MELROSE, INC. v. CITY OF PITTSBURGH

andard that we apply in reviewing the ordinance at issue. Rappa, 18 F.3d at 1053 (quoting Police Dep't of Chi v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)); see also Riel v. City of Bradford, 485 F.3d 736, 743 (3d Cir. 2007). If the statute is content-based, the government must "show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Rappa, 18 F.3d at 1053 (quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)) (internal quotation marks omitted). If instead the statute is found to be content-neutral in that it "merely restricts the total quantity of speech by regulating the time, the place or the manner in which one can speak, a very different test applies." Id. (citations omitted). Under this test, the government is permitted to "impose reasonable restrictions on the time, place, or manner of protected speech, provided [1] the restrictions `are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Cmty. for Creative Non-violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)) (further citation omitted).

Melrose contends that the Zoning Code was applied to its applications in a content-based manner and that no showing was made of a compelling state interest. In response, the City argues that the sign ordinance was applied in a permissible content-neutral manner. In Riel, a case also involving First Amendment challenges to municipal sign ordinances, we observed that "determining whether a statute is content-based or content-neutral has not been entirely straightforward." 485 F.3d at 744. Riel analyzed and applied the frame-work that we set forth in Rappa for making this determination.

Rappa likewise involved a First Amendment challenge to outdoor sign ordinances. In seeking to determine "the current state of First Amendment law pertaining to out-door signs," we discussed at length the Supreme Court's splintered decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), which dealt with a San Diego ordinance regarding billboards. Rappa, 18 F.3d at 1047. We found that a clear governing standard could not be derived from the plurality and concurrence in Metromedia and concluded that, given significant differences between the ordinances at issue in both cases, the result in Metromedia did not control our decision in Rappa. Id. at 1061. Instead, we articulated and then applied a "context-sensitive" analysis for determining whether a restriction on speech, including a sign ordinance, is content-neutral or content-based. We explained in Rappa that "[s]ome signs are more important than others" because

they are more related to the particular location than are other signs. Allowing such "context-sensitive" signs while banning others is not discriminating in favor of the content of these signs; rather, it is accommodating the special nature of such signs so that the messages they contain have an equal chance to be communicated.

Id. at 1064. As an example, we noted that "[a] sign identifying a commercial establishment is more important on its premises than is a sign advertising an unrelated product." Id.

Determining whether a sign is related to the location where it is placed inevitably demands a consideration of the sign's content. But this consideration does not by itself constitute a lack of neutrality as to specific content. Summing up our analysis, we held in Rappa that:

[W]hen there is a significant relationship between the content of particular speech and a specific location or its use, the state can exempt from a general ban speech having that content so long as the state did not make the distinction in an attempt to censor certain viewpoints or to control what issues are appropriate for public debate and so long as the exception also survives the test proposed by the Metromedia concurrence: i.e., the state must show that the exception is substantially related to advancing an important state interest that is at least as important as the interests advanced by the underlying regulation, that the exception is no broader than necessary to advance the special goal, and that the exception is narrowly drawn so as to impinge as little as possible on the overall goal.

Id. at 1065 (internal footnotes omitted). We outlined two ways through which the requirement that a sign be significantly related to a specific location might be satisfied. First, a sign could be particularly important to travelers on a nearby road, such as a directional sign. Second, it could be shown "that a sign better conveys its information in its particular location than it could anywhere else — for example, an address sign." Id. Hence, as we summarized in Riel, the core of Rappa's holding is that exceptions such as those at issue in this case do not constitute content-based restrictions that we analyze using a strict scrutiny framework. Instead, we employ "a more flexible, context-specific approach." Riel, 485 F.3d at 746.

In Rappa, we described the Metromedia concurrence's test as "essentially a more stringent version of the time, place, and manner test." 18 F.3d at 1059 n. 22. Accordingly, we need not separately apply that test in situations where the Rappa analysis is appropriate. See Riel, 485 F.3d at 751 (applying the "general test for time, place, and manner restrictions," rather than Rappa, when "an exemption is not even arguably based on the content of the speech").

Before applying the Rappa framework to the ordinance in this case, we first frame the issue before us. The Pittsburgh Zoning Code bans what it defines as Advertising Signs from certain areas of the city, including those in which the buildings at issue in this case are located. However, the Zoning Code permits signs classified as Identification Signs within those same zoning districts. Ordinances that exempt identification signs from a general ban on signs represent "a classic application of Rappa's context-specific rule." Id. at 750. Such signs clearly better convey their information at the location they are intended to identify, rendering them similar to address signs. Id. They also promote public order by providing the public with information regarding specific buildings. Id. at 751.

The more complex issue in this case, however, is presented by the fact that Melrose seeks to classify its signs, which admittedly possess an advertising component, as Identification Signs. It claims that the signs do not merely advertise a web address, but in fact name the buildings they adorn. The Zoning Code, by not allowing Advertising Signs within the relevant zoning districts, creates a general ban on advertising speech in those areas. However, the four criteria that the Zoning Board has articulated and applied in the Heinz Field case and in Melrose's cases allow for an exception to this general ban when such advertising is conveyed through a sign that, although it has advertising characteristics, remains a genuine Identification Sign.

As the Zoning Board declared in its decision approving the Heinz Field signs, "[w]here a sign has components of advertising and identification, we must determine whether the purported building identification is genuine or merely an effort to utilize the location as an advertising vehicle." (Supp.App. at 11.) The four criteria articulated by the Zoning Board for making this determination provide a framework for evaluating whether a "significant relationship" exists between the content of such signs and the specific location in which they are placed. See Rappa, 18 F.3d at 1066. There is no indication that the City sought to "censor certain viewpoints" when it articulated and applied these criteria. Id. at 1065. We therefore conclude that the city's four criteria satisfy the first part of the test we set forth in Rappa.

Accordingly, we proceed to the second portion of the Rappa framework. Here, we consider whether the Zoning Board's exception — for certain Identification Signs that have an advertising component, but that by satisfying the four criteria indicate that they are still a genuine Identification Sign — survives the test set forth in the Metromedia concurrence. Under this test we first examine whether "the exception is substantially related to advancing an important state interest that is at least as important as the interests advanced by the underlying regulation." Id. The City clearly has an important interest in allowing the public to identify a particular name with a geographic location, enabling the public to recognize and find these locations. A sign located at the structure that it names "better conveys its information in that location than it could anywhere else." Riel, 485 F.3d at 750. The four criteria serve this interest by creating a narrow exception that allows for a small number of Identification Signs, which also possess advertising aspects, when there are facts that indicate that the true intent behind the sign is to identify the premises where it is located and that the name depicted will remain constant for a significant period of time. The signs at issue in this case, which also possess advertising characteristics, create a tension between the City's aesthetic interest in limiting the proliferation of Advertising Signs, which the sign regulations advance, and its interest in allowing Identification Signs. See Metromedia, 453 U.S. at 507-08, 101 S.Ct. 2882 (identifying the "appearance of the city" as a "substantial government goal[]"). The Zoning Board's four criteria set forth a reasoned framework for resolving this tension and allow for a narrow exception to the general ban on advertising when advertising is an aspect of a sign that is genuinely intended to be an Identification Sign and therefore serves important state interests, including "public order," Riel, 485 F.3d at 751, and "traffic safety," Metromedia, 453 U.S. at 507-08, 101 S.Ct. 2882.

To the extent that Melrose contends that this exception is specifically directed at permitting the phenomenon of naming rights at large facilities, we also recognize an important state interest in facilitating such naming agreements. As the City stated at oral argument, both the City and the public at large have an important interest in enabling the construction of such facilities, which benefit from the financial support that derives from sponsorship agreements.

We recognize that naming rights represent a unique phenomenon. An entity that purchases such rights seeks to benefit not simply from having signs at the location that advertise its name, but also from having the public associate its name with the venue. As one commentator has observed:

Perhaps the single most important factor in a naming rights agreement is the understanding that the corporate sponsor's name will be used in association with the venue at all times by venue management and tenants. This use facilitates media usage in all communications and leads to recognition within the local as well as the national media. Compared with the traditional media advertising, where the broadcast of a thirty-second prime time television spot can cost $l-$2 million, it becomes apparent why naming rights are efficient marketing.

Christian Maximillian Voigt, "What's Really in the Package of a Naming Rights Deal?" Service Mark Rights and the Naming Rights of Professional Sports Stadiums, 11 J. Intell. Prop. L. 327, 330 (2004) (internal footnotes omitted). Hence the purchase of naming rights can prove lucrative for a sponsor for reasons beyond whether or not the sponsor is able to have signs with its name erected on the facility's exterior. The exterior signs on such facilities do not, by themselves, "name" the venue, but instead aid the public in recognizing a specific destination. As such, they "promote public order by providing information about the building[]." Riel, 485 F.3d at 751.

We turn to the second and third portions of the test delineated in the Metromedia concurrence. We find that the Zoning Board's criteria create an "exception [that] is no broader than necessary" to allow for genuine Identification Signs that possess an advertising aspect and that they are "narrowly drawn so as to impinge as little as possible on the overall goal" of preventing the proliferation of advertising signs in certain locales. Rappa, 18 F.3d at 1065. The four criteria narrowly tailor this exception by requiring applicants to show that such signs are intended to establish a generally recognized destination point of interest to a significant segment of the public; that they are intended to remain in place for a significant period of time, which will both establish and sustain the public's recognition of the destination point; and that the owner or principal user of the premises, who is likely to have a vested interest in the stability of its identification, possesses control over the signs.

These criteria serve to prevent a proliferation of Advertising Signs with rapidly changing content that purport to be Identification Signs. As such they are "narrowly drawn so as to impinge as little as possible on the overall goal" of the City's sign regulations. Id. at 1065. The longevity criteria and the requirement that the owner or principal user of a building possesses control over the sign reinforce the City's interest in allowing the public to associate a given name with a specific location and narrowly tailor the scope of this exception. Clearly, it behooves the owner or principal user of a building, particularly one who operates a business on the premise, to ensure that signs on the building remain consistent and that they allow the public to easily ascertain and remember its location. In Metromedia, the Supreme Court deemed it reasonable for a city to believe that "offsite advertising, with its periodically changing content, presents a more acute problem than does onsite advertising." 453 U.S. at 511, 101 S.Ct. 2882 (citation omitted). Implicit in this statement is the assumption that onsite advertising, for a business at the location, will change less frequently than the contents of a commercial billboard at the same premises. Certainly a commercial tenant is not likely to move as frequently as a billboard might be changed for new advertising. Analogously, we find that the Zoning Board's concern with a building's owner or primary tenant having control over the content of signs, in conjunction with the other criteria, serves to ensure that the exception remains narrow. An owner or primary tenant would likely have more invested in ensuring that the signs that identify the premise remain stable than would a party with no interest in the premises beyond its control of the signs. In summary, we conclude that the Zoning Board's consideration of the content of signs with an advertising aspect, for the purpose of determining whether they satisfy these criteria and can properly be classified as Identification Signs, constitutes a "context-sensitive" analysis and is not improper.

Melrose's signs clearly fail to satisfy these criteria. No showing has been made of intended longevity. In fact, Melrose asserted its right to change the content of its signs as frequently as it wished. Nor is Melrose, which controls the signs, the owner of the buildings or their primary tenant. Finally, Melrose's contention that its proposed building names would serve the public interest by identifying specific geographic locations, for purposes including the calling of emergency assistance, is undermined by the fact that it sought to name three distinct buildings "palegalhelp.com." Accordingly, we find that Melrose failed by a wide margin to satisfy the four criteria.

We also reject Melrose's contention that the criteria created an impermissibly subjective or vague standard. The Supreme Court has held that "[a] government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (internal quotation marks and citation omitted). This is true even for a facially neutral provision. Riel, 485 F.3d at 755. Accordingly, to avoid the danger of censorship, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority." Forsyth County, Ga., 505 U.S. at 131, 112 S.Ct. 2395 (internal quotation marks and citation omitted). Permitting schemes under which decision makers are "guided only by their own ideas of public welfare, peace, safety, health, decency, good order, morals or convenience" have been rejected. Shuttleswortk v. City of Birmingham, Ala., 394 U.S. 147, 150, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (internal quotation marks omitted) ( quoted in Riel, 485 F.3d at 755). In Shuttlesworth, the Court found unconstitutional a scheme that allowed the city commission to reject a parade permit if "in its judgment" any of these general concerns "require that it be refused." Id. at 150-51, 89 S.Ct. 935.

In contrast, in Riel we approved a permit standard that required an architectural review board to review sign and display applications "for conformity in exterior material composition, exterior structural design, external appearance and size of similar advertising or information media used in the architectural period of the district in accordance with the Resource Inventory of building architectural styles of the [city's] Historic District." Riel, 485 F.3d at 755 (internal quotation marks and citation omitted). We found that this standard did not afford "unbridled discretion," but instead limited the review to consideration of certain identified factors. Id. at 756. The ordinance at issue also established certain objective standards for material, border, and typeface. Finally, we noted that the nine-member review board "guards against applicants being subjected to the whim or caprice of one single official." Id. Although some room for subjective judgment remained, "the First Amendment does not require the complete absence of such judgment." Id.

Applying this standard to the Pittsburgh Zoning Board's four criteria — which the Zoning Board has outlined in its decisions as the framework for determining whether a sign with an advertising aspect can still be classified as an Identification Sign — we find that the criteria are not impermissibly vague or subjective. Instead, they represent "narrow, objective, and definite standards" that guide the Zoning Board's decision making. They do not leave this determination subject to a decision maker's judgment regarding expansive concepts such as "public welfare, peace, safety, health, decency, good order, morals or convenience." Shuttlesworth, 394 U.S. at 150, 89 S.Ct. 935. One criterion, which requires that the sign be controlled by an owner or principal user of the facility, provides an objectively verifiable standard. The other criteria are also narrow in scope, requiring an evaluation of definite factors including the intended longevity of the sign, the importance to the public of the location to be identified by the sign, and whether the sign's major purposes include the establishment of a specific destination point to be generally recognized by the public at a set location. Finally, the Zoning Board, which applies these criteria in reviewing the Zoning Administrator's decisions, is comprised of three members, which protects against the "whim or caprice of one single official." Riel, 485 F.3d at 756. We conclude that the criteria articulated and applied by the Zoning Board in this case do not confer "unbridled" discretion and are neither un-constitutionally subjective nor vague.

Melrose specifically argues that the longevity requirement has been applied subjectively, citing other buildings that have had frequent name changes. This argument is unavailing; the names at the buildings cited were changed when the building's major tenant changed. Longevity is not a general principle the Board applies to all signs, but rather a criterion it has chosen to apply in attempting to determine whether a sign that has an advertising component is still primarily an Identification Sign, rather than simply advertising. Accordingly, the failure to apply a longevity requirement to all signs in the City of Pittsburgh is not evidence of improper subjectivity.

For these reasons, Melrose's First Amendment claims fail.

B. Melrose's Equal Protection Claim

Melrose also raises an equal protection challenge to the application of the Zoning Code to its sign applications. It contends that the Zoning Board treated its applications differently than those for new signage at Heinz Field, PNC Park, Mellon Arena, and I.C. Light Amphitheater. According to Melrose's complaint, "large, corporate, commercial entities" are allowed to name buildings in Pittsburgh "without any restrictions," while Melrose is subject to "arbitrary, capricious and irrational discrimination." (J.A. at 144.) Melrose further insinuates in its brief on appeal that this allegedly disparate treatment was also motivated by the taxpayer funding of the construction of these other facilities.

Melrose brings equal protection challenges pursuant to both the Fourteenth Amendment of the United States Constitution and Article 1, § 26 of the Pennsylvania Constitution. Our analysis of Melrose's federal equal protection claims is equally applicable to its equal protection claims under the Pennsylvania Constitution. Kramer v. Workers' Comp. Appeal Bd., 584 Pa. 309, 883 A.2d 518, 532 (2005); see also Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 95 n. 6 (3d Cir. 2009).

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citation omitted). In Congregation Kol Ami v. Abington Township, we discussed the "two-step inquiry" outlined in City of Cleburne for reviewing an equal protection challenge to a zoning ordinance. 309 F.3d 120, 136-37 (3d Cir. 2002). This inquiry "properly places the initial burden on the complaining party first to demonstrate that it is `similarly situated' to an entity that is being treated differently before the local municipality must offer a justification for its ordinance." Id. at 137. Our analysis in this case begins and ends at this first step. Melrose has clearly failed to establish that it is similarly situated to those entities whose signs have been approved. As outlined supra, Melrose's sign applications simply fail to satisfy the criteria out-lined by the Zoning Board for determining whether a sign with advertising aspects can still properly be classified as an Identification Sign.

To the extent that Melrose challenges the criteria themselves, rather than their application to its cases, we reject this argument for the same reason we rejected Melrose's First Amendment claims. Having determined that the criteria are not content-based, but instead facilitate a contextual analysis, we find that they survive scrutiny under the Equal Protection Clause. See Brown v. City of Pittsburgh, 586 F.3d 263, 283 (3d Cir. 2009) ("[W]here the state shows a satisfactory rationale for a content-neutral time, place, and manner regulation, that regulation necessarily survives scrutiny under the Equal Protection Clause.") (internal quotation marks and citations omitted).

Melrose briefly argues that the District Court made findings of fact that should have been left for the jury and not resolved at summary judgment. However, Melrose fails to actually identify any material factual determinations made by the District Court. Accordingly, we find this argument to be without merit.

IV.

For the foregoing reasons, we will affirm the District Court's decision granting summary judgment in favor of Defendants.