ADVERTISING POLICIES AND GUIDELINES. ACI-NA Business of Airports Conference April 26, 2017

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1 1 ADVERTISING POLICIES AND GUIDELINES ACI-NA Business of Airports Conference April 26, 2017

2 FACILITATORS Faith Quilling, Senior Director, Development Clear Channel Airports Shauna Forsythe, Director of Business Development Lamar Alliance Airport Advertising Amy Gonzalez, General Counsel San Diego County Regional Airport Authority David Saleme A.A.E., Senior Manager, Business Development Columbus Regional Airport Authority 2

3 POLICY OVERVIEW First Amendment U.S. Constitution California Constitution Challenges to Airport Advertising Policies Different Types of Airport Advertising Policies Commercial only Other 3

4 4 THE FIRST AMENDMENT AT AIRPORTS U.S. CONSTITUTION. Amend. 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. CALIFORNIA CONSTITUTION. Art. 1, Sec. 2: (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

5 5 REGULATIONS AND RESTRICTIONS Airports Often Seek to Regulate or Have Regulations: Soliciting Distributing leaflets News racks in terminals Access to the press Protests, parades, demonstrations and marches Union strikes, secondary boycotts and employee demonstrations Employee use of airport web pages, Facebook, Twitter accounts and Photography and videotaping Commercial advertising Employee speech Permitting Uses in Airport Terminals Holiday and religious decorations or displays Chapels, meditation rooms, and religious reading rooms

6 6 FREEDOM OF SPEECH The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. Under the First Amendment, the Supreme Court has held: Airports must provide substantial justification when they attempt to interfere with the right of free speech or to regulate the content of the speech, but airports have wider latitude when their legislation or regulation is contentneutral. Airports may prohibit some speech that may cause a breach of the peace or violence. Airports must recognize that free speech includes other mediums of expression that communicate a message. The level of protection speech receives depends on the forum in which it takes place.

7 FREE SPEECH AND ADVERTISING Advertising concession contracts are common at airports Most airports have an advertising policy Most airport advertising concessionaires have an advertising policy San Diego s former advertising policy stated: Advertising displays shall be in good taste, noncontroversial, and maintained in such manner as not to interfere with ordinary Airport operations and to be as informational as possible. 7

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9 PETA V. SAN AND JC DECAUX NA PETA contacts Authority s advertising concessionaire (JCDecaux) asking to run an ad in the airport s terminal concerning Seaworld. JC Decaux rejects the ad saying it does not conform to JCDecaux s internal ad policies. The main reason: Ad was disparging and demeaning of Seaworld. When asked for a copy, JCDecaux s legal counsel tells PETA its ad policies are internal. PETA writes JCDecaux and Authority saying the refusal is unconstitutional in violation of the 1st Amendment. PETA points out ads posted at the Airport include: Earth Justice, Girl Scouts, Rotary Club, World Wildlife Fund, Nature Conservancy, some with political messages. JC Decaux refuses to run PETA s ad. 9

10 PETA V. SAN AND JC DECAUX NA ACLU representing PETA sues in federal court for declarative & injunctive relief alleging violations of the U.S. Const., 1st Amendment (via 14th Amd.) and Cal. Const. Art. I, Sec. 2 & 7 and seeking damages under 42 U.S.C Alleges discrimination on the basis of content or viewpoint. Authority tenders its defense to JCDecaux per the concession contract indemnity clause. JCDecaux accepts the tender. Authority informs JCDecaux it has no problem with the ad. Settlement discussions result in JCDecaux agreeing to run the ad. Case settled for unspecified amount and ultimately dismissed. 10

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12 12 LESSONS LEARNED Have a well written, defensible advertising policy. Require an indemnity clause in your concession contract. Be careful when accepting advertising copy as it may set a precedent regarding future ads in your forum. Engage General Counsel when approving advertising.

13 SAN DIEGO S CURRENT AD POLICY Commercial Only Policy (1) Advertising contracts shall be negotiated for the purpose of increasing airport revenues. (2) The subject matter for all advertising materials displayed on Authority property shall be limited to speech which proposes a commercial transaction as its primary purpose. Acceptable advertising must promote for sale, lease, or other financial benefit a product, service, event, or other property interest in primarily a commercial manner for primarily a commercial purpose. 13

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15 15 AND NOW THE REST OF THE STORY HOW DO YOU, AS AN AIRPORT, BALANCE THE REQUESTS OF YOUR COMMUNITY LEADERS OR EVENT HOST COMMITTEES; LAW ENFORCEMENT; AND/OR WELCOME TRAVELERS TO YOUR AIRPORT OR CITY AND STAY WITHIN THE LINES?

16 16 HOW DO WE SUPPORT DHS OR LOCAL LAW ENFORCEMENT AND NOT BREAK THE PROTECTIVE BARRIER? IT S NOT A MATTER OF PAID VS FREE Example: See Something, Say Something Example: Human Trafficking Important to local & federal law enforcement, especially during large events and professional sporting events (Super Bowl, NBA Championships, etc.) Is there a way to build awareness without puncturing your airport s ad policy?

17 17 WHAT CONSTITUTES AN AD? Photos of iconic places or scenic locales Advertising or Pretty picture

18 COMMERCIAL TRANSACTION? 18

19 COMMERCIAL TRANSACTION? 19

20 DOES THIS PASS THE TEST? 20

21 ADVERTISING HOT TOPICS Advertising Program Design Open location RFP vs. airport pre-selected locations Technology Static vs. Digital: Greater Cap Ex investment vs. increasing MAG/Revenue Share. Where s the balance point? 21

22 ADVERTISING HOT TOPICS ACDBE Goal Are you stating a percent of Goods and Services (FAA Guidelines)? Or a percent of gross revenue? Sense of Place Is it important to your airport? And how do you balance that with your stated ad policy? 22

23 WHAT S ON THE HORIZON? Additional Contract Services What can advertising concessionaires do to assist airports in ways other than advertising? If your airport can t afford desired customer services or amenities, will your contracts allow carve-outs so that the Advertising Concessionaire can provide them for you and deduct the cost from revenue payments? 23

24 24 DISCUSSION LATEST TRENDS IN THE AIRPORT CONCESSIONS SOLICITATION PROCESS