City Council
Report
City Council Meeting: May 9, 2023
Agenda Item: 5.H
1 of 4
To: Mayor and City Council
From: Edward F King, Director, Department of Transportation, Community Engagement & Customer Experience
Subject: Adoption of a Resolution Revising Policy Governing Advertisements Displayed on the Exterior of City Buses to Comply With Legal Requirements Recommended Action
Staff recommends that the City Council:
1. Adopt a finding of no possibility of significant effect pursuant to Section 15061(b)(3) (Common Sense Exemption) of the California Environmental Quality Act (CEQA) Guidelines.
2. Adopt a Resolution revising the policy governing advertisements displayed on the exterior of City buses to comply with legal requirements.
Summary
In 2016, the City Council adopted advertising guidelines for Big Blue Bus (BBB), a division of the Santa Monica Department of Transportation (DoT), consistent with federal case law on the issue. As more challenges on the legality of bus advertising continue to take place in the courts in a variety of different areas, staff recommends updating the existing guidelines to reflect those changes.
Background
DoT sells advertising space on the exterior panels of its buses to generate revenue to support BBB transit operations. Currently, 91% of the ads are for movies and television programs or for services including legal, education, hospitality, and healthcare. The income from bus advertising is approximately $3 million annually. 2 of 4
DoT’s advertising guidelines are utilized by staff to ensure that advertisements on bus exteriors do not conflict with its mission of providing safe and efficient public transportation. A copy of the existing guidelines is included (Attachment A). The guidelines constitute an advertising policy intended to meet DoT goals, which include but are not limited to maximizing ridership; preventing harm or abuse to passengers and buses; maximizing revenue; maintaining governmental neutrality and avoiding actual or perceived discrimination; and preserving the marketability of advertising space.
Discussion
In 2016, the City Council approved a set of bus advertising guidelines to be consistent with newly developed case law on the issue. The guidelines addressed the following issues: political campaign speech; adult-related products and services, alcohol, firearms, and tobacco, smoking, smoking materials, including electronic smoking or "vaping"; sexual or excretory subject matter; false, misleading, or deceptive; copyright, trademark, or otherwise unlawful; illegal activity; profanity or violence; demeaning or disparaging; harmful or disruptive to transit system; lights, noise and special effects; and unsafe behavior while riding public transit.
Since 2016, courts have provided further relevant case law requiring an update to the guidelines to stay in compliance. While many of the new guidelines (Attachment B) remain the same, there are new issues to be addressed. First, the current guidelines reference American Freedom Defense Initiative v. King County, 796 F.3d 1165 (9th Cir. 2015) which is no longer applicable as newer case law has eliminated the impact of this ruling. The new guidelines also remove the prohibition on “demeaning or disparaging” advertisements, which Courts have deemed unconstitutional because it is not viewpoint neutral. The new guidelines provide more detail on each of the conditions. Courts have allowed discretion on workable standards so additional background information has been added to help City staff and the public better understand advertisement eligibility.
Finally, the new guidelines require disclaimer language on advertisements, indicating the views of the advertiser do not necessarily reflect the views of the City. 3 of 4
The newly revised guidelines do not change the City’s position on advertisements on political issues. The 2016 guidelines prohibited political campaign speech, but otherwise allowed political issue advertisements, and the revised guidelines maintain that status quo. Courts have held that a policy of prohibiting political issue advertisements is generally unconstitutional because such policies place City staff in a position of making viewpoint-based decisions on expression, in violation of the First Amendment.
Adopting the attached resolution (Attachment C) will delegate authority to the Department of Transportation to administratively update guidelines in the future, to promptly address future changes in the law that may affect the guidelines.
Past Council Actions
Meeting Date Description
2/9/2016 (Attachment D) Big Blue Bus Advertising Policy Environmental Review
The revised guidelines are exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) (Common Sense Exemption) of the CEQA Guidelines, which states that CEQA does not apply, where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the recommended action. Staff will return to Council if specific budget actions are required in the future.
4 of 4
Prepared By: David Feinberg, Transit Government Relations Officer Approved Forwarded to Council
Attachments:
A. Attachment A: Current Big Blue Bus Advertising Guidelines B. Attachment B: Proposed Big Blue Bus Advertising Policy C. Attachment C: Proposed Bus Advertising Guidelines Resolution D. Attachment D: Big Blue Bus Advertising Policy 2016 (Web Link)