Commercialization of the highway right-of-way is attractive to the private sector. The two most popular ideas concerning privatization focus upon advertising signs on the right-of-way and commercial utilization of Interstate rest areas. Since current law prohibits such use, a public-private partnership would not be allowed to advance such proposals without changes in statute and regulation.
The FHWA consistently denied proposals to allow advertising on highway rights-of-way for safety and other reasons. Under 23 CFR 1.23(b), rights-of-way of public highways must be devoted "exclusively to public highway purposes" unless the FHWA Administrator approves the use of the right-of-way for any other use. This purpose is reiterated in the Manual on Uniform Traffic Control Devices (MUTCD), which prohibits the placement of advertising on traffic signs and signals. The Highway Beautification Act (HBA) is a law largely aimed at limiting outdoor advertising signs adjacent to, but not on, the right-of-way of Interstates and primary highways.[323] The HBA also expressly provides for some types of right-of-way advertising and specifically allows advertising on the right-of-way only for LOGO signs on Interstate rights of way and tourist-oriented directional signs (special signs in the interest of travelers, limited to rural roads).[324] Such signs are thus permitted by the MUTCD. The HBA also allows motorist information centers to be placed on highway rights-of-way.[325] In addition, on Interstate System rights-of-way, Congress allowed call boxes sponsored by commercial companies to display company logos (23 U.S.C. 111(c)(2)).
The FHWA has determined, based on the above, that Congress did not intend to allow advertising signs on the right-of-way. If there were not a general prohibition on the use of logos in the right-of-way, there would be no reason for Congress to allow it in three specific instances in the United States Code. Thus, the agency has concluded that there must be some direction from Congress to allow broad scale advertising on the right-of-way.
The FHWA does permit State or local agencies to allow acknowledgment signs on the highway rights-of-way to recognize that highway services at a particular location were provided by a particular person or entity. Such acknowledgment signs include sponsorship signs for the adopt-a-highway program, sponsorship of an interchange or landscape planting, and similar programs. These programs have the potential for generating revenue for highway purposes through public-private partnerships based on sponsorship services. The prohibition against advertising in the right-of-way, however, remains in effect and limits the information that may be presented on an acknowledgement sign.
Section 111 of title 23, United States Code, generally prohibits commercial use of rest areas located on the rights-of-way of the Interstate System, except for the sale of items through vending machines operated by the State.[326] Additionally, the FHWA regulations on rest areas forbid any charge to the public for goods and services except charges for telephones or articles dispensed through vending machines.[327] Such vending machines may only dispense such food, drink, and other articles as the State department of transportation determines are appropriate and desirable.[328] For highways not on the Interstate System, the States have latitude to commercialize rest areas. In its surface transportation reauthorization proposal, the Administration proposed the creation of a pilot program to permit States to commercialize rest areas along the Interstate System; private operators could be allowed to run the projects, States would be required to ensure that the net income from the commercial venture is used to maintain the facility or for other title 23, United States Code, purposes.