SR 02-09-2016 8B
City Council
Report
City Council Regular Meeting: February 9, 2016
Agenda Item: 8.B
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To: Mayor and City Council
From: Marsha Moutrie, City Attorney, City Attorney's Office
Subject: Big Blue Bus Advertising Policy
Recommended Action
Staff recommends that the City Council review options for the policy governing
advertisements displayed on the exterior of City buses and adopt either the King County
policy, which allows non-commercial advertising and has been judicially approved, or
reaffirm the City's existing policy, which prohibits non-commercial advertisements and
which also comports with legal requirements.
Executive Summary
The Council has directed staff to present alternative options for a policy governing
advertising on the exterior of City buses. This report responds to that direction by
presenting three options for Council consideration. As explained in this report, staff
recommends that Council either approve adoption of the King County policy, which has
been validated by the Ninth Circuit as comporting with First Amendment standards and
which allows non-commercial advertising, or affirm the City's current advertising policy.
It prohibits non-commercial advertising, a prohibition authorized by First Amendment
case law. Staff recommends against adopting the third policy, proposed by prospective
advertisers, because it has not been validated in court.
Background
The City sells advertising space on the exterior panels of its buses for the purpose of
raising revenue to fund Big Blue Bus (BBB) operations. At present, all such
advertisements are commercial and about 90% of the ads are for movies, television
programs or health care services. The annual income from advertising is about $2
million.
The City has advertising guidelines utilized by BBB personnel to ensure that
advertisements on bus exteriors do not conflict with BBB's mission of providing safe and
efficient public transportation. A copy of the guidelines is attached as Attachment "A".
The guidelines constitute an advertising policy intended to meet a number of BBB goals.
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These include, but are not limited to: maximizing ridership; preventing harm or abuse to
passengers, BBB vouchers, and buses; maximizing revenue; maintaining governmental
neutrality and avoiding actual or perceived discrimination; and preserving marketability
of advertising space. For at least fifteen years, the City's bus advertising policy has
prohibited non-commercial advertisements on the exterior of City buses. It was adopted
to effectuate the BBB's mission, achieve its goals, and satisfy First Amendment
constraints applicable to government regulation of speech, which includes advertising.
Generally, the extent of the First Amendment constraints upon government's ability to
regulate speech and other forms of expression depends on the classification of the
"forum" in which the expression occurs. Individual rights of expression are most
staunchly protected, and the government's regulatory powers are most limited in a
"public forum", such as a street or public park. In contrast, the government has
maximum authority to regulate expression in a "nonpublic forum". The Supreme Court
established that the exterior panel of a city bus is a nonpublic forum in Lehman v.
Shaker Heights, 418 U.S. 298 (1974) [holding that that an advertising panel on a city
bus is not a public forum and therefore the city can ban political advertising on city
buses].
After Lehman, an anti-abortion civil rights advocacy group challenged Phoenix's bus
advertising policy, which allowed only commercial advertisements on the exterior of city
buses, when Phoenix refused to run the group's proposed anti-abortion advertisement
because it did not propose a commercial transaction. Children of the Rosary v. City of
Phoenix, 154 F.3d 972 (9th Cir. 1998). The federal district court rejected plaintiff's claim.
On appeal, the Ninth Circuit affirmed and upheld the city's advertising policy, concluding
that the exterior bus panel was a nonpublic forum and so the government, as forum
proprietor, could impose reasonable limitations prohibiting categories of advertisements.
The court explained that Phoenix's policy of allowing only commercial advertisements
was reasonable because it: ensured governmental neutrality on political and religious
issues; protected against violence directed at passengers or buses; and protected
advertising revenues, which might be diminished if commercial advertisers withdrew
their bus ads because other ads were controversial. The court also concluded that
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Phoenix's standards were constitutional because they did not discriminate based on
particular viewpoint – only based on category. Thus, Children of the Rosary clarified
that public transit operators in the Ninth Circuit could implement standards precluding
non-commercial advertising on exterior bus panels.
Many did, including Santa Monica. The City's current transit advertising policy permits
only commercial advertising on Big Blue buses. This policy was recommended by staff
and adopted because the policy clearly comports with the guidance provided in Children
of the Rosary; and, at the time, it was not clear that First Amendment protections
allowed the City to pick and choose between non -commercial advertisements. However,
two Ninth Circuit decisions, issued last year, expand the City Council's policy options
and allow for flexibility in approving non-commercial advertisements. Those cases are
described in some detail here because the facts illustrate the potential difficulties of
administering a bus advertising policy and because explaining the law may assist the
Council in evaluating its options.
In Seattle Mideast Awareness Campaign v. King County, 781 F.3d 489 (9th Cir.
2015)[King County I], a non-profit organization, which opposed United States support
for Israel, proposed a bus advertisement stating: "Israeli war crimes your tax dollars at
work." The advertisement was ultimately determined to comport with King County's bus
advertising policy and was approved. However, before the ad ran, a local television
station broadcast a story about its approval. A massive and hostile response ensued .
The bus company received about 6,000 e-mails in ten days, almost all urging that the
ad be pulled. Some of the e-mails threatened vandalism and rioting at bus stops.
Photographs depicting dead or injured bus passengers and damaged buses appeared
at the bus company service center, and apparent threats were made against the
individuals who had approved the ads. Drivers expressed concerns for their own safety ,
and some refused to drive buses displaying the ad. Within a few days, pro-Israeli
groups submitted their own potentially inflammatory ads.
Based on the volume and extremity of the threats, the county executive withdrew
approval of the ad, the bus company revised its policy to exclude all political or
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ideological ads, and the proponents of the initial advertisement filed suit alleging a
violation of their First Amendment rights. The federal district court rejected the group's
claims and granted summary judgment to King County. Plaintiff appealed.
The Ninth Circuit affirmed the decision in favor of King County. The court applied the
forum analysis and concluded that the exterior bus panels were a limited or nonpublic
forum, largely because the government did not intend to grant general access to its
property for expressive use by all classes of speakers; rather, it intended to limit access
and impose speaker-based or subject-matter limitations. The court explained that such
limitations are constitutional in a nonpublic forum so long as they are reasonable (in that
they are compatible with the intended purpose of the property and are both definite and
objective) and are also viewpoint neutral. The court concluded that the King County
policy met these requirements. It was reasonable for the transit operator to exclude
speech so objectionable under community standards as to make it reasonably
foreseeable that running the ad would result in harm to and disruption of the system ;
and this exclusion was, in the court's view, adequately definite and objective. One
member of the three-judge panel dissented, concluding that the exterior panels were a
designated public forum and that the King County policy did not meet the stricter
constitutional constraints applicable to that type of forum.
Months later, in a second challenge involving the revised King County policy , the Ninth
Circuit decided American Freedom Defense Initiative v. King County, 796 F3d 1165
(9th Cir. 2015)[King County II]. In that case, the Federal Bureau of Investigation (FBI)
submitted a bus advertisement showing photographs of 15 peoples' faces described by
the ad as the "Faces of Global Terrorism" and offering up to $25 Million in rewards.
After the ad began running, King County received a small number of complaints from
the public including a complaint from a Congress member and complaints from two
community leaders. The FBI withdrew the ad. The nonprofit organization American
Freedom Defense Initiative then submitted a very similar version of the same ad. King
County rejected it as failing to comply with its revised advertising policy because the
county determined the ad to be false or misleading, demeaning or disparaging and
potentially harmful or disruptive to the transit system. The nonprofit filed suit and sought
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a preliminary injunction, which was denied by the district court. Plaintiff appealed.
Relying on its prior decision in King County I, the Ninth Circuit affirmed because the
county's policy met the requirements for a limited or nonpublic forum.
The facts underlying these two cases are quite different. In King County I, the record
demonstrated that running the proposed advertisement posed a clear risk of violence
and disruption to the transit system. In contrast, in King County II, there were
apparently no threats of violence or disruption to transit services . Plaintiff non-profit has
petitioned for review by the United State Supreme Court in November of 2015, and that
petition is pending. Nonetheless, King County II establishes the present legal validity of
King County's advertising policy, which is summarized in Attachment B.
The City's own advertising policy has also been challenged in court. In 2012, Aids Walk
LA filed suit against the City, claiming that prohibiting noncommercial advertising
violates free speech guarantees of both the state and federal constitutions. In
November of 2014, Council approved a settlement of that case which provided
monetary relief to plaintiff but maintained the City's bus advertising policy. The
settlement agreement was finally executed in June of last year.
Most recently, a law firm representing the Advertisers has written to the Council urging
that the City's policy be revised through adoption of either the King County Policy or an
alternative policy prepared by the law firm and apparent ly modelled after the current Los
Angeles Department of Transportation policy. A summary of the advertising standards
in that proposed policy are attached as Attachment C.
Discussion
The three policies presented for Council consideration differ in structure and language.
However, they contain mostly similar prohibitions. A comparison of the three policies'
prohibitions is attached as Attachment D. All three policies prohibit advertising that:
is false, misleading or deceptive;
is obscene, sexually explicit or harmful to minors;
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promotes violence or illegal activity;
ridicules/defames groups or individuals;
creates a clear danger of inciting a public safety threat;
promotes alcohol/tobacco/gun purchase/use;
violates copyright, trademark and other laws;
or interferes with transit operations.
The main difference between the three policies is that only Santa Monica's current
policy prohibits non-commercial advertising. In contrast, the King County policy and the
Advertisers' proposed policy both allow noncommercial advertising but prohibit political
campaign speech. Additionally, both the King County policy and the Advertising
Entities' proposed policy both prohibit adult entertainments/services and adult
entertainment facilities, while Santa Monica's does not explicitly prohibit such ads
(though it may be interpreted to prohibit them). Finally, the Advertisers proposed policy
also prohibits religious advertisements, while the other two do not.
As to the practical viability of Santa Monica's present policy, BBB management reports
that the present advertising policy has worked well for the enterprise. Exterior
advertising sales are robust and have raised significant revenues that provide support
for public transit in Santa Monica – presently about $2 Million per year.
In support of their request that the City change its policy, the Advertis ers urge that,
following the King County decisions, the City need no longer draw a line between
commercial and non-commercial advertisements to meet First Amendment constraints,
that the distinction between commercial and non-commercial advertisements may be
difficult to draw, and that a policy allowing non-commercial advertisements would have
legal and practical advantages.
Legal staff agrees that the Ninth Circuit's 2015 decision in King County II affords the
legal option of adopting the King County policy. Doing so would eliminate the current
prohibition against non-commercial advertising and would allow the BBB to run some
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categories of non-commercial advertisements but prohibit others, such as political
advertisements.
Legal staff also agrees with the Advertisers that, in some circumstances, it can be
difficult to distinguish between commercial and non-commercial advertisements (though
usually it is not). For example, as the Advertisers have argued, a non-profit entity could
submit an advertisement that conveyed the non-profit's message and also proposed a
commercial transaction, such the sale of a book advancing the non-profit's cause.
Legal staff is less certain about the Advertisers' policy and practical arguments. They
argue that the current policy should be changed because a different policy would afford
expressive opportunities to more speakers to express more types of views on the
exteriors of Big Blue buses. Staff agrees with the general proposition that the
government creating more opportunities for speech is, in the abstract, good policy.
However, as the City's past First Amendment disputes illustrate, this generality is likely
insufficient to dictate policy. Competing concerns about use of public property for
expression must be recognized in setting policy, and the devil is often in the details.
The Advertisers also argue that accepting non-commercial advertisements would
enhance BBB advertising revenues. This is possible but uncertain. BBB management
reports little or no difficulty selling exterior advertising space under current policy. Thus
creating larger pool of potential applicants would not necessarily enhance revenues.
Moreover, BBB management believes that changing policies is likely to impact
operating expenditures. Expanding the pool of applicants would require additional
administrative oversight of the program because more prospective advertisements
would need to be reviewed. King County staff re ports that this has been their
experience, and it would likely be duplicated here.
Also, more prospective advertisers would be competing for the space, and prospective
advertisers would be afforded advertising space on a first-come, first-served basis (as
they are now). It is possible that increased competition for ad space could discourage
some advertisers - particularly commercial advertisers who may need certainty as to the
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timing and saturation of their advertisements.
It is also possible that some non-commercial advertisements that would be allowed
under the King County policy would be perceived as unpleasant, distasteful, or
unattractive by BBB patrons, the general public, or other BBB advertisers.
Theoretically, this could impact BBB revenues - though significant impact seems
unlikely. In any event, under the current policy there have occasionally been
commercial bus ads that drew complaints from patrons and the public. So,
maintenance of the present policy is not a guarantee against that risk. Staff simply
notes that the risk might increase with a different policy.
Thus, it is unclear whether policy or practical considerations militate in favor of adopting
the King County policy. However, if the Council wishes to allow non -commercial
advertising on bus exteriors, legal considerations make adoption of the King County
policy the best alternative, because it has been approved by the Ninth Circuit.
As to the policy suggested by the Advertisers and summarized in Attachment C, staff
recommends against its adoption. If the purpose of changing the advertising policy is to
obtain flexibility to run non-commercial ads while meeting legal requirements, adopting
the proposal prepared by the Advertisers' counsel might not fulfill that purpose because
that policy has not been judicially validated. Thus, staff recommends only the King
County policy if Council wants to allow non-commercial advertising.
Of course, the King County policy may face further judicial scrutiny. The plaintiff in King
County II has petitioned for Supreme Court review; so, the Ninth Circuit's decision could
be overturned or modified in the future. However, the odds of that are small; the
Supreme Court grants review of only a very small percentage of petitions. Likewise,
there could be a decision in another case that would undermine the legal viability of the
King County policy. First Amendment case law develops rapidly and sometimes
unpredictably. However, if the case law changes, the City's bus advertising policy can
always be changed accordingly.
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Thus, for the reasons stated in this report, staff recommends that the City Council either
adopt the King County policy or reaffirm the BBB's existing policy. And, whether or not
Council opts to change the advertising policy, legal staff will add to the policy a
statement of purpose and intent to the policy. It will help facilitate its consistent
application and insulate it against legal challenge.
Alternatives
As an alternative, Council could adopt but modify one of the three policies covered by
this report, either by adding or eliminating a particular prohibition and/or by modifying
the language of one or more prohibitions. For instance, Council could decide to
maintain the present City policy, but eliminate the prohib ition on non-commercial
advertising and, for example, add express prohibitions against political advertisements
and advertisements for adult services and entertainment facilities. Council might also
wish to broaden the prohibition against tobacco advertising to include all smoking
materials.
Financial Impacts
Exact financial impacts of adopting a new policy are difficult to predict. However, it is
unlikely that any financial impacts would be so significant as to substantially alter BBB
operations.
Prepared By: Marsha Moutrie, City Attorney
Approved
Forwarded to Council
Attachments:
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A. BBBAdvertisingGuidelinesAttachmentASR02092016
B. BusAdKingCo policy2012AttachmentB02092016
C. ProposedBBBAdPolicyManattAttachmentC020916
D. BBBAdPolicyTableAttachmentD020916
E. Written comments
ATTACHMENT A
BIG BLUE BUS ADVERTISING GUIDELINES
The City may change these advertising guidelines at any time and without notice to
Advertiser. Advertiser may contact the Transit Community Relations Officer to obtain
the current advertising guidelines.
The Transit Community Relations Officer only licenses advertising space for commercial
advertisements. A commercial advertisement has as its primary purpose the promotion
of a product for sale or a service for hire by the public generally.
The Transit Community Relations Officer cannot license advertising space for any
prohibited advertisements. An advertisement is prohibited if it meets one or more of the
following criteria:
1. Causes the vehicle, if posted individually or in combination with o ther
advertisements, to become a public forum for the dissemination, debate, or
discussion of any such issues;
2. Is not a commercial advertisement;
3. Contains false, misleading or deceptive information;
4. Contains material that is explicitly sexual, obscene, or harmful to minors as those
terms as defined in California Penal Code section 311;
5. Advocates, promotes or incites violence or illegal activity;
6. Ridicules, derides, embarrasses, or defames any individual, group of individuals,
or entity;
7. Contains language that presents a clear and present danger of causing any riot,
disorder, or other imminent threat to public safety, peace or order;
8. Contains any direct or indirect promotion of the sale or use of alcoholic
beverages, tobacco or firearms;
9. Interferes with safe and efficient provision of public transportation service; or
violates any copyright or other intellectual property rights.
ATTACHMENT B
KING COUNTY 2012 BUS ADVERTISING POLICY
as Summarized and Upheld by the Ninth Circuit
List of prohibitions from the Ninth Circuit's decision upholding the policy in American
Freedom Initiative v. King County, 796 F.3d 1165, 1167 (9th Cir. 2015).
"In general, advertisements are allowed unless they fall within one of the following
eleven categories …
1. Political campaign speech
2. Tobacco, alcohol, firearms, and adult-related products and services
3. Sexual or excretory subject matter
4. False or misleading
5. Copyright, trademark, or otherwise unlawful
6. Illegal activity
7. Profanity and violence
8. Demeaning or disparaging
9. Harmful or disruptive to transit system
10. Light, nose, and special effects
11. Unsafe transit behavior."
ATTACHMENT C
Proposed Bus Advertising Prohibitions From Attorneys Representing Advertising
Entities
"Advertising is prohibited … if it includes any of the following content:
1. Political Campaign Advertising. …
2. Religious Advertising. …
3. Prohibited Products, Services or Activities. Any advertising that promotes or depicts
the sale, rental, or use of, or participation in the following products, services
a. Alcohol …;
b. Tobacco …;
c. Adult/Mature Rated Films, Television or Video Games …;
d. Adult Entertainment Facilities …;
e. Other Adult Services …;
f. Obscene or Sexually Explicit Matter …;
g. False or Misleading …;
h. Copyright, Trademark or Otherwise Unlawful …;
i. Illegal Activity …;
j. Profanity and Violence …;
k. Firearms …;
l. Disparaging …;
m. Adverse to the Big Blue Bus: Advertising, or any material contained in it, that
is directly adverse to the commercial or administrative interest of the Big Blue Bus, or
that tends to disparage the quality of service provided by the Big Blue B us, or that tends
to disparage public transportation generally;
n. The Big Blue Bus Graphics and References: Advertising that contains Big
Blue Bus or City of Santa Monica graphics, logos, or representations without the
express written consent of the Big Blue Bus;
o. Insulting, Degrading or Offensive …;
p. Harmful or Disruptive to Transit System …;
q. Unsafe Transit Behavior; Any advertisement that encourages or depicts
unsafe behavior with respect to transit-related activities; such as non-use of normal
safety precautions in awaiting, boarding, riding upon or debarking from transit vehicles."
ATTACHMENT D
COMPARISON OF PRESENT BBB AD POLICY AND PROPOSALS
Prohibited Ads Santa Monica King County Advertisers
Creating forum X
Non-commercial X
Campaign speech (X)* X X
Religious (X)* X
False/misleading X X X
Sexually explicit X X X
Violent/illegal X X X
Defamatory X X X
Safety/disorder threat X X X
Guns/alcohol/tobacco X X X
Adult film/TV/video (X)* X X
Adult services (X)* X X
Copyright/TM X X X
Transit interference X X X
*The BBB policy's prohibition on non-commercial advertising operates to prohibit campaign and religious
speech; ads for adult films/TV/video and adult services may be excluded as "sexually explicit".
1
councilmtgitems
From:Council Mailbox
Sent:Tuesday, February 09, 2016 10:19 AM
To:Tony Vazquez; Ted Winterer; Pam OConnor; Sue Himmelrich; Gleam Davis; Terry O’Day;
Kevin McKeown Fwd
Cc:councilmtgitems; Marsha Moutrie; Elaine Polachek; Ed King
Subject:FW: KCRW and Big Blue Bus
Council‐
Please see email below re: BBB advertising.
Clerk‐
Add‐to for tonight’s Council meeting.
Thanks,
Stephanie
From: Jennifer Ferro [mailto:jennifer.ferro@kcrw.org]
Sent: Monday, February 08, 2016 5:09 PM
To: Tony Vazquez; Council Mailbox
Cc: Santa Monica City Manager's Office; Jeffery_Kathryn@smc.edu; GIRARD_DONALD
Subject: KCRW and Big Blue Bus
RE: Item 8.B, City Council Meeting, February 9, 2016
Mayor Vazquez and Santa Monica City Councilmembers:
I understand that you will be weighing the advertising policy of the Big Blue Bus this week.
KCRW has had a long standing trade with the Big Blue Bus that allows us to advertise our community service
and, in exchange, allows the Big Blue Bus and the City of Santa Monica to communicate to the greater Los
Angeles community of over 600,000 weekly KCRW listeners. These spots are highly coveted because of
KCRW's highly engaged audience of decision-makers and community members.
In fact, when the City of Santa Monica was faced with increasing traffic accidents KCRW ran a "Watch the
Road" on-air campaign for the City that asked drivers to pay attention to bike lanes and cyclists. This campaign
ran for weeks and reminded people to put down their cell phones and pay attention. This was part of our trade
arrangement and was a successful way to reach a large number of commuters while they were in their cars.
I am asking for you to reconsider the current suspension of noncommercial advertising at this time. This
program has been tremendously helpful to our mission of providing the community with important news,
information and cultural programming.
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You may notice that there are still existing posters on some busses. These front posters are tattered and contain
our old imaging. We would like to be able to update these and reinstate our cooperative arrangement with the
Blue Bus.
As a non-profit and a department of SMC, KCRW relies on these partnerships. They allow us to provide more
service than we can alone. I hope you'll reconsider your current policy and allow non-commercial advertising,
and KCRW, to return to the Big Blue Bus.
JENNIFER FERRO
President
KCRW 89.9 | KCRW.COM
1900 Pico Blvd
Santa Monica, CA 90405
Office.310.314.4613
Add to 8-B
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councilmtgitems
From:Council Mailbox
Sent:Monday, February 08, 2016 4:04 PM
To:Tony Vazquez; Ted Winterer; Pam OConnor; Sue Himmelrich; Gleam Davis; Terry O’Day;
Kevin McKeown Fwd
Cc:councilmtgitems
Subject:FW: KCRW and Big Blue Bus
Follow Up Flag:Follow up
Flag Status:Completed
Council‐
Please see email below re: BBB advertising.
Clerk‐
Add‐to for 2/9 meeting.
Thanks,
Stephanie
From: GIRARD_DONALD [mailto:GIRARD_DONALD@smc.edu]
Sent: Monday, February 08, 2016 9:39 AM
To: Tony Vazquez; Council Mailbox
Cc: Santa Monica City Manager's Office; JEFFERY_KATHRYN; KCRW‐FERRO_JENNIFER
Subject: KCRW and Big Blue Bus
February 8, 2016
Re: Item 8.B, City Council Regular Meeting, February 9, 2016
Dear City of Santa Monica Mayor Vazquez and Councilmembers,
As you discuss the possibility of changing the Big Blue Bus advertising policy, please be aware that the change in enforcement
of the ban of noncommercial advertising, initiated in late 2012, has led to the suspension of a relationship, in place for more
than 20 years, between Big Blue Bus and Santa Monica College’s radio station KCRW‐89.9 FM.
The trade of services between BBB and KCRW provided BBB with a generous allotment of radio spots promoting its services to
the public in return for KCRW’s use of exterior advertising space on the front of the bus.
Many emails were exchanged in 2013 in an attempt to clarify KCRW’s status as to whether or not it could be classified as part
of Santa Monica College. As you may know, the current policy of BBB permits SMC to advertise on Big Blue Bus. Despite this
effort and other inquiries over the intervening time, the issue for KCRW remains unresolved. (And yes, KCRW is part of Santa
Monica College.)
The current situation is awkward. Advertisements for KCRW are currently on the front of some of the Big Blue buses. These
are left over from 2012 and years before. The posters are worn, faded, and out of date. KCRW is not able to replace them or
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update them or even remove them. And Big Blue Bus no longer receives underwriting air time from KCRW due to the
suspension.
Please assist in bringing resolution to this issue. Our preference of course is to return to the beneficial relationship between
KCRW and Big Blue Bus.
The adoption of the King County advertising policy, as one of the options endorsed by your City Attorney, would provide
resolution, it appears to us.
Thank you for your attention to this issue.
Sincerely,
Donald Girard
Senior Director, Government Relations and Institutional Communications
Santa Monica College
1900 Pico Boulevard
Santa Monica, CA 90405
(310) 434‐4287 office
(310) 261‐2286 mobile
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