Supreme Court declines to hear Scenic America case v. U.S. DOT over digital billboards

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The United States Supreme Court has denied review of Scenic America’s lawsuit against the U.S. Department of Transportation over a 2007 memorandum issued by the Federal Highway Safety Administration (FHWA) that allowed digital billboards to begin proliferating on federal aid roads across the country.

The United States Supreme Court has denied review of Scenic America’s lawsuit against the U.S. Department of Transportation over a 2007 memorandum issued by the Federal Highway Safety Administration (FHWA) that allowed digital billboards to begin proliferating on federal aid roads across the country. In an unusual statement accompanying the denial, three of the justices agreed with Scenic America that the lower courts' deference to the FHWA's interpretation of "flashing, blinking or intermittent" lighting presented important questions of law.

“Scenic America is disappointed with today’s announcement from the Supreme Court,” said Mark Falzone, president of Scenic America. “The bar for review is very high and we knew our chances were slim, but we felt very strongly that this was an issue we needed to pursue as far as possible on behalf of our supporters, affiliates and all those who care about America the Beautiful.”

Today’s announcement ends a legal effort Scenic America initiated in January 2013 with the filing of a lawsuit in U.S. District Court that sought to ensure that the integrity of Lady Bird Johnson’s Highway Beautification Act is upheld by federal officials.

Digital billboards first began appearing on federal aid roads in 2005, and as more of them went up around the country state regulators sought guidance from the FHWA on their legality. Longstanding language in most state-federal agreements written to carry out the Highway Beautification Act prohibit signs with “flashing, blinking or intermittent” lighting.

In September 2007 FHWA issued a memorandum stating that billboards with images changing every 4 to 10 seconds would not be considered intermittent, setting off a cascade of digital billboard construction around the country. There are now around 7,500 digital billboards nationally, with more going up every day. As a result, roads have become less safe, property values have declined and quality of life has been diminished for countless people who are forced to live, work or drive by these bright, blinking signs.

“We extend our sincere gratitude to our affiliates, supporters and all those who helped us persevere to this juncture, including our counsel: Susan L. Trevarthen and Laura K. Wendell at Weiss, Serota, Helfman, Cole & Bierman,” said Falzone. “Scenic America still believes that digital billboards are visual pollution and we will continue to oppose them on behalf of our supporters, affiliates and the public.”

Case No. 16-739 in the U.S. Supreme Court.

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Max Ashburn
Scenic America
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