Commercial highway advertising may be coming back

If federal and state officials have their way, Nevadans may soon see Wal-Mart or Microsoft logos on highway slopes around their state.

In its waning days, the Bush administration has given preliminary approval to floral billboards on Nevada highways. The Gibbons administration, without informing the public, quietly asked for approval in a nine-page application in October.

Though generally known as “vegetative” billboards, the term floral comes closer to the mark. They are billboards, usually corporate logos, made of flowers planted along roads. Probably the best known floral billboard is the flowery head of Mickey Mouse on a slope below the railroad station near the entrance to Disneyland in Anaheim.

On Oct. 10, Nevada Transportation Department director Susan Martinovich sent an application to the Federal Highway Administration (FHWA) asking that the state be given permission for what Martinovich euphemistically called “enhancements"—commercial advertising. Much of the application was filled with such bureaucratic verbiage—"content sensitive designs through aesthetic treatments on existing interchanges,” that kind of thing.

The billboards would initially be placed “along the Interstate 15 corridor within Clark County and along the Interstate 80 corridor from the California/Nevada state line to [the] Washoe County line” to the east.

“We believe that auctioning the aesthetic rights to an interchange will provide a positive impact on the traveling public by providing visual relief, welcome visitors, and contribute to our tourist-based economy,” Martinovich wrote in her cover letter with the application.

The Gibbons administration submitted the application without public notice or hearings or informing state legislators who must approve it.

On Dec. 5, FHWA deputy administrator Kerry O’Hare sent Martinovich a letter approving the project, subject to compliance with several conditions.

The proposal has drawn quick opposition from scenic preservationists at national and local levels.

Doug Smith of Scenic Nevada disagreed with Martinovich’s claim that the proposal would aid tourism.

“I don’t believe that the scenic highways we have running throughout our state should have commercial signs on them, whether landscaping or whatever,” he said. “That was one of the provisions of the Highway Beautification Act. … It’s counterproductive to our state. We spend a lot of money publicizing our scenic beauty to get tourists to come here and then we compromise that message with commercial signage.”

Scenic America, a District of Columbia lobby group, calls floral billboards an “egregious slap at the legacy of Lady Bird Johnson,” the first lady who won enactment of legislation curbing commercial messages on federal highway rights of way.

The Nevada proposal, says Scenic America director Kevin Fry, would be “a Pandora’s Box … and it will be impossible to prevent other states from asserting the same privilege to break the laws and subvert the rules regarding commercialization and signage on federal roads. Our highways will never be the same if this project, no matter how limited it may seem, breaks down the barriers to explicit commercialization that have been in place for half a century.”

Scenic America has tangled with floral billboards legislation before, in December 2007 when it opposed an amendment proposed by U.S. Sen. Harry Reid of Nevada. At that time, Fry posted a message on Daily Kos that took Reid sharply to task:

“Daily Kos denizens may not know that Harry Reid considers himself ‘Mr. Billboard.’ He is the strongest advocate for the interests of the billboard lobby in the Congress. This is an industry, incidentally, dominated by three giant and hugely powerful companies: Clear Channel, CBS and Lamar Advertising. Three times in the past year and a half he [Reid] has tried to sneak language into war and emergency supplemental appropriations that would have undermined a key provision of the Highway Beautification Act. … Three times he has been stopped, mostly due to the efforts of Scenic America and national public outcry. But now ‘Mr. Billboard’ is back, and once again he is trying to do a favor for his billboard buddies. What makes this case particularly heinous and perverse is that he is using flowers to do it.”

Reid’s office was asked for comment on the Scenic America charges but did not respond. However, it did provide a cautious semi-endorsement of the Gibbons plan. “Senator Reid supports public-private partnerships where beneficial and appropriate for the government and the taxpayer,” said Reid spokesperson Jon Summers in a prepared statement. “The proposal by the Nevada Department of Transportation is an interesting one and worth exploring further.”

The Reid effort at federal legislation failed. But if it failed, how are the Gibbons and Bush administrations trying to make it happen in Nevada? Simple—they are setting aside the law.

Under federal law, almost nothing in the Gibbons proposal is legal. So NDOT is asking that the federal law be “waived,” much the way the Bush administration has ignored laws involving the Iraq war or with presidential “signing statements.”

Indeed, a lot of the bureaucratese in Martinovich’s original proposal is designed to address the uncomfortable fact that the Nevada proposal is illegal under federal law—and also under Nevada law, which closely reflects the federal Highway Beautification Act. Martinovich refers to these violations of laws as “waivers” or “exceptions.”

“An exception to the federal laws to allow the display of trade names, brand names, trademarks, logos, or other similar devices used to identify particular products, services, or companies would be the impetus for such an exception to our state laws.”

The Bush administration originated this technique, called SEP-15 for “Special Experimental Project No. 15.” One major problem with SEP-15 is that there are substantial doubts about whether it is legal, since a presidential administration has no authority to violate federal statutes in the absence of action by Congress. In fact, it is uncertain whether even the Bush administration originally intended SEP-15 to be used in this fashion. The little-used program has not yet been challenged in court.

“They are asking for a waiver of all the laws they want to break under the auspices of a program called SEP-15, which is a special experimental program that is supposed to encourage innovative public-private partnerships in highway construction projects,” Fry said. “The SEP-15 program allows states to violate Title 23 of the U.S. Code, which includes the highway laws, but it was never designed for this sort of thing, at least in our view.”

What particularly concerns Fry is that at the same time the proposal is going forward without public notice in Nevada, an even more ambitious proposal is being floated in California by the same businessman who supported Reid’s legislation, and Fry suspects they are linked.

“This proposal—and the California proposal, which is even worse—will undermine the fundamental principle that prohibits the commercialization of federal roads,” Fry said of existing federal law. “In California, for example, they want to turn over the state’s official electronic highway signs, the ones that warn of traffic accidents or hazardous conditions, to Clear Channel in order to convert them into digital billboards carrying ads. It’s the same principle—until now, you cannot put advertising on the right-of-way itself, even if the advertising is made out of flowers and plants. If Nevada, and California, get away with this then there is no reason not to let states fully commercialize the roadways, which we believe would be a travesty.”

Scenic Nevada’s Smith said, “Where you have commercial signage competing with things like the Amber alert signs, it creates competing clutter.”