Developing and Implementing a Transit Advertising Policy (2010)

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Legal Research Digest 33 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration august 2010 TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES Developing anD implementing a transit aDvertising policy This report was prepared under TCRp project J-5, “Legal aspects of Transit and intermodal Transportation programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Lew R.C. Bricker, esq., Ryan B. Jacobsen, esq., and Colin p. gainer, esq., smithamundsen LLC. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. the problem and its solution The nation’s 6,000 plus transit agencies need to have access to a program that can provide authoritatively researched, specific, limited-scope studies of legal is- sues and problems having national significance and application to their business. Some transit programs involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit-equipment and operations guidelines, FTA fi- nancing initiatives, private-sector programs, and labor or environmental standards relating to transit opera- tions. Also, much of the information that is needed by transit attorneys to address legal concerns is scattered and fragmented. Consequently, it would be helpful to the transit lawyer to have well-resourced and well- documented reports on specific legal topics available to the transit legal community. The Legal Research Digests (LRDs) are developed to assist transit attorneys in dealing with the myriad of initiatives and problems associated with transit start-up and operations, as well as with day-to-day le- gal work. The LRDs address such issues as eminent domain, civil rights, constitutional rights, contract- ing, environmental concerns, labor, procurement, risk management, security, tort liability, and zoning. The transit legal research, when conducted through the TRB’s legal studies process, either collects primary data that generally are not available elsewhere or per- forms analysis of existing literature. applications The primary goal of any transit system is to effective- ly and efficiently provide service to those in need of transportation. Advertising can help serve that goal. To augment revenue, public transit systems often lease advertising space or license others to sell adver- tising space. Buses, trains, and other transit facilities offer high-visibility locations for traditional advertis- ing such as signs and billboards. Recent advances in technology are making electronic video and audio ad- vertising possible as well. While increased revenue from advertising can be attractive, transit systems have other, sometimes con- flicting, priorities. There may be a concern that too much advertising will weaken the system’s visual im- age. Transit systems reasonably want advertising to be tasteful, visually appealing, and not offensive to customers and stakeholders. As a result, transit sys- tems often have policies limiting the locations where advertising will be permitted. Such policies are gener- ally not controversial. However, controversy is likely to arise when transit systems do control content. Such control may result in challenges. Although transit systems are increasingly expected to be more entrepreneurial, as governmental entities they have constitutional obligations to respect and protect freedom of speech and to provide equality of treatment. To the extent that a transit system’s facility is viewed as a public forum, the system’s ability to moderate expressive activity may be limited. The goal of this digest is to provide information pertaining to transit systems’ use of various strategies to implement advertising content policies that fur- ther the system’s reasonable interests and protect free speech rights. This digest should be useful to transit administrators, policy staff, program developers, and attorneys. responsible senior program officer: gwen chisholm smith