Antitrust Law Daily Wrap Up, ADVERTISING—Ark. App.: Agency decision to deny digital billboard application upheld, (Dec 21, 2015)

By Linda O’Brien, J.D., LL.M.

The state highway department’s decision to deny the application of a billboard company to convert an existing static billboard to a digital display was not unreasonable or arbitrary, the Arkansas Appellate Court in Little Rock has held. Thus, the department’s decision was affirmed (Arkansas State Highway & Transportation Department v. RAM Outdoor Advertising, December 16, 2015, Virden, B.).

RAM Outdoor Advertising received a conditional-use permit from the City of Fort Smith to convert an existing billboard along Interstate Highway 540 from a static display to a digital display. RAM then applied for a permit from the Arkansas State Highway & Transportation Department (AHTD) to convert the sign to an electronic message device (EMD). After the AHTD denied the application, an administrative hearing was held before the Arkansas State Highway Commission, which upheld the Department’s decision. The trial court reversed the Commission’s decision and the AHTD appealed.

The AHTD denied RAM’s application because (1) the sign was not located in a commercial/industrial area; (2) the property was zoned industrial, although there was no industrial development of the property; and (3) the property was a forested tract where there was no development.

The appellate court determined that, given the deference provided to agencies in the interpretation of their regulations, there was substantial evidence to support the Department’s decision to deny RAM’s application. There was testimony that the activity conducted on the property was not industrial according to the regulations and the AHTD was not bound by the City of Fort Smith’s decision to designate the proposed site as zoned for industrial purposes.

Furthermore, there was evidence that the activity on the proposed site was transitory or temporary in nature and that activity was not visible from the Interstate. Thus, the Department’s decision could not be classified as unreasonable or arbitrary.

The case is No. CV-15-404.

Attorneys: Rita S. Looney, Arkansas Chief Legal Counsel, for Arkansas State Highway & Transportation Department. Troy Gaston (Walters, Gaston, Allison & Parker) for RAM Outdoor Advertising.

Companies: RAM Outdoor Advertising

Cases: Advertising ArkansasNews