The U.S. Court of Appeals for the District of Columbia recently affirmed a lower court ruling that a Federal Highway Administration (FHWA) memorandum loosening restrictions for digital billboards along highways did not violate the Administrative Procedure Act (APA).

In 2007, the FHWA issued a memorandum entitled "Guidance on Off-Premise Changeable Message Signs." The memorandum interpreted a prohibition on highway billboards with "flashing, intermittent or moving" lights to permit digital billboards that met certain timing and brightness requirements. The requirements described in the memorandum were based on "certain ranges of acceptability" already adopted by states that allowed digital billboards on highways.

Scenic America, a non-profit organization that "seeks to preserve and improve the visual character of America's communities and countryside," challenged the memorandum arguing that (1) it should have been promulgated using notice-and-comment procedures; and (2) was "contrary to law" in violation of § 706 of the APA.

In Scenic America, Inc. v. U.S. Dep't of Transp., the Court held that Scenic lacked standing to bring its notice-and-comment claim. Specifically, the Court found nothing in the record to establish that vacating the memorandum would redress the injuries of Scenic's members, namely expending resources to combat the proliferation of digital billboards.

The Court did, however, find that Scenic had standing to bring the § 706 claim. After finding that the FHWA memorandum was a reviewable final agency action, the Court affirmed the district court's grant of summary judgment in favor of the agency. The Court rejected Scenic' s argument that the memorandum changed the lighting standard to such an extent that it was no longer "consistent with customary use" established in the Highway Beautification Act, 23 U.S.C. § 131. The Court held that "[a]lthough it might be possible to read the FSA lighting standards to prohibit digital billboards, those standards do not foreclose other interpretations, including the FHWA's here."

Scenic America, Inc. v. U.S. Dep't of Transp., et al., Case No. 14-5195 (D.C. Cir. Sept. 6, 2016).