BEFORE THE transportation COMMISSION
OF THE STATE OF MONTANA
In the matter of the adoption of New Rule I and amendment of ARM 18.6.202 pertaining to Outdoor Advertising Control
NOTICE OF ADOPTION AND AMENDMENT
TO: All Concerned Persons
1. On July 7, 2017, the Transportation Commission (commission) and the Department of Transportation (department) published MAR Notice No. 18-164 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 971 of the 2017 Montana Administrative Register, Issue Number 13.
2. The commission and the department have adopted New Rule I (18.6.236) as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
NEW RULE I (18.6.236) ADVERTISING ON TRANSIT SHELTERS AND BENCHES (1) through (7) remain as proposed.
(8) Spacing requirements for a transit advertising permit include:
(a) permits must be located at least 500 feet from another transit advertising permit, on the same side of the controlled route, unless the applicant justifies a lesser distance, which must be approved by the department's outdoor advertising control program; and
(b) through (11) remain as proposed.
(12) Existing shelter or bench advertising must comply with this rule within one year, or before
[effective date of New Rule I] September 9, 2018, or the advertising will be deemed illegal.
AUTH: 75-15-121, MCA
IMP: 75-15-111, 75-15-112, 75-15-113, MCA
3. The commission and the department have amended ARM 18.6.202 as proposed.
4. The commission and the department have thoroughly considered the comments received. A summary of the comments received and the commission's and department's responses are as follows:
COMMENT #1: One comment was received stating transit systems are struggling financially. The comment stated the inspection fee will be $150, but New Rule I did not state what the "advertising fee" might be. The comment requested this fee be kept low.
RESPONSE: The commission and department note the standard inspection fee for all outdoor advertising permits is $150 per application. New Rule I(2)(d) allows a qualified applicant to submit multiple applications simultaneously and only one inspection fee will be charged for all application locations within the same applicant's jurisdictional area, rather than a separate $150 fee for each shelter or bench sign location. This "combination" inspection fee was designed to save money for local government and transit agency applicants. The commission and department note there is also a $10 initial permit fee for each transit advertising permit, but the department does not charge an "advertising fee" for a transit advertising permit.
COMMENT #2: One comment was received stating New Rule I(6) which states the location of advertising on a shelter wall should be changed. The comment stated since most shelters run parallel with the road, this rule basically makes the advertising opportunity less than optimal. The comment stated the rule would eliminate use of the larger back panel of the shelter, and would only allow exterior use of the panel facing away from traffic. The comment stated this placement would make it impossible to sell as drivers will not look into their rear-view mirrors to read an advertisement.
RESPONSE: The commission and department examined transit shelter advertising from around the U.S., and found the panel placement described in New Rule I to be the standard placement. Other states which allow shelter advertising have not found the placement to discourage advertisers. The panel placement is also limited due to safety concerns, as transit authorities did not want advertising on the panel facing traffic, as this may block the view into the shelter, and prohibit bus drivers from seeing whether passengers are occupying the shelter. The placement proposed in (6) will also allow control of aesthetics along controlled routes, and help alleviate "sign clutter."
COMMENT #3: Three comments were received stating New Rule I(8)(a) requiring transit advertising shelters or benches to be located at least 500 feet from each other on the same side of the controlled route should be changed. A comment stated there may be situations in which a transit agency may determine the riding public would benefit from shelters that are located closer than 500 feet from one another. A comment stated 500 feet may be at another intersection. The comments requested New Rule I be amended to allow requests for a shelter closer than 500 feet to another shelter when it is in the best interests of the traveling public, or when the next intersection is less than 500 feet.
RESPONSE: The commission and department note New Rule I addresses advertising on shelters or benches, not shelter or bench placement itself. Shelters may be placed in right-of-way locations deemed safe by issuance of an encroachment permit. The commission and department agree with the comment that transit advertising permits on shelters with advertising may need some flexibility in placement, due to local street configurations. The commission and department will amend the rule as shown above to allow an applicant to justify a lesser distance for advertising permits on shelters, which exception must be approved by the department's outdoor advertising control program.
COMMENT #4: Two comments were received stating New Rule I will prevent companies from investing in future transit shelters, because the investment will be at the mercy of a third party such as a City or County Commission, or a transit district. A comment stated many states allow transit shelter providers to operate independently, with a local company assuming all liability, capital investment and long-term expense. A comment stated the rule as written precludes investors from constructing and maintaining shelters, and will leave taxpayers to pick up the bill instead. A comment stated private parties should continue to be responsible for construction and maintenance of the shelters, which would save transit authorities and agencies time and money.
RESPONSE: The commission and department note New Rule I does not address the investment in, or ownership of transit shelters or benches, but rather offers the ability to advertise on the shelters or benches, when a transit advertising permit is obtained. New Rule I also does not address payments for construction or maintenance of shelters, whether by taxpayers or otherwise, but instead allows local control over these questions. The local transit agency or local government will make its own decision on shelter placement and ownership issues, whether through an independent operator or its own means, as has always been the case. The local transit agency or government must only apply for the transit advertising permit if advertising is desired on a shelter, to show evidence the shelter and its advertising is being used for the public good, as is required by federal regulations.
COMMENT #5: Two comments were received stating MDT engineers and maintenance chiefs have provided an effective level of oversight for the last decade. The comment stated the engineers examine an encroachment permit application for potential traffic concerns, and to verify the stop is on a transit route, usually visiting the site at least once. A comment stated that addition of a paragraph on the encroachment permit explaining the need for the shelter and listing its specifications could easily address MDT's concerns about a particular shelter. The comments requested grandfathering of existing shelters as a "customary courtesy" afforded businesses that operate in good faith until laws are changed by the State.
RESPONSE: The commission and department do not agree the existing process of encroachment permit issuance by MDT Maintenance staff would "address MDT's concerns about a particular shelter." The commission and department agree MDT Maintenance must evaluate the safety of shelter or bench placement within the right-of-way, and issue an encroachment permit, as will continue to be required by New Rule I. The commission and department note, however, the advertising to be placed on a shelter or bench is regulated under different statutes and rules, and must show right-of-way use is for the public good to meet federal standards for non-highway use of the right-of-way. New Rule I's transit advertising permit will therefore address both safety and public good advertising requirements. Grandfathering of existing shelters with advertising would not address the current illegal status of this prohibited advertising within the right-of-way.
COMMENT #6: One comment was received stating the proposed rules do not address retained ownership of each shelter. The comment stated this ambiguity frustrates the purposes the rule proposes to support. The comment stated this impedes private investment instead of encouraging it. The comment stated no business can afford to invest in a project that it may or may not retain ownership of in the future.
RESPONSE: See response to Comment #4 above.
COMMENT #7: One comment was received stating the transit advertising permit required by New Rule I cannot be obtained by a private party, but must be obtained by a transit or governmental authority. The comment stated this process would be a waste of time and money for those agencies when they will be subcontracting that work out to a third party private entity anyway. The comment stated the transit advertising permits should be available to private parties.
RESPONSE: New Rule I will require a transit agency or local government to obtain the transit advertising permit to meet the federal regulations which only allow non-highway use of the right-of-way (e.g., shelters with advertising) if the use is for the public good. By restricting the transit advertising permit to a transit agency or local government applicant which runs a transit system that benefits the public, the commission and department are able to comply with the federal requirement on non-highway uses of the right-of-way.
/s/ Carol Grell Morris /s/ Michael T. Tooley
Carol Grell Morris Michael T. Tooley
Rule Reviewer Director
Department of Transportation
/s/ Barb Skelton
Certified to the Secretary of State August 28, 2017.