his signs and posting patriotic messages instead.
Ultimately, in 2013 he filed a federal lawsuit arguing that the state law violated First Amendment free speech protections, because it distinguished between different types of signs based on what they said.
Between the filing of that suit and a decision in it, something important happened: a 2015 decision from the U.S. Supreme Court in a case called Reed v. Town of Gilbert. The court struck down a local sign ordinance on the grounds that it privileged certain kinds of speech. The ramifications of the decision have been felt across the country, as cities and states have scrambled to make sure their regulations can still pass constitutional muster.
In Thomas’ case, he argued that the law’s allowance of on-premises signs was effectively a form of content policing, since it distinguished between speech advertising one thing (services provided on site) and speech advertising another (services provided off site).
The state argued that it wasn’t policing content, just location. But the federal district court disagreed, saying there was no way to determine the difference except by looking at the content of the speech on the sign — the kind of distinction the Reed decision forbade.
That ruling was ultimately upheld on appeal by the 6th Circuit. In the decision issued last Sept. 11, Judge Alice Batchelder wrote, “The Billboard Act’s on-premises exception scheme is a content-based regulation of (restriction on) free speech.” She added, “[T]his is neither a close call nor a difficult question.”
The lawsuit and ruling dealt only with the on-premises exception to the law. But because the law did not include a severability clause — which would allow the rest of it to stand even if one part were found unconstitutional — the entire act was thrown out.
Filling the Void
As soon as the ruling came down, TDOT stopped accepting applications or issuing permits for billboards, or attempting to enforce the now-invalidated law. On its website, TDOT says, “At this time the Department of Transportation has indefinitely suspended regulatory enforcement of the Outdoor Advertising Control Program.”
The 6th Circuit ruling does not affect local regulations like those in Knoxville — which banned all new billboards at new locations in 2001 — or Knox County, which banned new digital billboards in 2013. (Billboards that were in place before those restrictions were grandfathered in as non-conforming uses.)
But it does put the state at risk of losing federal highway funding, which is why the Legislature is moving quickly to draft a new law.
Joyce Feld, president of Scenic Knoxville, said groups like hers would prefer the state to simply revise the old law by taking out the problematic sections and keeping the rest of the regulations the same. But given the first opportunity in decades to revisit the law, she said, the outdoor advertising industry is pushing to loosen some of those restrictions.
Feld is concerned that minimum spacing requirements could be reduced, and billboard owners could seek expanded authority to remove trees and vegetation in the public right-of-way that could obstruct the visibility of their signs. They could also change the rules on when a damaged billboard can be replaced or has to be removed.
If that happens, she said, “The net effect is we will have more traditional and digital billboards.”
At the moment, there are at least two different draft versions of the bill circulating in Nashville, one supported by the outdoor advertising industry and the other originating with TDOT. Any new bill will have to go through the transportation committees in the House and Senate.
Sen. Becky Duncan Massey, R-Knoxville, chairs the Senate Transportation Committee. She said she is urging all the interested parties to work toward a single compromise bill.
“We’ve been meeting for several months on this,” Massey said. “The different parties are all weighing in on solutions.” She added, “I’m still hopeful there will be one bill that will be moved.”
Given the federal funding implications, there is a sense of urgency. Massey said there could be a new bill passed by the end of February.
Davis said she hopes legislators take into account the economic interests of not only the outdoor advertising companies but the state as a whole.
“There’s a lot of data showing how much a state or a region benefits economically from scenic protection,” she said.