AUSTIN (KXAN) — For years, advertising companies have pushed for Austin to allow digital billboards—illuminated billboards which have rotating rather than static messages—in more places around the city. The city’s policy has disallowed companies from placing digital billboards in places not on their own premises, like the side of the highway.
In late August, the U.S. Court of Appeals for the Fifth Circuit found this distinction for signs off company premises as “content-based” and in violation of the First Amendment. The Fifth Circuit reversed an earlier district court’s decision and remanded the case to the district court.
Now, at least one nonprofit is asking the City of Austin to defend its policy and appeal this decision, Austin outlet Austonia first reported this week.
Sarah Tober, executive director for Scenic Texas, a nonprofit “dedicated to the preservation and enhancement” of Texas’ “visual environment, particularly as seen by the traveling public,” explained her organization sent a letter to Austin’s mayor and city council asking them to put pressure on the city to file an appeal. Scenic Texas advocates to promote “scenic qualities of Texas” such as dark sky preservation and planting trees along roadways.
Tober explained her organization is getting involved, because this district court decision—if allowed to stand—will set a precedent for the rest of Texas, Louisiana and Mississippi to allow more digital billboards. Scenic Texas is prepared to support the City of Austin in fighting the circuit court decision, she said.
“We believe that the Supreme Court will and should take this case up,” Tober emphasized, adding that she believes there are other legal precedents to back up the City of Austin’s policy.
Scenic Texas and other opponents of digital billboards claim these signs not only create “visual blight” but are also distracting to drivers.
Billboard companies, however, say these digital billboards allow a cheaper and more modern advertising option for companies.
Whether that appeal will happen is up in the air. A city of Austin spokesperson told KXAN Wednesday the city is “considering next steps” in light of the Fifth Circuit decision, noting the deadline to appeal is January 2021.
This case started when Lamar Advantage Outdoor Company and Reagan National Advertising of Austin sued Austin for not allowing them to turn existing static billboards in Austin into digital billboards.
Under Austin’s policy, digital signs such as those outside the Frank Erwin Center and the Austin Convention Center, have been allowed, because they are on-premise. But companies like Reagan and Lamar were not allowed by the city to digitize static billboards they own at off-premise locations, such as next to Austin streets or highways.
Reagan and Lamar have many prominently placed static billboards in and around Austin. Reagan’s General Manager for the Austin Market, Bill Reagan, said his company has around 500 sign locations in Central Texas, with most of those in the City of Austin.
Reagan said right now he is waiting for the legal process to play out as the case is remanded to a lower court.
“We feel that we’ve been vindicated in the courts in regards to our opinion,” he said.
He says of all the markets his company operates in, Austin is an anomaly in its limits on digital billboards.
Digital billboards, he said, open up “a great deal of possibilities, especially for small and local businesses that maybe couldn’t have afforded more traditional advertising.”
He added 70% of Reagan’s business consists of local clients in the Austin area.
“We only expect that number to expand when you go to digital,” Reagan said.
Reagan added his company is open to dialogue with the city to see if a compromise could be reached about signage policy.
Tober, however, believes if the Fifth Circuit decision is allowed to stand, the result will be “many unwanted digital billboards erected everywhere.”
“This is a far-reaching action taken by a federal court to invalidate local control over commercial advertising billboards,” she added.
The push for digital billboards in Austin has been going on for years.
In 2007, the Federal Highway Administration (FHWA) and the Texas Department of Transportation reversed long-held prohibitions of digital (intermittently changing) billboards to operate along federally regulated highways.
In 2017, billboard companies, the Austin Police Association, and organizer Linda Curtis of Indy Austin joined forces in an attempt to allow more digital signage through a petition effort. The city’s digital billboard policy has been discussed before the city council, at commission meetings and during the city’s efforts to overhaul the land development code over the past several years.
The City of Austin says it currently has 492 registered billboards in the Austin Code Department Case Management Database. Austin Code is in charge of making sure these billboards are registered and confirming when billboards are relocated. The City of Austin’s Development Services Department reviews all permitting issues with billboards.