In the recently published commentary, “Texas cities should upgrade billboard laws for digital age,” Russ Horton suggested that Austin and other Texas cities quickly “consider carefully crafting” digital sign agreements with sign owners or “find themselves left behind by the digital revolution.” He urges cities to allow off-premise electronic digitally changing commercial advertising signs because “most of the state’s largest metropolitan areas” allow them and because business owners are allowed to have them for their on-premise commercial activities.
Horton leaves out critical information. For example, it might be important to know that he represents SignOnAustin and Reagan National Outdoor Advertising, the very billboard company that will financially benefit from the legal changes he is promoting. In addition, he provides incomplete and misleading information. Houston, Fort Worth and Austin prohibit digital billboards. San Antonio allowed 13 before prohibiting any more. Dallas is the only major urban area in Texas to allow them. The city allowed 50 structures that now litter their highways and city views. In fact, according to TxDOT’s permitting records, 90 percent of Texas cities do not permit digital billboards, and according to billboard company reports, only about 5 percent of the approximately 6,500 digital billboards in the United States are located in Texas. In fact, there are four states — Vermont, Maine, Alaska and Hawaii — that permit no billboards, whether digital or not.
Horton did not say what it really means to have one of these electronic sign faces operating alongside our highway, continuously changing every eight seconds. But think about it. Every eight seconds means 450 commercial advertisements every hour, or more than 10,000 times every day. In the world of regulating texting while driving, do we really think it is safe to erect these in front of highway drivers? Horton claims they are safe but didn’t provide the whole picture. The study he cited has been criticized by distracted driving experts, and the safety of digital billboards has been disputed by multiple studies. Two recent ones out of Florida and Alabama are most concerning since they indicate these signs not only distract drivers but they likely cause accidents.
Horton also doesn’t address what these signs do to nearby property values and the quality of life of nearby residents. Studies are now showing that these signs negatively affect property values in the area, and concern is growing that digital billboards also negatively impact those in nearby homes.
The claim that the Third Court of Appeals opinion in AusPro v TxDOT — about one political sign — will change everything is also misleading. TxDOT has filed a motion for rehearing, and if that fails, TxDOT could appeal to the Texas Supreme Court. The Texas Legislature could also act to correct the issues raised in the AusPro decision. Because these possibilities are very much in play, there has been no change in current law; no mandate has been issued by the appeals court.
But even if, as Horton claims, “Judges are likely to follow the Third Court’s lead and strike down these ordinances altogether, leaving communities that had relied upon them powerless to regulate the type, number, size and location of roadside billboards within their city limits,” I would prefer to rely on professional city planners, city attorneys and our publicly elected officials to develop policies that benefit an entire community, rather than SignOnAustin and Reagan Outdoor Advertising, to solve our problems. The $7 billion billboard industry’s limited interest is to profit handsomely from operating as many driver-distracting, brightly lit, changing digital billboards as possible alongside our public roadways.
The AusPro opinion will be deeply concerning if either it is not modified by the courts, legislatively cured or both — but that just means Texas cities should work with municipal attorneys with expertise in First Amendment sign issues to assure that ordinances are constitutionally sound. Nevertheless, there is no reason for cities to panic or to be bullied into quick action to allow invasive digital billboards, particularly since the AusPro case was about one political sign and had nothing to do with commercial advertising billboards, digital or not.
Lloyd is vice chair of the board of directors of Scenic Texas and Scenic America; Kinney is president of Scenic Austin.