PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

___________

No. 08-4425

____________

MELROSE, INC.,

Appellant

 v.

CITY OF PITTSBURGH; CITY OF PITTSBURGH 

ZONING BOARD OF ADJUSTMENT; 

CLIFFORD B. LEVINE, ESQ.; 

REGIS D. MURRIN, ESQ.; JESSE W. FIFE, JR., 

___________

On Appeal from the District Court for the

Western District of Pennsylvania

(No. 02-cv-01161)

District Judge: Joy Flowers Conti

Argued January 25, 2010
 Honorable Paul S. Diamond, United States District *

Judge for the Eastern District of Pennsylvania, sitting by

designation.

2

Before: FUENTES and FISHER, Circuit Judges, and 

DIAMOND, District Judge. *

(Opinion Filed: July 20, 2010)

Howard R. Lehman, Esq. (Argued)

6576 Rosemoor St.

Pittsburgh, PA 15217

Counsel for Appellant

Lawrence H. Baumiller, Esq. (Argued)

George R. Specter, Esq.

City of Pittsburgh Department of Law

313 City-County Building

414 Grant Street

Pittsburgh, PA 15219

Counsel for Appellees

OPINION OF THE COURT
3

FUENTES, Circuit Judge:

Melrose, Inc. (“Melrose”) brought this action challenging

the Pittsburgh Zoning Board’s rejection of its applications to

change the Identification Signs on five Pittsburgh buildings.

The proposed building names included “wehirenurses.com

building” and “palegalhelp.com.” The Zoning Board

determined that the signs were Advertising Signs and were

therefore prohibited in the zoning districts where Melrose’s

buildings were located. In reaching this decision, the Zoning

Board applied four criteria that it had articulated in a prior

decision for determining whether a sign with advertising aspects

could still be classified as a genuine Identification Sign.

Melrose challenged this decision in the District Court, arguing

that the Zoning Board’s rejection of its sign applications

violated its First Amendment free speech and Fourteenth

Amendment equal protection rights. The District Court rejected

Melrose’s claims, applying Central Hudson Gas & Electric

Corp. v. Public Commission of New York, 447 U.S. 557 (1980),

which provides the standard for assessing restrictions on

commercial speech. 

In our view, Melrose’s First Amendment claim is not

controlled by Central Hudson, but instead should be evaluated

under the test we delineated in Rappa v. New Castle County, 18

F.3d 1043 (3d Cir. 1994). Applying Rappa, we hold that the

Zoning Board’s application of the criteria constituted a

permissible “context-sensitive” analysis. We also conclude that

Melrose’s equal protection claims must fail as Melrose is simply

not similarly situated to the entities that it claims were treated

differently. Accordingly, we affirm the District Court’s grant of

summary judgment. 
 The first lease granted Melrose naming rights to 840 1

East Ohio Street for approximately fifteen years, from May 27,

1998 to June 30, 2013. The second lease, for 1025-1033 Beaver

Avenue, was entered on July 8, 1998 and granted naming rights

for seventy-two months. The third lease, executed on February

9, 1999, covered a fifteen-year term for the building at 818 East

Ohio Street. An eighteen-year lease for naming rights was

signed for the building at 1217 West Carson Street. The fifth

lease was twenty-seven years in duration and applied to the

building at 57 Bates Street. 

 A second application for this building was later 2

accepted, which changed the name to simply “Staiger.” 

4

I.

Between May 1998 and February 1999, Melrose, a

Pennsylvania corporation, executed lease agreements with the

owners of five Pittsburgh buildings. Each lease granted Melrose

the right to name the building and to construct and display signs

on the building with that name, as well as the right to sublease

or assign these naming rights. The leases, which varied in

length from six to twenty-seven years, did not limit the number

of times that Melrose could change a building’s name.1

Starting in February 1999, Melrose filed applications

with the city’s zoning administrator to erect building

identification signs on the five properties. The process went

smoothly and the requested names were approved. The building

at 840 East Ohio Street was named “Ram Staiger,” a

combination of the building owner’s name and a business on the

premises. The nearby building at 818 East Ohio Street was 2

named “Caskey Limited,” after the girlfriend of one of

Melrose’s officers. A building at 1217 West Carson Street was

named the “Three Rivers Building,” and one at 57 Bates Street

was named “The Cole Building,” after the son of a Melrose
According to the December 14, 2001 Zoning Board of 3

Adjustment (“Zoning Board”) decision on the renaming of this

building, there is no evidence of an application to designate this

property “SSSP.” 

5

officer. The fifth building, at 1025-33 Beaver Avenue, was

named “SSSP.”3

In March 2001, Melrose submitted applications to

rename each of the five buildings and change their signage. The

Cole Building was to be renamed the “wehirenurses.com

building.” The application included a drawing of one proposed

sign, twenty-five feet wide and twenty feet high, with

“wehirenurses.com” repeated on four separate lines and the

word “building” below that on a fifth line. The SSSP and

Caskey Limited buildings were both to be renamed

“palegalhelp.com.” The Ram Staiger building’s name was to be

changed to “Baruch Atah Hashem,” a Hebrew expression that

means “Blessed be God.” A signage application was also

submitted for the Three Rivers Building, but it did not specify

the new name. At a hearing before the Zoning Board, however,

the president of Melrose testified that he intended to change the

name of this building to “www.palegalhelp.com.” Melrose did

not propose any changes to the location, size, or shape of the

signs already in place on the buildings, but instead sought to

change only the signs’ content.

The Pittsburgh Zoning Code (“Zoning Code”)

distinguishes between three categories of signs. These

definitions are important as Melrose sought to have its signs,

with the proposed new names, remain classified as

“Identification Signs.” “Identification Signs” are permitted in

certain zones that prohibit “Advertising Signs.” Pittsburgh Code

of Ordinances § 919.02. Section 919.01.C of the Zoning Code,

in effect at the time of Melrose’s applications, provided these

definitions:

2. Advertising Sign means a sign that directs

attention to a business, commodity, service or

entertainment, conducted, sold or offered: 

(a) Only elsewhere than upon the premises where

the sign is displayed; or
6

(b) As a minor and incidental activity upon the

premises where the sign is displayed.

3. Business Sign means a sign that directs

attention to a business, organization, profession or

industry located upon the premises where the sign

is displayed; to the type of products sold,

manufactured or assembled; and/or to the service

or entertainment offered on such premises; except

a sign pertaining to the preceding if such activity

is only minor and incidental to the principal use of

the premises. 

4. Identification Sign means a sign used to

identify the name of the individual or organization

occupying the premises; the profession of the

occupant; the name of the building on which the

sign is displayed; or the name of the major

enterprise or principal product or service on the

premises. 

(J.A. at 120.) In addition to only being permitted in certain

zoning districts, “Advertising Signs” are subject, under §

919.02, to more rigorous regulations, with respect to location,

placement, size, shape, and illumination, than non-advertising

signs. These restrictions further the purposes of the Code’s sign

regulations, which include allowing advertising signs only in

locations that “neither lessen the visual attributes of the City

through the placement of such signs, nor cause confusion, safety

problems or lessen the ability to identify local businesses

through visual clutter.” Pittsburgh Code of Ordinances §

919.01.A.11. 

Finding that the proposed signs’ content represented

advertising, the Zoning Administrator denied all of Melrose’s

applications. The five buildings were in zoning districts where

the Zoning Code generally prohibited Advertising Signs, but

allowed Business Signs and Identification Signs. Melrose

appealed these decisions to the Zoning Board, which conducted

consolidated hearings. It denied all five appeals in separate

decisions.
7

The Zoning Board found that the proposed signs for the

buildings to be named “p alegalhe lp.com” and

“wehirenurses.com building” represented “a plan or strategy of

evasion,” which sought to avoid the Zoning Code’s restrictions

on Advertising Signs. (J.A. at 70.) As for the building to be

named “Baruch Atah Ashem,” which Melrose described as a

“religious message,” the Zoning Board found that this name did

not fit within the Zoning Code’s definition for an Identification

Sign. (Id. at 62.) The City of Pittsburgh had sent the Zoning

Board a letter advising that there was no legal basis for denying

this application on the grounds that it had no advertising

component and was a valid building name. Without addressing

the City’s position, the Zoning Board denied the application but

invited Melrose to brief the possible constitutional implications

of this particular decision. Melrose did not, however, pursue

the matter further at the Zoning Board level. As for the fifth

building, which Melrose did not provide a new name for in its

application, the Zoning Board found that the Zoning

Administrator should not have made a decision until the

application was completed. It remanded to the Zoning

Administrator so that Melrose could submit an amended

application, but a new application was never submitted. 

One month before its decisions on Melrose’s appeals, the

Zoning Board had approved signs for Heinz Field, a major

football stadium that is home to the National Football League’s

Pittsburgh Steelers and the University of Pittsburgh’s football

team. The H.J. Heinz Company (“Heinz”) had entered into a

sponsorship agreement with the Steelers and had spent $57

million to obtain the naming rights to the Stadium for a period

of twenty years. Neighborhood organizations challenged the

proposed signage at Heinz Field, arguing that the signs were

Advertising Signs rather than Identification Signs and therefore

prohibited. In an interim decision in the case, issued on August

15, 2001, the Zoning Board acknowledged that certain

Identification Signs, which mention the name of a company or

product, may also have an advertising aspect. Accordingly, it

identified four attributes that an Identification Sign with an

advertising component must possess to avoid being categorized

as an Advertising Sign. The four criteria included: first, one of

the sign’s major purposes is to establish a destination point
8

generally recognized by the public at a specific location; second,

the established location is important to a material segment of the

public (for example, a sports, cultural, commercial or artistic

venue); third, “there must be evidence of intended longevity of

the sign adequate to sustain the designation point concept”; and

fourth, either the owner of the facility or its principal user

should be in control of the destiny of the sign, rather than a third

party. (Pl.’s Mot. for. Summ. J. App. at 295-96 [Pittsburgh

Zoning Board of Adjustment, Interim Decision in Zone Case 85

of 2001 (Aug. 15, 2001)].) These criteria were subsequently

cited in the decisions rejecting Melrose’s applications, although

in a slightly different formulation. In its decision applying these

criteria and approving the Heinz Field signage, the Board

recognized the advertising component of naming rights but

emphasized that the Steelers’ lengthy lease agreement for the

stadium and the lengthy sponsorship agreement reached with

Heinz reflected a “long-term commitment that the Stadium will

be known to the general public as ‘Heinz Field.’” (Supp. App.

at 10.) It concluded that the naming was not a “subterfuge to

circumvent the Code’s limitations on advertising” but instead a

legitimate attempt to name the stadium, albeit with a natural

consequence of advertising and marketing benefits for Heinz.

(Id.)

In its subsequent decisions rejecting Melrose’s

applications, the Zoning Board offered a slightly different

articulation of the attributes that it would consider necessary for

“a purported ‘Identification Sign’ . . . to avoid being categorized

as an Advertising Sign.” (J.A. at 56.) These included that:

One of its major purposes of, or result of, an

identification sign must be to establish a specific

destination point that will be generally recognized

by the public as being at a set geographical

location. There must be evidence of intended

longevity of the sign adequate to sustain the

designated point concept. It cannot be as

transitory as a commercial billboard. However, it

need not be immune from unexpected, unforeseen

or unwelcome circumstances that might result in

a termination. Either the owner of the facility or

a principal long term space user thereof should be
9

in control of the destiny of any such sign, rather

than having control turned over to some third

party, to assure continuing compliance with the

necessary attributes. 

Id.

In applying these criteria to Melrose’s applications, the

Board expressed particular concern with the longevity

requirement and with the transfer of building identification

rights, which it noted may lead to frequent changes for

commercial purposes. Frequent changes in the content of signs

and a lack of longevity were deemed inconsistent with the

purposes of building Identification Signs – directing the public

towards a specific geographical location. The Zoning Board

distinguished Melrose’s failure to provide evidence of an

intention to keep the building names for a substantial period of

time from the twenty-year agreement entered into by the Steelers

and Heinz. It also noted in its decisions that Melrose’s

representative had testified that the purpose of the signs was to

direct individuals to the website business in order to make a

profit. 

Melrose filed this action in the Western District of

Pennsylvania, alleging that Defendants – the City of Pittsburgh,

the Pittsburgh Zoning Board, and the three individual members

of the Zoning Board – violated its First and Fourteenth

Amendment rights by arbitrarily denying its sign applications.

Melrose asserted two claims pursuant to Section 1983: first, that

Defendants deprived it of its First Amendment free speech

rights when they impermissibly limited the content of its signs;

and second, that Defendants deprived it of its Fourteenth

Amendment equal protection rights by treating similarly situated

entities more favorably. Melrose also brought a third claim

pursuant to the equal protection clause of the Pennsylvania

Constitution.

The case was referred to a Magistrate Judge for pretrial

proceedings. The Magistrate Judge issued a Report and

Recommendation regarding Defendants’ motion for summary

judgment and Melrose’s motion for partial summary judgment,

recommending that the District Court grant Defendants’

summary judgment motion and deny Melrose’s motion. The
10

Magistrate Judge evaluated Melrose’s First Amendment claims

in light of Central Hudson Gas & Electric Corp. v. Public

Commission of New York, 447 U.S. 557 (1980), which sets forth

a framework for assessing restrictions on commercial speech.

Under this four-part analysis, the court

must determine whether the expression is

protected by the First Amendment. For

commercial speech to come within that provision,

it at least must concern lawful activity and not be

misleading. Next, we ask whether the asserted

governmental interest is substantial. If both

inquiries yield positive answers, we must

determine whether the regulation directly

advances the governmental interest asserted, and

whether it is not more extensive than is necessary

to serve that interest. 

Central Hudson, 447 U.S. at 566. The Magistrate Judge found

the proposed speech to be misleading, but nonetheless

proceeded to examine the remaining factors. The Magistrate

Judge concluded that the city had a substantial interest in

restricting the placement of advertising signs, that the denial of

Melrose’s signs substantially advanced this interest, and that the

regulation was not overly restrictive. The Magistrate Judge also

rejected Melrose’s equal protection claims, finding that since the

regulations passed muster under Central Hudson’s commercial

speech test, they necessarily survived equal protection analysis.

Melrose filed objections and the District Court conducted

a de novo review of the record. The District Court adopted the

Report and Recommendation in part and rejected it in part,

ultimately granting Defendants’ motion for summary judgment.

The Court, applying Central Hudson, rejected the Magistrate

Judge’s finding that the proposed building names were

misleading. Nonetheless, it ultimately adopted the Report and

Recommendation’s conclusion that the regulations constituted

valid restrictions on commercial speech and did not violate

Melrose’s First Amendment rights. The Court held that the

application related to the building Melrose intended to name

“Baruch Atah Hashem” was not properly before it because

Melrose had failed to reapply and brief the possible
11

constitutional claim related to that application. Melrose does

not raise this issue on appeal. The District Court rejected

Melrose’s argument that the term “Building Identification Sign”

is unconstitutionally vague, either on its face or as applied.

Finally, the Court rejected three additional objections to the

Report and Recommendation and found that, even if summary

judgment was not appropriate, the individual Defendants were

entitled to immunity. Melrose filed a timely notice of appeal. 

II.

The District Court exercised jurisdiction over Melrose’s

claims under 28 U.S.C. § 1331. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. We exercise plenary review over

a district court’s summary judgment ruling. Bus. Edge Group,

Inc. v. Champion Mortgage Co., Inc., 519 F.3d 150, 153 n.5 (3d

Cir. 2008). We apply the same standard as the District Court:

“Summary judgment is appropriate only where, drawing all

reasonable inferences in favor of the nonmoving party, there is

no genuine issue as to any material fact and . . . the moving party

is entitled to judgment as a matter of law.” Ruehl v. Viacom,

Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007) (internal quotation

marks and citation omitted). In a case such as this, which

involves First Amendment issues, an appellate court must “make

an independent examination of the whole record.” Bose Corp.

v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)

(internal quotation marks and citation omitted).

III.

As Melrose clarified at oral argument, its challenge

focuses on the Zoning Board’s method of applying the sign

ordinances and determining whether a purported Identification

Sign, which has an advertising aspect, can still properly be

classified as an Identification Sign. The District Court’s

decision analysed Melrose’s claims by applying the framework

articulated in Central Hudson. While we agree with the District

Court’s conclusion – that the Zoning Board’s decisions rejecting

Melrose’s sign applications did not violate Melrose’s First and

Fourteenth Amendment rights – we hold that the proper

framework for evaluating these claims is governed by our
Central Hudson, which the District Court applied in 4

evaluating Melrose’s claims, provides the framework for

evaluating restrictions on commercial speech, particularly

restrictions that distinguish between commercial and noncommercial speech based on content. That is not the situation

here. As we discuss more fully infra, we find that the Zoning

Board’s determination was not content-based, but instead

constituted a context-sensitive analysis that sought to determine

whether there was a significant relationship between the content

of the signs and their specific location, such that they could truly

be deemed Identification Signs.

12

decision in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir.

1994).4

A. Melrose’s First Amendment Claim

In Rappa, we articulated a framework for determining

whether a statute is content-based or content-neutral. This

determination is the first step in a First Amendment analysis, as

the answer dictates the standard 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 (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 (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 (1989)

(quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288, 293 (1984)) (further citation omitted). 
13

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 contentneutral 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 framework 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 outdoor signs,” we

discussed at length the Supreme Court’s splintered decision in

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (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 “contextsensitive” 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
 In Rappa, we described the Metromedia concurrence’s 5

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”). 

14

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 5

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
15

strict scrutiny framework. Instead, we employ “a more flexible,

context-specific approach.” Riel, 485 F.3d at 746. 

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
To the extent that Melrose contends that this exception 6

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. 

16

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 6

“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 (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
17

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. 

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

$1-$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
18

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 (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
19

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 (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

(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.

Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 150

(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. 
 Melrose specifically argues that the longevity 7

requirement has been applied subjectively, citing other buildings

20

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, exteriorstructural 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. 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 7
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. 

Melrose brings equal protection challenges pursuant to 8

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., 883 A.2d 518, 532 (Pa. 2005); see also Busch v.

Marple Newtown Sch. Dist., 567 F.3d 89, 95 n.6 (3d Cir. 2009).

21

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 unconstitutionally subjective nor vague. 

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 8

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
 Melrose briefly argues that the District Court made 9

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

22

treatment was also motivated by the taxpayer funding of the

construction of these other facilities. 

“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 (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 outlined 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). 

9
without merit. 

23

IV.

For the foregoing reasons, we will affirm the District

Court’s decision granting summary judgment in favor of

Defendants.