My advisor at law school some years ago gave me the following advice: If the law is on your side, argue the law. If the facts are on your side, argue the facts. And if neither the law nor the facts are on your side, pound your fist on the table, raise your voice and try to change the subject!

 

I am being reminded of that third option—try to change the subject—when seeing the array of anti-digital sign arguments coming from the planning profession. Let me cite two examples.

 

APA WEBCAST ON DIGITAL SIGNS & BILLBOARDS

First is the American Planning Association-sponsored webcast that took place in October 2010 on the subject of “planning for signs and billboards in a digital age.” The timing of this seminar was wholly ironic, occurring the afternoon of the first day of the NSREC signage research conference that took place in Cincinnati in conjunction with the University of Cincinnati’s School of Planning. 

 

Three presenters discussed digital signs: Eric Damian Kelly, a planner and planning professor at Ball State University; Randal R. Morrison, the California attorney notably associated with political speech and sign issues; and Robin Wolpert, an attorney with the Minneapolis law firm of Greene Espel.

 

This was a strong panel, based on credentials. Kelly was the author of one of the early model sign codes proffered more than a decade ago, and seems sensible and centrist in his views on accommodating new sign technologies. Morrison has a long record of understanding the constitutional issues involved in sign codes. (He tells me, by the way, that he coined the phrase, “sign code shakedown.”) Wolpert, and her law firm colleague, John Baker, work with municipalities on issues such as digital billboards. The firm authored the APA amicus brief filed in the renowned Naser Jewelers federal case that upheld the ban of all electronic message centers in Concord, N.H.

 

With these credible presenters, the conversation in the webcast that day was disappointing, to say the least. The moderator asked Wolpert, “Tell us how the sign industry works?” Her first response: “to get noticed!” She intimated that billboard operators have a “large financial interest” in converting static billboards to digital displays. Another of the panelists made reference to the “unbelievable amount of money at stake” and the “kind of cash flow involved” in conversions from static to digital displays. 

 

ONE PLANNING LAWYER’S ‘CRYSTAL BALL’

The second example is from an article in the November issue of Planning magazine authored by the attorney Lora A. Lucero. She is the editor of the APA publication, Planning & Environmental Law. Her article was a discussion of what she saw as the top 10 trends in planning in the year ahead. Sixth on her trend list was: “digital signs won’t go away.” 

 

After relying on the now standard intonations of possible driver distraction and the need to hang on every word ever written by the consultant Jerry Wachtel, Lucero then noted, “But the sign industry is very profitable, and its representatives are likely to continue to do all they can to oppose local restrictions.” 

 

What, may I ask, is this focus on how much money the “sign industry” is making? Granted, the outdoor advertising industry has a cohesive and well-funded lobbying organization. Granted, too, there is a very small number of very large media companies involved in billboards, both static and digital. But it is incorrect to penalize the entire sign industry with the charge of making a profitable product that is meant to get noticed. 

 

SIGN INDUSTRY HAS TYPICAL DISTRIBUTION OF INCOME

I have spent much of my career in measuring the sign and digital graphics market in the U.S. The companies in our market fit a typical Bell curve: at one end is a small percentage that are very large; at the other end is a small percentage of companies that are extremely small. In the middle are the vast majority of companies, with a median sales volume that is large enough to have employees, pay taxes, and earn a reasonable profit during normal economic times. 

 

Here’s the reality: sign companies are in business to install effective identification—and to earn a profit doing it. Concrete contractors are in business to pave highways—and to earn a profit doing it. Planning consultants are in business to give counsel to municipalities—and to earn a profit doing it. 

 

That otherwise credible representatives of the planning profession focus on how much money is being made in digital signs tells me that they be taking that “third option” I discussed above (try to change the subject.) This attitude may be a tip-off that the underlying sentiment in many communities regarding digital signs is beginning to support the positions of those profitable tax paying sign companies.