July 30th, 2019

Third Circuit Takes Hard Swing at Interchange Prohibition

Citing the First Amendment, a federal appeals court took a hard swing at Pennsylvania’s “Interchange Prohibition” that limits billboards near interchanges. The ruling (Adams v. Pennsylvania Department of Transportation), issued on July 15, 2019, was a victory for Adams Outdoor Advertising. As other states have similar laws, this case is gaining traction in the billboard industry and could influence future arguments made by outdoor advertisers, nationwide.

The Third Circuit Court ruled that elements of the Pennsylvania Outdoor Advertising Control Act on its face raises a serious question of validity under the U.S. Constitution for the reason that the Act restricts the placement of billboards near highway interchanges, but imposes no such limitation for other types of signs. For example, a billboard having a commercial message, but more importantly, a political and/or social expression, is prohibited at an interchange on a federal aid primary highway, but a sign advertising a hotel at that location can be unlimited as to size, height, and location. Even a hotel sign having a size of a million square feet! The Third Circuit affirmed what Adams perceived the Interchange Prohibition as disparate treatment without any basis.

The recent decision handed down by Judge Ambro of the Third Circuit remands the case back to the federal trial court requiring the Pennsylvania Secretary of Transportation to show that the interchange provision does not violate the First Amendment, stating:

“(PennDOT) Secretary Richards bears the burden to justify the restraint it imposes and the exemptions it provides . . . She has not done so on the current record. On remand, she will have that chance.”

Attorneys Victor Cavacini and Kellie Rahl-Heffner worked extensively to reverse the disparity of regulation accorded to signs under the Act. The lawsuit claimed the prohibition violates the U.S. Constitution because it permits some forms of speech over others.

The decision stemmed from Adams’ original application for a PennDOT permit in 2016 to erect a billboard along Route 22 in Hanover Township near the 512 interchange. PennDOT denied the permit application after the permit sat as “pending” for over a year and after Adams filed its lawsuit. The Third Circuit determined that the lack of a deadline for PennDOT to either approve or deny a permit was itself unconstitutional.

This appellate decision is a significant decision in favor of Adams and the billboard industry, which is gaining national attention from outdoor advertising companies from around the country. PennDOT’s Interchange Provision mirrors the federally regulated Highway Beautification Act throughout the country. The Third Circuit decision is an important precedent furthering the importance of the First Amendment of the Bill of Rights as applied to sign regulation.

Victor Cavacini has extensive experience representing billboard companies in zoning applications and litigation matters related to signage location and municipal ordinances. He has specific experience with digital signage and the unique rules and permits required.

Kellie Rahl-Heffner is a member of Gross McGinley’s litigation team, frequently assisting in substantial litigation cases.