The Senate Committee on Transportation met to discuss a series of bills. The report below covers SB 2006 relating to highway signage regulation.
SB 2006 (Watson) Relating to erecting or maintaining certain outdoor signs regulated by the Texas Department of Transportation.
- CS laid out.
- Court ruling that highway signage was unconstitutional – if stands there will be no billboard regulations
- Seeks to maintain current scope of billboards in Texas
- Shifts regulatory focus away from the signs content and instead focusing on whether the sign owner is receiving payment for the sign
- Allows TxDOT to regulate
- Bill allows Texas to retain federal highway funding
- CS removes section 12 – added height and spacing regulations
- Addresses concern raised from stakeholders for an on premise sign
- Potential floor amendments:
- Needs to amend language for on premise sign (McDonald’s sign)
- Propose language that addresses owners that buy land just to place a sign.
- Nichols – do you have those in writing?
- Can get if needed.
- Hinojosa – the decision from court of appeals dealt more with freedom of speech not necessarily the height or size. Bill focuses on the transaction?
- Content based is high scrutiny, trying to change to focus from what’s on the sign to if the sign owner receives payment for the sign.
- Garcia – the sign owner getting payment or the land?
- Could have both, but focuses on commercial transaction for the purpose of the sign. Could have landowner that is approached to be paid in return for placing a sign, you could also have someone who places the sign. Focus is not what is on the sign, but if there was a commercial transaction.
- Hall – what is the purpose for this, without the court ruling in mind? Why do we need regulation?
- Hard to set aside the ruling. A couple different things, for a long-time Texas has decided it is important to regulate for distraction on the road and beautification purposes along with the federal funding. To receive federal funding, there has to be effective control. With the court ruling, we will not only lose control, there won’t be any.
- Hall – this is a way for TxDOT to control the signs?
- This would be a way for Texas to avoid regulating on content based which is a limit on freedom of speech.
- Hall – said that this would be a way for TxDOT to end control?
- No, misspoke. This would be a way for Texas to avoid regulating based on content base which would be unconstitutional. You would still be able to regulate but in a constitutional way.
James Bass, Texas Department of Transportation – Resource Witness
- Auspro case was deemed unconstitutional because it limited the first amendment rights.
- They had to remove subsection B and C – which would repeal all outdoor signage.
- Currently going through the supreme court – we will have no outdoor advertising regulation in Texas until the legislator can reconvene
- Currently, regulation is based on content – SB 2006 trades it to an economic transaction
- Freedom to put up whatever sign owner wants if there is no commercial transaction compared to if owner is being paid from third party to put up sign
- Amended language is to capture the on premise location – not depending on what is or isn’t on the sing, based on if there is an economic transaction
- Watson – key is that if primary purposes was just to put up a sign, then that would be up to regulation.
- Hall – members would feel more comfortable if able to see amendment. What is the purpose? Is it not safety? Concerned on regulating signs for safety on the highways?
- Safety and beautification, should legislator not act, there would be no regulation. You could potential have a case where on sign was placed and multiples to follow because of competition.
- Hall – one has some metrics to put around it for safety and beautification. If focused on safety, concerned that what has been ruled by the courts for on item of free speech to another.
- There is strict scrutiny on freedom of speech. It is a lower level of scrutiny for economic activity than there is for freedom of speech.
- Watson – if it is content based, which is was is currently being faced, it applies strict scrutiny. By doing it by this bill, when it is not based on content, the government has high level of scrutiny. It is not tailored enough. Hears concern but has addressed the issue.
Becky Bluitt, TxDOT General Counsel – Resource Witness
- Safety is a big part of size placement etc when placing signs. If there was no regulation, then safety would be impacted.
- Hall – regulations should be placed on safety, but not on the monetary transaction
- Bass – then the question becomes what population does it apply to.
- Only spacing regulations, we would take in all the on premise signs and would be regulating all those signs such as gas stations.
- Watson – has tried to set aside all the safety regulations and focus on the court rulings for freedom of speech. Gave changed definition for amendment versus the proposed definition.
- Nichols – it reduces the regulation for on site premise signs.
- Creighton – there is not as much focus on size of the signs? This is not just in TxDOT right-a-way, but on private property? How do you verify if the signage is leased?
- Through regulation, we currently do focus on that. Yes, there is no TxDOT right-a-ways. We would continue our current practices for verifying leases.
- Creighton – is there any reinforcement on the signage? How do you verify if there is payment that changes hands when taking down signage that is part of a package?
- General no law enforcement activity. Normally it is a citizen or online complaint. To put up a sign you would need a permit if there is a transaction.
- Bass – it would still fall under a single transaction for all 10 signs.
- Creighton – for the farmer that is landlocked, gets permission upfront to put up an 8×12 foot sign saying “hay for sale”. There is no police, just neighbor to neighbor.
- Under the bill, that would not need a permit because there would be no commercial transaction of placing that sign.
- Creighton – the burden would be on the owner of the sign or property to explain. What about a parent company that is on a major freeway that has 15 different entities, that have billboards placed on requirements all along that frontage? How do we fall in the definition of “off premise”? Billboards promote different businesses.
- Bass – as long as they own the sign and is not leasing the ad space from anyone, it would be fine.
- Creighton – it is because they are promoting specifically what is under their parent company, even with a different type of businesses?
- Watson – under those circumstances, if parent business owns land but businesses are located elsewhere, the amendment would say that if the primary purpose of the owner of the property is to display a sign, then it would be regulated.
- Creighton – if business is elsewhere, it would be regulated?
- Watson – if primary purpose is to display a sign, then it would be regulated under the CS.
- Rodriguez – have we looked at other states in terms of their signage to see if the language tracks the best practice?
- Bass – New instance, so it follows a supreme court ruling. Tennessee is making the same moves, but we are on the front edge.
- All states that participate in this program have similar legislation. First state that has had statute ruled unconstitutional.
- Watson – opinion of Court of Appeals was on December 9th, 2016.
Margaret Lloyd, Scenic Texas – For SB 2006
- Gave historical background of beautification of highways in Texas
- Bill allows industry to do business while keeping highways beautiful
Russ Horton, Trial Attorney for Auspro Case – On SB 2006
- Believes regulation is necessary and appropriate
- Concern lies with intent to recreate a regulatory scheme that was on the books before
- Gave hypothetical of signage that could cause issues under the bill
- Problem is still making a regulation scheme, buy not only reading the sign but classifying the person.
- Nichols – have the federal government threatening to pull funding if Texas doesn’t regulate signs.
- Watson – points of difficulty on providing regulation. Pointed out that what we have come up with is content free. Happy to work with on proposed alternatives.
SB 2006 left pending.