Do Digital Billboards Distract Drivers?

Despite an effort in 2009 to impose a two-year ban on the construction of new digital billboards in Orange County, Los Angeles, and throughout California, there is currently no state law prohibiting these billboards from appearing up and down the sides of highways. Extensive controversy exists surrounding the potential for digital billboards to distract drivers and cause car accidents.

A Federal Highway Administration study that was supposed to clear up the issue has only created additional disagreement amid claims that the study was botched, explains a lawyer.

Activities that can distract motorists from the primary task of driving and thereby compromise safety range from texting or talking on a cell phone, eating or drinking, to looking at accidents or advertisements alongside the road. Digital billboards, a recent trend in roadside advertising, have garnered widespread criticism from safety advocates and lawyers in Orange County, Los Angeles, and throughout California who claim they pose a significant distraction to drivers and, as a consequence, contribute to car accidents. However, determining the extent to which the billboards pose a safety risk has proven challenging, with much controversy surrounding research into the matter.

Among the leading causes of motor vehicle accidents, driver distraction accounts for 80 percent of crashes and 65 percent of near-crashes, according to a study released by the National Highway Traffic Safety Administration (NHTSA) and the Virginia Tech Transportation Institute (VTTI). In 2010 alone, distracted driving claimed the lives of 5,474 people and injured another 448,000.

After the release of a Federal Highway Administration (FHWA) memo indicating that digital billboards were permitted under the Highway Beautification Act (HBA), digital advertising proliferated alongside the nation’s roads and highways. While research indicated that a range of just .75 to 2 seconds of drivers’ eyes distracted from the road increased the risk of an accident, studies conducted by VTTI and the American Association of State Highway and Transportation Officials produced conflicting results. In response, the FHWA launched its own study, which has ultimately resulted in more controversy than clarification concerning the safety of the billboards.

Questions about potential bias in the FHWA billboard study arose early on, when Science Applications Inc. hired a Berkeley traffic safety expert named Jerome Watchel. Watchel had previously reviewed two studies sponsored by the billboard industry that had claimed that the digital billboards were safe and had determined that the studies were both biased and misleading. Both billboard industry groups and five congressmen signed a joint letter to the Secretary of Transportation indicating that Watchel's hiring could potentially taint the FHWA study's legitimacy; however, those congressmen were reported to have received campaign contributions from billboard industry executives totaling in the amount of $26,484 since 2006.

As it turns out, the billboard industry need not have worried. Watchel's role was very limited and, by the time protests began, he was essentially no longer involved in the study at all. Further, the limited information that has been released so far from the study indicates that there is no correlation between digital billboards and an increased risk of accidents, giving industry executive the results for which they were hoping.

The official results of the study were submitted in September of 2010 and were circulated internally, with a planned release date to the public of December 2010. Unfortunately, however, the official results remain unreleased and shrouded in mystery. This is true despite a Freedom of Information Request from an industry attorney in 2009. The Freedom of Information Act is a federal law codified in U.S.C. section 552 that entitles the public to the full or partial disclosure of government information upon request.

Fair Warning indicates that the results were not released officially because the study was likely botched. Two experts who reviewed the unreleased draft criticized the study, suggesting that the data was suspect and that it was very unlikely that the reported glance times of 1/10 of a second were accurate. The data collected also differed from previous studies, lending further credence to the idea that a mistake was made in the collection of the data.

The FHWA is not releasing information on what they do plan to do with the data, or on whether it can be used or salvaged, and they have refused to answer questions. Safety advocates and lawyers in Orange County, Los Angeles, and throughout California waiting on reports from this study to make a determination as to whether the billboards increase the risk of car accidents will, therefore, simply have to wait.

While a concrete answer remains to be seen regarding whether digital billboards are in fact dangerous, there is one important fact to consider: these billboards come at significant cost to the advertiser. In fact, a digital billboard may cost as much as $250,000 to $300,000 to produce, as compared to $5,000 to $50,000 for a traditional billboard. If the billboards did not attract attention and cause drivers in California and throughout the U.S. to look over and take note of the product—why would advertisers spend such a premium for them?

Practicing with the Orange County, California-based law firm Allen, Flatt, Ballidis, and Leslie for more than 25 years, author and attorney James Ballidis has written extensively on transportation safety, including car accidents and the injury claims process.

Copyright Allen, Flatt, Ballidis & Leslie, Inc
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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