• by Erik Sass  @eriksass1, March 23, 2009

After much grandstanding and fulminating about a "plague" of out-of-home advertising, the Los Angeles Planning Commission was unable to agree on revisions to a law regulating billboards last week, deadlocking with a 4-3 split (five votes are needed to send the law to the LA City Council for approval).

At first glance this may seem like good news for billboard advertising companies, but it's just the opposite: the three naysayers spiked the proposed revisions because they felt they weren't strict enough, suggesting that an even more stringent version is in the works.

The law under consideration was originally passed in 2002 in response to a wave of new billboard advertising around the city, including a growing proportion of digital signage, which critics singled out as especially unsightly and dangerous. Since then the law has faced numerous legal challenges on First Amendment grounds, leading to a legal settlement in 2006 with CBS Outdoor and Clear Channel outdoor that allowed the companies to install 800 new digital signs in return for not challenging the law's constitutionality.

This compromise, however, proved unsatisfactory all around: on one side, outdoor advertising opponents said it rendered the law toothless, while smaller outdoor advertising companies objected to being excluded.

Outdoor advertising came under renewed attack in October 2008 when residents of LA's Silver Lake neighborhood protested Clear Channel's conversion of a traditional billboard to digital display. At the same time, several out-of-home advertising companies that specialize in "super graphics"--giant vinyl signs that adhere to the side of a building--have challenged the law's constitutionality, pointing out that loopholes allow the city itself to use the same kind of advertising.

On the defensive on two fronts, in November the LA City Council instituted a temporary three-month moratorium on new signage to allow it to revise the 2003 law so it can withstand constitutional challenges.

This is where the council deadlocked. Seeking to make the revised law sturdy enough to hold up in court, dissident commissioners objected to provisions that would allow the City Council to approve new signs in up to 21 special districts (some of which already have a lot of billboard advertising) including Chinatown, Hollywood, Westwood, Universal City, and Warner Center. Per this provision, the Council would decide, case-by-case, whether a particular district can get new signs. The councilors, however, are charged with determining that new signage would complement the neighborhood's specific "theme or character."

Just what constitutes a district's "theme or character" hasn't been defined--and this does not promise to be an easy task, as even lifelong fans of Los Angeles readily admit the "theme or character" of most neighborhoods is post-modern pastiche. Getting approval for new signage would be especially daunting, considering that it requires "multiple public hearings before the City Planning Commission, Planning and Land Use Management Committee... and finally the full City Council."

In addition, opponents of outdoor signage warn that these kind of one-off legal provisions--like the loopholes allowing municipal super-graphics--will open the law to court challenges contesting its constitutionality.

By allowing some kinds of signs in some circumstances, depending on the opinion of various elected and appointed officials, they fear the law gives the appearance of arbitrary regulation of public speech by the government, which could easily result in it being overturned.

The Planning Commission will return to the matter again next week; however, if they don't agree to a revised version of the law, even more radical proposals are in the offing. Five out of six candidates in a runoff for a vacant seat in the City Council's 5th District are promising to take a harder line against outdoor advertising, with some advocating a total ban on new outdoor advertising surfaces. They will be emboldened by recent legal decisions: in January the U.S. 9th Circuit Court of Appeals upheld the city's 2002 ban.

Specifically, the court found that the ban did not violate the First Amendment right to free speech, reversing the decision of lower courts. The plaintiff, MetroLights, had challenged the provision against off-site advertising, in which a building surface is used to advertise a product not sold there.