Challenge to Digital Billboards Revs Up

     WASHINGTON (CN) – As he left the engine running for a suit that could wipe digital billboards off the country’s roads, a federal judge used nearly every driving pun in the book.
     Scenic America sued the U.S. Department of Transportation earlier this year after the department “gave the green light” to let its divisions permit digital billboards in certain circumstances.
     Dedicated to preserving the country’s visual beauty, Scenic America says the decision bypassed the mandatory notice-and-comment rulemaking process required by the Administrative Procedure Act.
     “The group cautions that the bright, moving lights on digital billboards tow a load of safety and aesthetic concerns – that they threaten to turn Route 66 into the Road to Perdition,” U.S. District Judge James Boasberg quipped in his ruling.
     He noted that the Outdoor Advertising Association is “in the passenger seat” as an intervenor.
     In refusing to dismiss Wednesday, Boasberg said that Scenic America lacks standing to sue because it “is driven by mere ideological objections,” and not by any harm.
     “Although both arguments present difficult and close questions, the Court concludes that neither gives cause to end this case by fiat,” Boasberg added. “Scenic America has standing to challenge the Guidance because its case is fueled by concrete harm to the organization’s programs. And because the Guidance is the end of the road for FHWA decisionmaking on this matter, it constitutes final agency action. The Court accordingly declines to take either exit proposed by defendants and intervenor and orders that the case should speed on to its next turn.”
     Historically, the Department of Transportation has operated under the belief that digital billboards violate key language in agreements between the states and the federal government related to the Interstate Highway System, but the Department changed its tune in 2007, issuing a guidance that instructed its offices to approve permits for digital billboards so long as they applied with state laws and public safety requirements.
     The judge’s ruling gives standing to Scenic America, which can now sue under Administrative Procedure Act guidelines for decision making.

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