AATA Adopts New Advertising Policy

Ann Arbor Transportation Authority special board meeting (Nov. 29, 2012): A pending lawsuit against the AATA – for refusing to allow a “Boycott ‘Israel’ Boycott Apartheid” advertisement to appear on the sides of its buses – provided the context for a special meeting of the board. A unanimous vote to approve changes to the AATA’s ad policy came after board members were briefed by outside legal counsel in a closed session. [.pdf of marked up revised AATA ad policy]

Among other clarifying changes, a key clause that’s been deleted from the policy is one that previously allowed the AATA to disqualify an ad based on “good taste.”  That clause was crucial in the court’s analysis – as part of an initial ruling in the case – that the AATA’s advertising policy was unconstitutional.

The revised policy is meant still to exclude the ad that the AATA rejected, prompting the lawsuit. The change to the AATA advertising policy was characterized at the meeting as bringing the policy into compliance with a ruling from late October of this year made by the 6th Circuit of the U.S. Court of Appeals – involving a different transit advertising case. The AATA, in a recent brief filed with the court in the current lawsuit, has argued that the 6th Circuit ruling provides support for the AATA ad policy’s “scorn and ridicule” clause.

At the Nov. 29 meeting, board chair Charles Griffith also indicated that the AATA hopes the changes to the ad policy would resolve the issues that had been brought against the AATA in connection with the lawsuit. The suit was filed a year ago by Ann Arbor resident Blaine Coleman, who’s being represented by the ACLU.

The case has not yet proceeded to trial, but the court made an initial ruling on Sept. 28 on a motion for a preliminary injunction, finding in favor of Coleman. What the court is currently weighing is the determination of appropriate relief in connection with the preliminary injunction. The court has indicated it’s willing to consider a range of possibilities – from forcing the AATA to place the ad on its buses to allowing the AATA to revise its advertising policy.

A status conference among the parties in the lawsuit is scheduled for Dec. 6. The next regularly scheduled AATA board meeting had been for Dec. 20 – which prompted the special meeting before the status conference. The AATA has argued to the court that the form of injunctive relief that’s appropriate in the case is to allow the AATA to revise its advertising policy. The status conference will now take place in the context of the AATA having already taken the step it’s argued would be appropriate.

The AATA anticipates a net of $120,000 from its advertising program for FY 2013, in a total revenue budget of roughly $32 million.

A second piece of business transacted by the board at the Nov. 29 special meeting was a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, which runs down Packard toward Ypsilanti, and that set Jan. 27, 2013 as a start date for the more frequent service. Two weeks earlier – at the board’s Nov. 15, 2012 meeting – a re-programming of funds necessary to pay for the increased Route #5 service had been authorized by the board. Title VI is the civil rights legislation that in the context of public transportation requires proof that a service change has no adverse effect on disadvantaged populations.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. It’s on the branch that is primarily within the city of Ann Arbor where frequency will be increased – with the result that service on the main trunk will be every 10 minutes.

The Route #5 item was added to the agenda the same day as the Nov. 29 meeting, in an effort to eliminate the need for the board’s regular December meeting – on Dec. 20. The Route #5 service had been the only voting item anticipated for that regular meeting, so the Dec. 20 meeting has now been cancelled. 

AATA Ad Policy

The board decision to revise the AATA’s advertising policy comes in the context of a still-pending lawsuit filed against the AATA for refusing to allow an anti-Israel advertisement to appear on the sides of AATA buses. The proposed ad includes the text, “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. The court made an initial ruling on Sept. 28, 2012 that determined the plaintiff Blaine Coleman, represented by the ACLU, should be granted injunctive relief.

But the court stopped short of deciding the nature of that relief. One option currently being weighed by the court is for the AATA to craft a new advertising policy that does not have the constitutional problems the court has identified. The board’s action at the special meeting on Nov. 29 anticipates a ruling on injunctive relief along those lines; however, the court could still find it appropriate to compel the AATA to immediately place Colelman’s proposed ad on its buses. [See Chronicle coverage of the Sept. 28, 2012 ruling on the lawsuit: "AATA Ad Case: Court Grants ACLU Motion"]

AATA Ad Policy: Preliminary Injunction

The case stemmed from Coleman’s attempt to purchase an advertisement for the sides of AATA buses. The AATA refused to run the ad. [.pdf of image and text of proposed ad] The image appears to stem from an original by Mexican artist José Guadalupe Posada. Last year, on Nov. 28, 2011, the ACLU filed suit on behalf of Coleman. The one substantive ruling on the case has been a preliminary injunction in which the court found in favor of Coleman and the ACLU.

In its initial filing, the ACLU contended that the application of the AATA ad policy to Coleman’s ad, and the AATA’s rejection of the ad under that policy, is a violation of the First Amendment’s guarantee of freedom of speech (count 1). The ACLU further contended that the AATA’s advertising policy generally violates the First Amendment on its face – because the policy is overly broad (count 2). So the case was both an “as-applied” as well as “facial” challenge to the AATA advertising policy.

The standard of review for the preliminary injunction won by the ACLU includes: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by issuing the injunction.

Considering the first of the standards (merit of the claims), the court found in its Sept. 28 ruling that the AATA is in effect operating a public forum with its advertising program, because the “good taste” advertising provision is unconstitutionally vague. The court also concluded that AATA’s “scorn or ridicule” provision is not constitutional as applied – because it’s a content restriction that does not serve a compelling state interest. So the court concluded that the ACLU was likely to succeed on the merits of the claim.

With respect to the other standards, the court rejected the AATA’s argument that Coleman would not suffer irreparable harm. The AATA contended that Coleman had myriad other venues in which to express his views. To that, the court’s response was that the “[d]efendants’ argument proves too much; …” If that argument were to be accepted, the court concluded, it would be almost impossible – given “the ubiquitous opportunities for expression through the Internet and otherwise” – for a First Amendment plaintiff to establish irreparable harm.

With respect to the “public interest” standard, the court found that it’s always in the public interest to prevent a violation of a party’s constitutional rights.

With respect to the “substantial harm to others” standard, the court appeared to see some merit in the AATA’s contention that forcing it to run the ad would impair its ridership and reputation. However, the court saw that argument as affecting the kind of relief that might be granted, not whether some kind of relief should be granted at all.

AATA Ad Policy: Relief

In the court’s decision to grant the motion for a preliminary injunction, it stopped short of making a decision on the nature of the injunctive relief. Coleman had asked for injunctive relief in the form of immediate placement of his ad on the sides of AATA buses – and the court allowed in its decision that: “This is certainly a legitimate relief option.”

But the court also wrote that another option would be to allow the AATA to craft a new advertising policy that does not have the constitutional problems that the court identified in its opinion. So the court asked both parties to file briefs focused exclusively on the question of appropriate relief. Coleman and the ACLU argued that the relief should take the form of the AATA immediately accepting and placing Coleman’s ad on its buses. The AATA argued that it should be allowed to craft a revised policy. The AATA board’s action on Nov. 29 anticipates the possibility that the court would decide to accept the AATA’s argument on injunctive relief.

[.pdf of Oct. 12, 2012 supplemental brief by ACLU on appropriate relief] [.pdf of Oct. 26, 2012 response brief by AATA on appropriate relief] [.pdf of Oct. 30, 2012 additional supplemental brief by ACLU] [.pdf of Nov. 2, 2012 AATA response to ACLU additional supplemental brief] [.pdf of court opinion]

AATA Ad Policy: Text of the New Policy

In the court’s ruling granting the preliminary injunction to Coleman and the ACLU, the court concluded – based on evidence presented by both parties – that Coleman’s ad was rejected based on both the “good taste” and the “scorn or ridicule” standard in the AATA’s advertising policy at the time.

Here’s the marked-up version of the advertising policy with changes that the board adopted [added text in bold italics; deleted text in strike-through]:

Proposed Revised AATA Advertising Policy
A. The AATA, by permitting commercial advertising in or on its vehicles, shelters, informational material, buildings, and benches, does not thereby intend to create a public forum. Further, AATA requires that such advertising comply with specified standards to further the purposes of providing revenue for AATA, increasing ridership, and assuring that AATA riders will be afforded a safe and pleasant environment. AATA reserves the right to approve all advertising, exhibit material, announcements, or any other display and their manner of presentation. All advertising must be in considered in good taste and shall uphold the aesthetic standards as determined by AATA.
B. In order to minimize the chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, advertising in or on AATA vehicles, in AATA shelters, buildings, benches or informational material which does any of the following shall be prohibited:

1.  Contains false, misleading, or deceptive material.
2.  Promotes an illegal activity.
3.  Advocates violence or crime.
4.  Infringes copyright, service mark, title or slogan.
5.  Defames or is likely to hold up to scorn or ridicule a person or group of persons.
6.  States or implies the endorsement of a product or service by AATA.
7.  Supports or opposes the election of any person to office or supports or opposed any ballot proposition. Contains political or political campaign advertising.
8.  Contains material which is obscene, as defined by MCL 752.362 or sexually explicitly, as defined by MCL 722.673, and as such statutes shall be amended or supplemented. Contains advertising that is obscene or pornographic, or in advocacy of imminent lawlessness or violent action.
9.  Promotes alcohol or tobacco products

The 6th Circuit of the U.S. Court of Appeals, in an Oct. 25, 2012 ruling, overturned a district court’s decision to grant a preliminary injunction in a case similar to the one Coleman filed against the AATA. The appeals court found essentially that the advertising policy of the Suburban Mobility Authority for Regional Transportation (SMART) was constitutional. The language in the AATA’s revised policy points (7) and (8) is taken from SMART’s policy. [.pdf of the 6th Circuit Court of Appeals ruling]

If the revised AATA policy were to be applied to Coleman’s advertisement, the ad could likely be excluded based on the revised “political advertising” clause – based on the idea that encouraging people to boycott Israel is to make a political statement. The corresponding clause in force at the time that Coleman’s ad was rejected would not have allowed its rejection, because a call to boycott is not a statement in support of someone’s election or in support of a ballot proposition.

Even if the court rules that the preliminary injunctive relief that’s to be granted is only to compel the AATA to revise its advertising policy – which it has now already done – this would not preclude an eventual outcome to the case in which the advertisement must be placed on AATA buses.

AATA Ad Policy: History of Income

Added after initial publication: Since the AATA’s advertising program began in 2005, through 2012 it’s generated an average of about $88,000 a year. That average is boosted by the second and third years of the program, when the program generated $169,000 and $134,000, respectively. Over the last four years, revenue dropped to a low of $33,000 before climbing back to $81,000 and $70,000 in the last two years. So far this year – from July to November, the ad program has generated about $67,000, which is almost as much as it generated for all of last year.  [.jpg of chart showing AATA advertising income]

Since mid-August, the AATA has had a new vendor for placement of ads on its buses and bus stops – CBS Outdoor Advertising of Lexington, New York. The decision to switch vendors, from Transit Advertising Group (TAG) of Farmington Hills, Mich., was approved by the AATA board at its Aug. 16, 2012 meeting. The AATA board upheld that decision after it was protested by TAG.

According to AATA controller Phil Webb, under the terms of the contract with CBS Outdoor Advertising, the AATA is guaranteed an annual minimum of $100,000 a year.

AATA Ad Policy: Board Discussion

Michael Ford, CEO of the AATA, told the board during his report that the advertising policy was something for which board action was needed. He told them that the outside legal counsel was available to provide support during the closed session that was on the agenda. Ford indicated the action to approve a revised policy was being requested in advance of the Dec. 6 status conference the following week with the judge and the opposing counsel.

The board’s roll call vote to go into closed session under the Michigan Open Meetings Act was unanimous. Unlike some public bodies that conduct their closed sessions by retreating to a different venue, when the AATA board meets at its headquarters building on South Industrial, it doesn’t have a convenient alternate space. So the audience is asked to leave the boardroom. Board chair Charles Griffith made an effort to soften the request: “I hate to do this to all our fine guests.”

When the board came back into open session, there was one amendment proposed to the resolution that enacted the revised advertising policy. The amendment tied the rationale for the change to the 6th Circuit Court of Appeals decision. Sue Gott proposed the addition of the phrase “to comply with current case law” to one of the “whereas” clauses:

Whereas, the board now desires to update the advertising policy, to comply with current case law which has been approved by legal counsel;

That addition was made on a friendly basis, and the board did not vote separately on it.

Griffith indicated that the board had heard from the attorneys about why the policy is recommended – to address the issues that were brought forward, responding to the judge’s request of the parties. Griffith said he thinks this change in policy would address “the issues that have been brought against us” and hoped that the AATA would be “in good standing moving forward” as other advertising requests are made.

Jesse Bernstein added that the revised policy provides clarification based on the 6th Circuit Court of Appeals decision. Roger Kerson noted that the 6th Circuit case involved a different transit authority, but the changes to the AATA’s policy make it one that that was accepted by that court as lawful. Kerson added that the AATA wants to operate within the law.

Outcome: The board voted unanimously to approve the changes to the AATA advertising policy.

Route #5 Improvements

At its Nov. 29 special meeting, the board was asked to approve a resolution that acknowledged the Title VI requirements related to the AATA’s planned service improvements on Route #5, and that set Jan. 27, 2013 as a start date for the more frequent service. As it relates to public transportation, Title VI of the Civil Rights Act of 1964 requires that changes to transit service have no disparate impact on disadvantaged populations.

Route #5 Improvements: Background

At the its Nov. 15, 2012 meeting, the AATA board had approved a funding resolution to support increased frequency on Route #5, which runs down Packard toward Ypsilanti. The funding took the form of a re-programming of funds from the AATA’s AirRide service, which is covering its costs and generating more passenger revenue than forecast. AirRide service will not be affected by the board’s move.

Route #5 has two branches – between downtown Ann Arbor and downtown Ypsilanti, and between downtown Ann Arbor and the Carpenter Road Meijer. The current service level runs buses every 15 minutes on the main trunk of the two branches. The board’s vote will result in an increase in service on the second branch, which is primarily within Ann Arbor, so that service on the main trunk would be every 10 minutes.

The annual cost of the increased frequency is $156,700. Pro-rated from the end of January through the end of September 2013, which is the end of the AATA’s fiscal year, the cost is $90,700. The vote at the Nov. 15 meeting to allocate the $90,700 came with dissent from board members Jesse Bernstein and Roger Kerson, who supported the need for increased service, but were inclined to follow the timetable recommended by AATA staff. That timeline would have involved a more comprehensive financial assessment of other services in the coming months and possible implementation of increased Route #5 frequency at the end of April.

During his report to the board at the start of the Nov. 29 meeting, CEO Michael Ford told the board that AATA was moving forward with board’s support on Route #5 improvements. The point of the resolution at the Nov. 29 meeting, Ford said, was to make sure the board is aware of the Title VI requirements – which ensure that there’s no disenfranchising of disadvantaged populations. That information had not been available at the previous meeting, Ford noted, but it was ready now.

Route #5 Improvements: Board, Staff Discussion

Asked to elaborate on the resolution, Chris White – AATA manager of service development – noted that the board had now been provided with the documentation that had been described at the board’s previous meeting. It included public input gathered on the changes, which White called uniformly positive.

In addition, White said, the Federal Transit Authority had promulgated a new circular on Title VI requirements, which disallows discrimination based on race. He described how the new circular did not really change what the compliance rules are, but rather how compliance is to be demonstrated. The analysis showing no disparate impact on minority populations isn’t required to be complete at this point, White said, but it’s required that the board specifically acknowledge receiving information about the analysis.

In summarizing the analysis, White noted that it’s a service increase, which is not typically what the Title VI regulations are concerned with. Subsequent back-and-forth between White and Roger Kerson drew out the fact that typically Title VI compliance is important when there’s a fare increase or a service reduction.

White then walked the board through four maps, two each for census tracts that have higher minority populations and lower incomes. White noted that there’s some overlap but pointed out that the areas for those categories are very different.

White pointed out that Route #5 goes through many areas that are high minority and low income. White reiterated that the analysis is not yet complete – and it is not required to be at this point – but said there would be no adverse affect on minority or low-income populations, because what’s being proposed is a service increase.

Outcome: The board voted unanimously to approve the resolution adopting the revised service for Route #5 and setting a start date of Jan. 27, 2013.

December Board Meeting

After adjournment of the meeting, a brief discussion ensued between staff and board members about the need for December’s regular monthly board meeting. CEO Michael Ford indicated that the Route #5 item had been the only item slated for that meeting.

Jesse Bernstein indicated that if the Dec. 20 meeting were cancelled, he still wanted to make sure the board was kept up to date on possible developments on regional transit authority (RTA) legislation that the state legislature might enact in the lame duck session. State legislators have been considering a regional transit authority (RTA) for southeast Michigan, including the city of Detroit and the counties of Washtenaw, Wayne, Oakland and Macomb. The Detroit News and other media reported that the state Senate passed RTA legislation on Nov. 27, but it has not yet been passed in the House. The Washtenaw County board of commissioners voted earlier this month to rescind its previous support of the RTA as currently proposed, though the county board’s chair – Conan Smith – has been a strong advocate for the effort.

On Nov. 30, the AATA announced that the Dec. 20 meeting was cancelled.

Present: Charles Griffith, Jesse Bernstein, Eli Cooper, Sue Gott, Roger Kerson, Anya Dale.

Absent: David Nacht.

Next regular meeting: Thursday, Jan. 17, 2013 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle event listing to confirm date]

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