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Office of Planning, Environment, & Realty (HEP)

Conflict Assessment: Federal Outdoor Advertising Control Program

Options for Moving Forward

Three very different types of issues emerged during this Assessment. Two of the three warrant near-term attention. These are the organizational issues and substantive issues. They should be approached using different mechanisms. Organizational issues should be addressed first or concurrently with substantive issues.

Organizational Issues

We identified and detailed organizational issues at both the Federal and state DOT levels. This, however, is an Assessment of the Federal OAC Program. The effectiveness of the Federal program depends largely on its organization and resources. Given input we received throughout the Assessment, it is clear that the Federal program needs improvement.

We recommend that FHWA convene a small ad hoc forum consisting of current and former staff from FHWA, representatives from a few state DOTs, and others as needed to review and suggest improvements in structure, resources and the degree to which the program should be centralized. Given the need to have a tightly coordinated control Program that involves both Federal and state regulators, it is important to include a handful of state DOT representatives for their implementation experience and knowledge. Both state and Federal regulators want to see a more cohesive partnership between the two levels of government.

This forum should be responsive to the needs of the OAC Program and not have a long life. A thoughtful, experienced and committed group should be convened with a specific charge, meet on four to five occasions, and produce a recommended approach for improving the OAC Program within FHWA within six months.

There are clearly similar organizational issues within the state DOTs. As noted earlier, the issues at both the Federal and state levels are considered significant and impediments to an effective OAC Program. However, because of the relative ease of addressing a single entity as well as the importance of real and symbolic leadership from FHWA, it is imperative to address the FHWA organizational issues first.

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Substantive Issues

During the course of our interviews we asked people if, based on the problems and issues they had identified, they believed a diverse group of stakeholders might sit down together productively to resolve OAC program issues or challenges. While there generally was a positive response about the potential of a collaborative effort, many also expressed doubt about whether collaborative problem solving could succeed. This opinion was usually based on the attitude, relationship and organizational issues addressed earlier.

This section highlights a number of options for moving forward. We believe the substantive conflicts we have identified are particularly suitable to collaboration for several reasons:

Below are some considerations for successful collaborative efforts, including discussion about the motivations for the key interests to participate in a collaborative effort. We also describe a number of options, including two we believe have potential to lead to productive results, assuming the conditions for successful collaboration can be met.

Reality Check: Is There Sufficient Motivation to Collaborate?

Is there sufficient motivation for the variety of key interests to participate in a collaborative process? A range of reasons why interests might not want to collaborate is raised in the following paragraphs.

The state and Federal agencies might see collaboration as a mechanism that simply airs their shortcomings in administering the OAC Program. And, they might fear that a high profile process might increase pressure to shift organizational priorities away from areas the agencies (and possibly their constituencies) currently find important. Those from a scenic perspective might want to see more absolute boundaries for various issues, such as nonconforming signs or new technologies. They could fear that collaboration would lead toward lowest common denominator solutions that unacceptably compromise their positions. The industry might see collaboration as a move that might increase regulation in ways that would adversely affect their competitive advantage and ultimately profitability. With these potential real or perceived obstacles, is there sufficient motivation for the affected interests to want to participate in a collaborative problem solving effort?

FHWA is clearly a critically important participant. Many people told us that unless FHWA is actively engaged with others in the analysis of problems, the development of options, and the consideration, refinement and acceptance of the best alternatives, the time and effort involved in a collaborative process would likely be wasted. As one person noted, "I would like to see a diverse group get together. But it would need Federal buyoff and blessing in advance and a commitment that FHWA would actually listen. It might help get the feds off their ivory tower." We see FHWA as part of the problem, but also think that, as reflected by FHWA's willingness to openly explore the issues through this Assessment, the agency is seeking ways it can make the OAC Program less acrimonious and contentious, and more up-to-date, well-coordinated and effective.

We believe that those from the scenic perspective or the state OAC regulatory programs could benefit from a dialogue that raises, clarifies and potentially resolves various issues. The scenic organizations could raise and articulate their concerns and they might be able to make progress on issues of interest to them, such as nonconforming signs. But, if scenic advocates were to come to the table with a fixed and unbending agenda, it is doubtful that meaningful progress would be made on any front. The state regulating community would find it advantageous to participate if the dialogue leads to greater clarity or simplification and consistency for their programs by addressing issues such as commercial and industrial area abuses or standards for new technology.

The benefits to the outdoor advertising industry from a collaborative policy dialogue process are less predictable. Our interviews suggested that the industry would like to see certain issues -- such as technology, vegetation control, and nonconforming signs – receive attention. Industry members generally perceive that the billboard industry is heavily regulated, although the industry also benefits from a number of provisions of the HBA and would want to ensure that future changes in law and regulation are not to their economic disadvantage. At the same time, those from industry express interest in moving forward on and enhancing understanding about certain issues. One individual noted, "If we can begin to understand each other's views, maybe we can begin to find solutions."

If a collaborative effort is pursued, it is important that the participants give the process ample opportunity to succeed. Unless the industry sees it as being in its best interests to participate in good faith it might try to scuttle the process through political or legal action. Scenic interests might do the same. One individual expressed some of these concerns: "We would be skeptical if any changes were to be pursued by FHWA or the DOTs alone. We need the involvement of all the stakeholders. Not sure about what the group might accomplish. And, we believe that whatever good planning might be put together might get circumvented by money and politics that would undo everyone's hard work overnight."

A collaborative effort will not be launched and will not be effective without individual leaders stepping up to make this a priority. Although we have highlighted the essential role FHWA must play, leaders or champions from industry, the scenic perspective, and the state regulating community need to demonstrate that improving OAC Program effectiveness is a worthy pursuit. This pursuit will require hard work, a commitment of time and energy, and a willingness to tackle and negotiate pragmatic solutions to the challenging issues we have identified in this Assessment. Thus, what happens next logically depends on initiative and leadership.

In sum, a collaborative effort will only work if the parties find there is potential benefit in being part of a transparent and open negotiating process. In this instance, as is often the case, there are differing values, distrust among the parties, varied financial incentives, disparities in resources, and organizational differences that need to be recognized. Some of these differences might prove to be high obstacles to overcome. We believe, however, there is sufficient interest in seeking improvement for several important issues and that a well-conceived collaborative process can lead to productive outcomes for issues amenable to agreement. We think five Tier I issues – new technology, abuses of signage in commercial and industrial areas, the future of nonconforming signs, vegetation control, and inconsistent regulation and enforcement – should be addressed first through a collaborative process. The process should explicitly include a phased approach with milestones to allow those participating to review progress and commit to ongoing participation. We are convinced that, on the heels of this Assessment, initiative and leadership to foster productive collaborative problem solving will need to come from FHWA and other key stakeholders.

Conditions for Successful Collaborative Problem Solving

There is a full range of optimism and pessimism about what might be accomplished through a collaborative process. Several comments reflect the varied sentiment: An early interviewee, who was being critical of FHWA's execution of the program, said "I applaud them for this Assessment effort as a step in the right direction." Another offered a more discouraging outlook, saying "I have very little hope that this will lead to any significant, acceptable solutions. I am very pessimistic." Another offered a more upbeat prognosis: "What could be accomplished -- solid agreements among the groups. We would stop the renegade groups from coming in and pushing the boundaries of the law. We could move toward the 'right' amount of supply and demand that recognizes both the advertising and aesthetic values."

One individual reflected the feeling that collaboration is needed, but, with history as prelude, the prospects for success are daunting: "I hope this doesn't end up like the 1981 report where the conclusion was simply that there is no consensus. We need to talk. We're right to recognize that billboards won't go away and that there is new technology. Let's figure out how to live together. Even one major improvement would be progress. At a minimum, we can learn what the best things are that states are doing."

Collaboration is not a panacea, but much has been learned about conditions that lead to both success and failure as the field of environmental conflict resolution has evolved. In the context of Outdoor Advertising Control, we offer these conditions for successful collaborative problem solving:

In addition, on a practical level, specific guidelines are helpful:

Several process options are explained below. They range from continuing with a business-as-usual approach or "no action," to creating education programs, to policy dialogues at two distinct scales.

"No Action" Option

Because of the pervasiveness of pessimism expressed to us by some, one of the first options we considered was "no action." What is implied in this alternative is "business-as-usual" in which parties continue to act largely independent of each other or in coalitions according to what they see as their best interests. If this course is followed, no concerted problem-solving process would be convened. The argument for such a course is the belief that the affected interests cannot reasonably be expected to make meaningful progress on any of the issues and that the current status quo is not sufficiently problematic to warrant any extraordinary effort to improve things.

We have concluded that this no-action course is undesirable for four primary reasons: 1) program inefficiencies are costly, 2) business-as-usual is likely to create more conflict and discontentment over time, 3) it makes sense to attempt to update a number of program components that originated when conditions were much different, and, 4) in spite of their skepticism, there is considerable desire on the part of many stakeholders to improve the program and contribute to that improvement.

Recommended Options for Substantive Issues

We recommend two collaborative options:

  1. A National Policy Dialogue
  2. A Multi-State Policy Dialogue

Several other approaches that might be valuable complements are identified following the discussion of these two primary collaborative options.

National Policy Dialogue

In a National Policy Dialogue, representative stakeholders would be convened from around the country. Issues that might be particularly appropriate for this option include: the use of new billboard technology in outdoor advertising, abuses of signage in commercial and industrial areas, the future of nonconforming signs, and inconsistent regulation and enforcement.

The key advantage of this option is that it matches the scope of many of the issues with a national process. Outdoor advertising control is mandated by Federal law; the HBA has been in force for over forty years and a number of its aspects are dated; and a number of issues warrant attention. Thus, a comprehensive, nationwide dialogue to address various challenges consistently across the states would be helpful. Another advantage of a National Policy Dialogue is that it makes it easier and more meaningful for national organizations to participate. A National Policy Dialogue would be a highly visible effort that could receive political and policy support at the national, state and local levels.

The key disadvantage of this option is its cost and complexity. In one setting, participants would have to deal with vastly different histories, perspectives, philosophies and geographies. Another problem might be the relative handicap that representative state agencies, local governments, scenic or environmental organizations might face because of staffing or budget constraints. This option is also likely to be the most time-consuming and the comprehensiveness of its scope might make it difficult to achieve meaningful results in an acceptable period of time.

Below is a list of conditions for success for a National Policy Dialogue:

  1. FHWA leadership, endorsement and active participation.
  2. Committed participation from selected states and key scenic and industry interests.
  3. Communication channels to inform all states and key interests that are not actively engaged in the Dialogue.
  4. A commitment by all participants to work through a structured and facilitated process.
  5. A commitment to work toward results, perhaps through a phased process that emphasizes first addressing important issues that are most amenable to agreement.
  6. An ability to identify and willingness to work on issues that are applicable to all or most states.
  7. Adequate time to work through substantive issues.
  8. Adequate inclusion of key interests.
  9. Participants who can speak for and commit their organizations or agencies.
  10. Willingness of the participants to negotiate in good faith.
  11. Availability of adequate resources in advance.

Multi-State Policy Dialogue

States have the primary responsibility for and considerable discretion in implementing the HBA. A Multi-State Dialogue could build on factors that specific states have in common (e.g., environmental and scenic conditions, types of vegetation, the fundamentals of the economy of the region, history and culture) or simply involve several states with evolved programs regardless of geographic commonality. A Multi-State Dialogue would involve FHWA, three to five states and representatives from the outdoor advertising industry, scenic organizations and local jurisdictions. Solutions developed could be broadly acceptable, supported by FHWA, implemented by the states at the table and ultimately advocated to a larger number of states over time as appropriate. A Multi-State Dialogue recognizes and builds on the fact that states have considerable discretion in their implementation of the HBA. It constitutes a "bottom-up" approach to seeking meaningful and relevant changes. Issues that might be particularly appropriate for this option include the control of signs in commercial and industrial areas, how the state DOTs are organized to effectively implement control of outdoor advertising, and vegetation control.

The key advantage of this option is its manageability: it involves a sufficient number of states to have regional or perhaps national applicability but few enough to allow for efficiencies. Another advantage is that it builds on the natural incentive states have to learn from each other and to develop more effective, up-to-date regulation. This option also is conducive to allowing issues to be discussed in depth and resolved to the satisfaction of key constituencies in a limited geographic area. The states that would participate in a Multi-State Dialogue would likely be ones with engaged state DOT leadership. This option would be less costly and likely less time-consuming than a National Policy Dialogue.

The key disadvantage of this option is that only a limited number of state perspectives can be represented at the table. States are sufficiently different that the findings and conclusions from one state might not be relevant to other states or the FHWA national program. In addition, this approach could be more taxing on the resources of various agencies, companies and groups if more than one Multi-State Dialogue were to be pursued. As with a National Policy Dialogue, attention would need to be paid at the outset to assuring adequate participation from state and local agencies as well as scenic or environmental interests.

Conditions for success for a Multi-State Policy Dialogue include:

Supportive Processes

The National Policy or Multi-State Dialogue models could benefit from complementary and supportive processes. Several of these options are described below.

Education Programs

A well-conceived and well-executed education program could bring greater understanding, consistency and predictability to OAC. Such a program could reduce the variability of enforcement by the state DOTs, could compensate through consistent education for the lack of resources faced by many regulators, could clarify the content and intent of the law, and could share best practices across various jurisdictions. The National Alliance of Highway Beautification Agencies (NAHBA) or FHWA itself could play an important leadership role in such an initiative. We believe that an education program would be helpful, but should not be considered at this point as a substitute for the recommended collaborative options. Rather, a well-executed educational program might constructively complement the results produced by collaborative efforts.

One-State Pilot Program

Several states are interested in the potential for pilot programs. FHWA has issued guidance on requirements for pilot programs but, to date, no pilot has been approved.

The goal of the One-State Pilot Program described here is to experiment with ideas and approaches to outdoor advertising control so that results might have national applicability. This option would involve an experimental approach to one or more issues in the selected state. A hallmark of this option is a commitment to develop action and follow through on one or more reforms that would improve the regulation of billboards in a particular state. It might be considered a "test and invest" model that allows policy changes to be tested on a state basis before broader implementation.

The major challenge, at the outset, would be what issue is selected for a pilot program, how it is selected, and by whom. This approach might be a useful vehicle for creatively addressing nonconforming signs or unzoned commercial and industrial areas. Some pilots have been suggested to FHWA already and these might be appropriate.

The key advantage of this approach is that it allows a single state experiment to see how OAC can be more effectively implemented and selected issues better addressed. It recognizes the desire on the part of several states to see near-term change. The single state chosen should be one with a strong, well-regarded program so its results would be meaningful to other states.

There are several disadvantages to this approach. One is that it may be hard to undo the results of an experiment if the experiment leads to less than desirable results. Another is that FHWA has no history of approving pilot projects involving OAC. There also is the risk that significant programmatic changes at the state level might require additional staff and financial resources. Furthermore, changes pursued at the state level that are not ultimately seen as desirable or legal at the Federal level might lead to frustration on the part of industry, scenic advocates and the regulatory community.

We see a pilot program as a potentially useful complement to one of the collaborative approaches suggested above. It would demonstrate FHWA's support for creative, pragmatic and experimental thinking. To be most valuable, the selected state should have high credibility for its outdoor advertising control program nationally.

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Overall Recommendation

In this section of our report we have presented and discussed different approaches for addressing organizational and substantive issues.

To address its organization issues, we recommend that FHWA convene an ad hoc forum with a six-month timeline to address OAC Program organizational issues at the Federal level. It is important to address these issues early since they are fundamental to improving OAC effectiveness.

We also recommend a collaborative approach for addressing a range of substantive issues. We have shared our perspective about perceived motivations for various interests to participate in a collaborative process. We identified necessary conditions and suggested guidelines for successful collaborations. The most viable approaches involve collaborative effort that is characterized by inclusiveness and balanced participation. We believe that "no action" is undesirable for the four reasons given.

The two collaborative options we see as having particular merit are:

Table C on the following page summarizes the two recommended collaborative approaches, the Tier I issues that might be most applicable for each, and the focus areas that could be addressed.

These collaborative options are not either-or choices. They could be pursued sequentially, as complements to one another, or by investing in the one approach that is considered to have the greatest merit given the issues under consideration. The other supportive processes we have described could be useful complements to either option. If a single collaborative approach is pursued, we recommend a National Policy Dialogue. In either case, leadership and initiative from FHWA and other stakeholders will be essential to moving forward.

Table C - Collaborative Options with Tier I Issues

Approach Tier I Issue Potential Focus Areas
National Policy Dialogue New Billboard Technology

Abuses of Signage in Commercial and Industrial Areas

The Future of Nonconforming Signs

Inconsistent Regulation and Enforcement
  • Safety
  • Standards
  • On-Premise Signs
  • Enforcement
  • Criteria
  • Consequences
  • Goal
  • Definition
  • Customary maintenance
  • Acts of God
  • Flexibility
  • Funding
  • Consistency in standards
  • Consistency within states
  • Enforcement
  • Inventory
Multi-State Policy Dialogue Abuses of Signage in Commercial and Industrial Areas

Vegetation Control
  • Enforcement
  • Criteria
  • Consequences
  • Education
  • Federal role
  • Standards
  • Enforcement
Updated: 9/5/2014
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