July 30, 2008
Hon. Stephen Beshear, Governor
Commonwealth of Kentucky
700 Capitol Avenue
Frankfort, Kentucky 40601
Dear Governor Beshear:
I am writing to express the grave concerns of the Kentucky Resources Council, Inc. (KRC) with the proposed amendments to 603 KAR 3:080 allow the installation and replacement of current billboards along federal interstate highways, parkways and state primary roads, with electronic billboards. This abrupt reversal of long-standing regulatory policy in the Commonwealth prohibiting the erection of electronic off-premises billboards along our highways, will increase the risk of accidents for the motoring public and their passengers, and degrade the scenic beauty of our Commonwealth. For each and all of the reasons below, KRC urges you to direct that the Transportation Cabinet withdraw the proposed regulation.
The proposed regulation is contrary to Kentucky law.
KRS ? 177.863 4(A) states, Advertising devices which contain, include or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information. The prohibition against flashing or intermittent lights clearly includes electronic billboards such as those allowed under the proposed regulation that would change messages on an 8-second interval. Agencies, as you know, are creatures of statute and are prohibited by K.R.S. Chapter 13A from adopting regulations that are in conflict with statutory restrictions.
Additionally, unsuccessful efforts by the outdoor advertising industry in both the 2004 and 2006 Regular Session to enact state legislation that would allow the use of such electronic billboards is indicative that current law does not allow such off-premise commercial outdoor advertising devices.
The proposed regulations are inconsistent with the State-Federal Agreement between Kentucky and the FHWA and could cause a forfeiture of previous grant funds to the federal government.
In a 2006 letter to the Texas Transportation Cabinet regarding the Bonus Agreement between the Federal Highway Administration (FHWA) and Texas, the FHWA stated that where any sign illuminated by any flashing, intermittent or moving light or lights...including any type of screen using animated or scrolling displays, such as LED screen or any other type of video display, even if the message is stationary, then the wording in the agreement clearly prohibits such signs. (Emphasis added).
As you know, under the authority of KRS 177.890, Kentucky is a "Bonus Agreement" state and has made certain commitments to the federal government in order to receive highway dollars. States with Bonus Agreements must comply with the provisions of the Highway Beautification Act of 1965 as well as adhere to the national standards and the terms of the required Bonus Agreement. The Act provided that States which voluntarily agreed to control outdoor advertising adjacent to Interstate highways in accordance with national standards presently codified at 23 CFR 750, Subpart A, would receive a bonus of one-half of one percent of the highway's cost of construction. Failure to comply with the agreement could mean forfeiture of all funds received from the Bonus Agreement. So far the total federal dollars earned by Kentucky through the Bonus Agreement have totaled $2.5 million.
Kentuckys 1971 State-Federal Agreement For Carrying Out National Policy Relative To Control Of Outdoor Advertising In Areas Adjacent To The National System Of Interstate And Defense Highways And The Federal-Aid Primary System contains language prohibiting advertising devices which contain, include or are illuminated by any flashing, intermittent, or moving light or lights with the exception of public service information boards, and advertising devices which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled way of the highway which are of such intensity o brilliance as to cause or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any drivers operation of a motor vehicle[.]
As noted above, in interpreting the Texas Bonus Agreement, which contained language on lighting identical to that of Kentuckys agreement, the FHWA indicated in 2006 that the prohibition would cover flashing or intermittent electronic boards even if the message is stationary[.] Kentuckys agreement would appear to prohibit such signs.
Additionally, Kentuckys current regulations and bonus agreement prohibit lighting of an intensity that will cause glare or impair the vision of a driver or interfere with the operation of a motor vehicle. There is no doubt that the light emitted from a LED digital billboard is of such an intensity that could impair the operation of a motor vehicle. The very purpose of such lighting is to distract the attention of the driver from the highway. Allowing LED digital billboards would appear to violate Kentuckys Bonus Agreement with the federal government for either of two reasons, and could result in substantial cost to the state of Kentucky under both the Bonus Agreement and the Federal Highway Beautification Act.
Available credible evidence suggests that multi-message electronic billboards are a safety risk.
Beyond the apparent conflict with state law and federal commitments, the most significant reason for maintaining the current prohibition on electronic billboards is public safety.
The difference between electronic billboards and more traditional non-electronic billboards is significant. LED billboard technology works by trying to hold a drivers attention for a period of time long enough to observe the changing messages and pictures every few seconds using a series of extremely bright, colorful images produced via LED technologies. LED billboards are much brighter, making them visible from far greater distances and LED billboards are also more distracting because of the constantly changing displayed messages and advertisements. Current research suggests that these LED billboards constitute an increased safety risk to the traveling public, and further research on those safety risks should be conducted before Kentucky allows the use of these boards.
One outdoor advertising company described their digital billboard technology in this manner: Utilizing the newest technology, Digital Displays are computer controlled electronic billboards that transmit light through the use of Light Emitting Diode Display (LED) technology. The board holds your message for up to 10 seconds before the next message is displayed. Describing the frequency of display change, the company continued, The average viewable time of a road side bulletin is around 7 seconds. Keep in mind, no one can pull their eyes off of the road and focus on your ad for the full 7 seconds, so its best to shoot for an ad that can be read completely in under 5 seconds.
The proposed regulation would allow message changes every 8 seconds with the change completed within 2 seconds.
As a matter of public safety, a driver should not pull their eyes off the road for more than two seconds. A 2006 National Highway Safety Administration study recently found that eye glances away from the forward roadway greater than 2 seconds, regardless of location of the eye glance, are not safe. These eye glances were found to cause the relative crash risk to sharply increase over two times the risk of normal, baseline driving. The study also found that 23 percent of the crashes and near-crashes that occur in a metropolitan environment are attributable to eyes off the forward roadway greater than 2 seconds. The study concluded that eyes off the forward roadway, especially eye glances greater than 2 seconds, is a key issue in crash causation. National Highway Traffic Safety Administration, The Impact of Driver Inattention On Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic Driving Study Data, April 2006.
Other studies have also noted the potential safety risks associated with LED digital billboards, and have indicated that further research is still needed. In September of 2001, the Federal Highway Administration published a report entitled Research Review of Potential Safety Effects of Electronic Billboards on Driver Attention and Distraction, which reviewed all relevant studies and research to date about the effects of Electronic Billboards on the safety of drivers. The report identifies a multitude of factors that may contribute to unsafe driving conditions, including the type of illumination used on the electronic billboard, the placement of the sign, the frequency of message change, and the type of advertisement. The review identified questions that must be addressed to more adequately measure the safety effects of electronic billboards.
Before the Commonwealth embarks on a dramatic reversal of long-standing policy, the industry should be obligated to provide substantial credible evidence that electronic billboards do not pose an increased safety risk. To date, that evidence appears lacking.
In Nichols Media Group, LLC. v. Town of Babylon, 365 F.Supp.2d 295 (E.D.N.Y. 2005), the billboard proponent presented evidence of a study that purported to show that driver behavior was not influenced by the presence of billboards. The study was funded by the Foundation for Outdoor Advertising Research and Education, a close affiliate of the Outdoor Advertising Association of America (OAAA), which is the leading trade association for those who erect billboard advertising. The Court found that representatives of the OAAA were intimately involved in the design and conduct of the study. The Court also found that the study had not been widely disseminated, had not been subject to peer review, and the conclusions of the study had not been replicated in any other study. Therefore, the Court held that the study was so affected by industry bias as to lack credibility and reliability.
Two studies commissioned by the Foundation for Outdoor Advertising Research and Education and released in July 2007 claimed that digital billboards with a six to eight second change interval are no more likely to cause accidents than traditional billboards. Those studies were independently peer-reviewed by Jerry Wachtel for the Maryland State Highway Administration, who concluded that the studies contain numerous incidences of bias and misleading and inconsistent reporting. He warned against basing ordinances or code changes on the findings in either of these studies.
The above-mentioned FHWA studies and reviews all suggest that there are significant potential safety risks warranting further study. The Federal Highway Administration announced in January of 2007 that it would undertake its own study on the safety issues related to electronic billboards, with results expected in 2009. Kentucky should, at a minimum, await the findings of the FHWA research before reconsidering the current prohibition. KRC believes that even if the Transportation Cabinet possessed the statutory authority to do so, it would be irresponsible to change long-standing state policy to accommodate electronic multi-message billboards until (a) the FHWA research is completed, identifies all potential safety risks, and presents adequate solutions to those safety risks; and (b) the industry identifies an empirical basis grounded in peer-reviewed scientific literature conducted by independent researchers, demonstrating that electronic billboards do not put the safety of drivers in Kentucky at greater risk of accident and injury.
Electronic billboards could detract from Kentuckys scenic beauty.
KRS 177.850 declares the policy of the Commonwealth regarding regulation of Kentuckys billboard advertising industry to be the preservation and enhancement of the natural scenic beauty or the aesthetic features of our highways and adjacent areas. Allowing LED billboards to proliferate throughout the state will undercut the goals of the statutes, by increasing the visual presence of commercial advertising along Kentuckys highways and byways. The effect will be to detract from Kentuckys natural splendor and to adversely affect the choice of Kentucky as a tourism destination.
A 2005 survey conducted in Arizona found that by a margin of 73 percent to 21 percent, citizens opposed laws that would allow electronic billboards on the states highways. When the 21 percent favoring digital signs were then asked if they would still support the signs if they might distract drivers, the opposition to electronic signs grew to 88 percent. The Arizona Public Opinion on Electronic Billboard Survey can be found at www.scenicamerica.org/electronic. The use of electronic multi-message boards will significantly increase the return on investment for the industry by allowing the same location to be marketed as many as 6 or 7 times more than currently (since the messages will change on an 8-second rotation), but for the public, the proposal means more visual distraction and a loss of aesthetic value.
In conclusion, KRC respectfully urges that you direct the Kentucky Transportation Cabinet to withdraw proposed 603 KAR 3:080 and to maintain the prohibition on the use of electronic billboards throughout the Commonwealth. The proposed regulation is contrary to state law, violates our Bonus Agreement with the FHWA, and would likely increase risks of accidents for the motoring public and their passengers, and would detract from the scenic beauty of our Commonwealth.