Can the Loss of a Sign Cause a Successful Business to Fail? And Surrounding Businesses? And Hurt the Community?

In the mid-1990s, Terry Shulman’s was a successful drug store situated in the Gulf Gate Mall in Sarasota, Florida. It was located in the back side of the mall, so it couldn’t be seen from either of the two major arterial roads. However, it paid $3,500 for a freestanding pole sign. Its retail sales had increased 10-18% since it had relocated to the mall, and they peaked at $5 million.

The mall changed ownership. A new tenant, T.G.I.Friday’s, came, and its corporate policy demanded a pole sign. Without Shulman’s knowledge or consent, its freestanding was replaced with a T.G.I.Friday’s sign. Over the next four years, Shulman’s sales dropped by approximately $250,000 annually.

Analysts examined several possible factors. New competition, local economic indicators, physical indicators (ie, mall accessibility) and internal mall indicators were summarily dismissed. Analysts then queried shoppers and discovered 90% of all mall visitors shopped at Shulman’s.

Shulman’s went out of business. Its 20,000-sq.-ft. space remained vacant.

Six months later, a research team revisited the mall. Food-court sales were down at least 30%. Six stores that offered female-oriented goods had closed. Here are some other results:

• A certified appraisal calculated the value of the sign at $250,000 annually.

• The mall’s annual income dropped by $1 million.

• Two dozen employees lost their jobs.

• Sarasota lost $18,000 in sales-tax revenue.

Elsewhere in Florida, in Lake City, during the approximately same time period, a Rodeway Inn had a pole sign visible from I-75. The motel had 86% occupancy, gross sales of more than $600,000, and a profit of $128,000. The state route on which it was located was widened, and the Florida DOT took away the sign. The FDOT appraiser valued the sign at $7,000, based solely on its structure. The next year, motel occupancy fell to 42%; gross income dropped to $350,000, and profit plummeted 69% to $40,000. FDOT was faced with paying more than $400,000 for the taking, or paying $90,000 for a replacement sign. It chose the latter.

Can the Location of Signs Make Them Worth More than the $1.3 Million Building they Identify?

In Cincinnati, OH, in 1997, a building was situated on Pete Rose Way in an ideal location, proximate to the confluence of I-71 and I-75. The building housed Caddy’s, a 50s style entertainment complex. The Cincinnati Bengals NFL football team was about to build its $400 million Paul Brown Stadium, and the land and building were being taken by Hamilton County under eminent domain. The county offered $1.3 million in just compensation for the taking.

However, the five-story standalone building, which had three sides readily visible from the interstate, included five exterior signs. Three of the signs were murals that spanned approximately 2,500 sq. ft. each.

Outdoor advertising is different than on-premise signs in that it is sold as advertising; rates are based on “reach” — the traffic count for the nearby road. Traffic counts are well established for thoroughfares, and this particular stretch of road was traveled daily by an average of 170,000 to 190,000 vehicles. The standard multiplier is 1.6 people per car, so the signage received approximately six million “exposures” monthly.

Given these statistics, the standard rate for the signs would have been $3,000 each ($180,000 annually) if they were sold as outdoor advertising. Total advertising value was subsequently based on a multiplier of 10. (Because the signs branded the building on which they were located, they were not considered outdoor advertising. However, the value of the space was calculated based on the fact that it could be sold as outdoor advertising.)

For the prior decade, Caddy’s had averaged $2.5 million in annual sales, with a net annual income of $840,000. Caddy’s owners originally asked for $5.5 million in compensation. The jury awarded Caddy’s owners $3.1 million. So the $1.8 million the owners received exactly matched the $1.8 million that was deemed to be the value of the advertising space.

Can a Grand Opening without a Sign Directly Cause Loss of Revenue?

On August 18, 1995, a Best Buy store was set to open in San Antonio. By contract, the store was to receive two double-faced pylon signs that faced I-470 by June 1. One 297-sq.-ft. sign did become fully operational the day before the grand opening. The second, 207-sq.-ft. sign, however, didn’t become operational until September 4. Contractually, Best Buy was deprived of one sign for 78 days and the other sign for 96 days. Best Buy hired an appraiser to assess the damages.

Of particular note, the value of the signs had nothing to do with the cost of their fabrication or installation. Instead, their value was based on their communicative and visibility function. In such cases, three property-valuation methods are warranted:

  • Market comparison
  • Income capitalization
  • Cost of replacement

For this particular case, the latter two methods were used.

Cost of Replacement

Traffic Audit Bureau (TAB) numbers, which measure the average number of cars (and people) who would pass the signs daily, state that 99,000 people would see the signs. Thus, the two signs “missed” 15.4 and 19 million “exposures,” or roughly 3 million exposures a month, by not being erected in time. According to a licensed appraiser’s “market comparison,” achieving similar exposure would require one mid-week newspaper insert (200,000 exposures @ $7,258) and one Sunday newspaper ad (345,000 exposures @ $12,520), plus a saturation of TV exposure (2.5 million exposures @ $16,926). This totals $36,704 per face or $146,816 per month for all of the signs. By prorating this one-month cost over the 78- and 96-day delays, the replacement cost becomes $424,767.

Income Capitalization

For this approach, 120 Best Buy customers were surveyed over a two-week period. Thirty customers (25%) said they first became aware of the store because of the sign. Another 38 (32%) said the signs were “useful in locating the store.” Only 22 (18%) said they didn’t use the signs to find the store. The other 30 people didn’t answer the question. This suggests 25% of the store’s business was directly attributable to the signs. Historically, a sign’s direct impact on a business’ sales ranges from 10-50%, with QSRs (quick-service restaurants) at the high end.

In its first year of operation, the Best Buy store averaged $308,687 in monthly sales. If the 25% figure is used, the Best Buy signs generated $77,172 in monthly sales the first year. For the 78- and 96-day periods, then $224,000 was directly attributable to the signs.

Best Buy paid monthly rent of $34,626 (approximately 75 cents per square foot), or $1,154.20 daily. Local industrial buildings that don’t need signs paid approximately 40 cents per square foot. So a signless building would pay approximately $620.27 daily, or $533.94 less daily. Again, using the 25% figure, rent directly related to the signs would be $133.49 daily. Thus, for the 19 days, a rebate of $2,536 in rent would be due.

Estimated total damages were calculated at $227,536. Although the case was settled out of court, Best Buy did receive compensation in the form of rebated rent for less than the assessed damages. Terms were not officially announced.

But clearly, the value of the signs, even for just a 2.5-month period, exceeded $200,000.

University of South Carolina Professor Asks Business Owners to Evaluate their Electronic, Changeable-message Signs

Hendrikus E.J.M.L. van Bulck is an Assistant Professor of Business Administration at the University of South Carolina Sumter. He teaches marketing, entrepreneurship, small-business management, financial management, accounting and strategic management. He is also a partner in Van Bulk Partners, CPAs, LLC, where he is responsible for corporate planning and business valuations.

Van Bulck surveyed the 36 Sumter businesses that had programmable, electronic, variable-message signs (EMCs) for their businesses.  The businesses included 20 retail stores, five gas stations, six service-oriented businesses, five fast-food restaurants, five pharmacies and three banks. Here are some of their observations:

  • More than 85% of the respondents said the EMCs “helped bring in more customers”, and 25% “strongly agreed.”
  • 83% said the sign “measurably increased sales.” 17% “somewhat disagreed,” but no one “strongly disagreed.”
  • 89% agreed with the statement, “The LED sign makes people more aware of the location of the store.”
  • Only 8% said “Customers found such signs unattractive.”
  • 92% said the signs “were easy to update.”
  • 89% would “recommend the sign to other businesses.”

Study: The Value of Signs

Formal Report: Details

Do Electronic Message Centers Cause Traffic Accidents?

Subjective statements often suggest that electronic message centers (EMCs) cause traffic accidents because they are distracting. Yet, is there any empirical evidence that documents this theory?


In 1980, the Federal Highway Administration published its “Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signs” study, which was hugely inconclusive. It conducted the study to support its theory that electronic signage (with changeable messages) caused traffic accidents, but couldn’t generate supporting data.

In March 2011, the FHWA released a study entitled “Driver Visual Behavior in the Presence of Commercial Electronic Variable Message Signs (CEVMS)”, which is another name for EMCs. Two tests were each conducted in Reading, PA and Richmond, VA. It also showed no evidence that electronic billboards cause accidents, as indicated by the following:

-The presence of digital billboards did not appear to be related to a decrease in looking toward the road ahead.

-According to the National Highway Traffic Safety Administration (NHTSA), safety concerns arise when a driver’s eyes are diverted from the roadway by glances that continue for more than 2.0 seconds.

-The longest fixation to a digital billboard was 1.34 seconds, and to a standard billboard, it was 1.28 seconds, well below the accepted standard.

-When comparing the gaze at a CEVMS versus a standard billboard, the drivers in this study were generally more likely to gaze at a CEVMS than at standard billboards.

– The FHWA study adds to the knowledge base but does not “present definitive answers” to the questions investigated.

The study states: “In general, drivers devoted more glances at CEVMS than at standard billboards; however, there were no significant decreases in the proportion of time spent looking at the road ahead (i.e., eyes on the road) that could be directly attributed the CEVMS at the measured luminance and contrast levels.”

Glances away from the forward roadway of greater than 2 seconds or 1.6 seconds’ duration have been proposed as indicators of increased risk of crashes. In the current experiments, there were no long glances at billboards meeting or exceeding 1.6 seconds. The longest glance at a target billboard was less than 1.3 seconds in both studies. Glances with a duration of 1 second or greater were rare: there were 5 in Reading (0.47% of the glances to CEVMS) and 7 in Richmond (0.78% of the glances to CEVMS). All of the glances greater than 1 seconds were to CEVMS.

The full study can be viewed at

A shorter article about its highlights can be found at

Additionally, Texas A&M specifically studied EMCs and “before” and “after” traffic-accident data in 2012. For that full story, go to|/universitiesblog

Similarly, in 2010, Tantala Associates, a consulting/engineering firm, conducted its fourth study about the relationship between traffic accidents and electronic signage on billboards. Most recently, Tantala examined eight years of law-enforcement records that documented 35,000 traffic accidents on state and local roads around Reading, PA, to determine accident rates near 26 digital billboards. For the first time, the Empirical Bayes Method predictive tool was used to determine if accidents near digital billboards are inconsistent with what is statistically predicted. The answer: Digital billboards are “safety neutral.”

In 2008, Tantala investigated more than 60,000 traffic accidents in Cuyahoga County (Cleveland) Ohio for an eight-year period, before and after EMC billboards were installed. Accidents in the county, as a whole, had decreased in the last four years. Accidents where digital billboards were visible also decreased.

In Rochester, NY, Tantala reviewed police records documenting 18,000 traffic accidents that occurred within a mile of digital billboards over a five-year period, and in Albuquerque, it reviewed police records documenting traffic accidents that occurred within a mile of 17 digital billboards over a seven-year period. The studies showed no statistical correlation between digital billboards and accidents.

The January 7, 2014 edition of The Hill, a Washington, DC newspaper, included the following:

“Drivers are not distracted by digital billboards alongside roads, according to a study conducted by the Dept. of Transportation. The study, which was released by the Federal Highway Administration (FHWA), found that drivers are not any more likely to be distracted by digital billboards than stationary signs.

‘On average, the drivers in this study devoted between 73% and 85% of their visual attention to the road ahead for both (CEVMS) and standard billboards,” the study said. “The range is consistent with earlier field-research studies. In the present study, the presence of CEVMS did not appear to be related to a decrease in looking toward the road ahead’.”

How Do to “Impulse” Buys Relate to Signs?

An “impulse” purchase is distinguished from a “destination” purchase. If you get into your car to specifically go to the hardware store, everything you buy there is a “destination” purchase because it’s why you drove your car. However, if, on your way home, you see a convenience-store sign that says “All two-liters $1,” and you stop to buy some, that’s an impulse buy. You made the purchase on impulse, and the sign’s information compelled you to stop and make the purchase.

How important are impulse buys to various businesses? You probably never saw a sign for a dentist’s office and decided to drop in. But if you’re traveling, unless you already have a reservation to lodge and/or eat, virtually every “stop” would be an impulse buy. You wouldn’t know to stop unless a sign informed you about available goods and/or services.

The Institute of Traffic Engineers estimates the following to represent impulse buys as a percentage of overall sales for various retail categories:

For a discussion about how a court case highlighted the effects of signs and impulse buys, see the entry in this section entitled “What happened in the Denny’s v. Agoura Hills Pole-sign case?”.

Do Signs Help Non-profit Charities Raise More Money?

A Goodwill Industries store in Sarasota, FL was underperforming, even though it was located at an intersection through which 100,000 vehicles traveled on a daily basis. Other entities at the same intersection included a Wal-Mart, a Home Depot, a chain motel and a hospital/medical complex.

Unfortunately, a canopy of trees blocked the Goodwill’s wall sign, and a Sarasota ordinance forbade tree removal.  The Goodwill store’s administrator had a county commissioner ride with him in a car, and the commissioner acknowledged that both the building and signage were obscured. A variance was granted, and one sign was moved to a more visible location, which was better, but still less than ideal.

The results?
Typical monthly donations had been 309. After the sign was moved, these increased to an average of 424, a 37% increase. Typical sales had been $4160 per month. After the sign was relocated, the average became $5215, a 25% increase.

How quickly did this occur?
In the first week, donations increased by 2.8%, and sales increased by 6.5%. In Week 2, donations increased by 36.9%, and sales increased by 28.2%. By Week 5, donations had risen by 45.0%, and sales jumped by 25.8%. Overall, in the first year, donations increased by 45.5%, and sales rose by 22.8%.

What about adding an electronic billboard to a non-profit?
The Community Foundation for Greater New Haven (CT) hosts a 36-hour online fundraiser called the Great Give®.  To bolster its 2015 campaign, this consortium of more than 300 local charities purchased  month-long advertising (several times per day for 10 seconds) on an electronic digital billboard located near a confluence of I-91 and I-95, where (fortunately for the charity), traffic congestion is common.

The results?
Money raised from the prior year increase by 65% to $1.3 million, whereas the original goal for the year had been $1 million. More than 7000 donors provided more than 9600 gifts.

Read the Full Story

SGIA Journal’s January/February Issue Features FASI Article on the Reed v. Gilbert Aftermath

Wade Swormstedt, the Executive Director for FASI, wrote an article for the SGIA Journal’s January/February 2017 issue entitled “Content Neutrality and Signs: The Reed v. Gilbert decision and the aftermath.” Although the actual article is only available online to subscribers, the basic copy is presented here.

On June 18, 2015, the Supreme Court of the United States (SCOTUS) unanimously agreed that a Gilbert, Arizona sign code violated the First Amendment freedom-of-speech rights of Rev. Clyde Reed and his Good News Community Church. The decision potentially made virtually all U.S. sign codes unconstitutional because of the concept of “content neutrality,” which concerns the regulation on signs based on what they say. Reed v. Town of Gilbert is undoubtedly the most important sign-related court case of the past 35 years.

The background

Rev. Reed’s church held its Sunday services at different facilities, so it needed temporary signs each week to announce the location and time of its service. The signs would be posted on Saturday and removed on Sunday. The Town of Gilbert cited him for exceeding the time limits in 2005. Reed filed suit, based on freedom-of-speech issues.

Between 2005 and the SCOTUS decision, of course, several of Reed’s appeals were turned down. A group called Alliance Defending Freedom took up Reed’s cause. (A more complete report on the entire sequence of events, in addition to some commentary from Cleveland State University law professor Alan Weinstein, was published in the August 2015 issue of Signs of the Times magazine. It can be read online in a digital edition at

SCOTUS Justice Clarence Thomas noted the town exempted 23 categories of signs from needing permits. Three of these categories were Ideological Signs, Political Signs and Temporary Directional Signs Relating to a Qualifying Event (which characterizes Reed’s signs). Ideological signs could be a maximum of 20 square feet, with no time limits. Political signs could be 16 square feet (on residential property) or 32 square feet (otherwise) with a time limit of 60 days prior and 15 days after an election. The temporary directional signs were limited to 6 square feet with a 13-hour time limit (12 hours before and 1 hour after the event).

Verbatim excerpts from the Thomas opinion are as follows:

“On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.” (The 1980 Central Hudson SCOTUS case established the “strict scrutiny” requirement that states governmental restrictions are permissible if the governmental interest is “substantial,” if the restriction “directly advances” the governmental interest, and if the restriction is no more extensive than necessary.)

Thomas continued, “The restrictions in the Sign Code that apply to any given sign thus depend entirely (emphasis added) on the communicative content of the sign.”

What this means for sign codes

In other words, SCOTUS clearly showed that signs can’t be regulated differently, based on their content. Quite often, the definitions in a sign code are more important than the regulations themselves. Typically, these definitions are fraught with discrimination. A red flag should arise when any sign code has dissimilar regulations for such things as political signs, real-estate signs, religious-organization signs, etc. The ONLY way to distinguish these signs is the CONTENT; thus, dissimilar regulations favor one type of speech over another.

In contrast, a sign code that stipulates different regulations for banners, projecting signs, freestanding signs, etc. IS content neutral, because the message on the sign isn’t a factor.  As SCOTUS Justice Samuel Alito cautioned, in a concurring opinion, “This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.”

Additionally, most sign codes violate the content-neutral concept much more for temporary signs than for permanent signs. Additionally, while temporary signs are already difficult to regulate, the more restrictive the regulations for permanent signage, the more likely that people will resort to using more temporary signs, which exacerbates the temporary-sign conundrum.

Planners’ reactions

Expectedly, the Reed decision immediately caught the attention of city planners — the people who write local sign codes. The American Planning Association (APA), which has more than 35,000 members, held its annual National Planning Conference in April 2016. Planners deal with myriad civic issues, so signs are typically a very minor, yet often perplexing, concern. The annual APA conference typically offers more than 150 sessions, and only 1-3 are related to signs.

However, the 2016 conference’s April 4, 10:30 am session, entitled “Regulating Signs after Reed v. Town of Gilbert,” attracted more than 500 people and ranked #4 out of the 170 sessions, reported Professor Weinstein, who was one of the four speakers in the session. James Carpentier, who serves as the manager of state and local government affairs for the International Sign Association, was instrumental in having the session placed on the docket. He served as the moderator of the session.

Another speaker, Wendy Moeller, formerly served as president of the Ohio chapter of the APA. Last year, Moeller conducted a survey of cities nationwide and produced a report called Best Practices in Regulating Temporary Signs. (Her full report, as well as an executive summary of it, can be found on The Signage Foundation website ( In the aftermath of Reed, Moeller revised the study and co-authored, with Professor Weinstein, “Practice: Temporary Signs,” in the February 2016 issue of Zoning Practice.

Writing sign codes presents numerous obstacles for city planners, because the vast majority never received any collegiate instruction related to signage. Thus, planners typically seek existing sign codes, at least as a starting point, to write their own codes. But, as a subset of overall sign codes, the regulation of temporary signs is even more challenging, thus Moeller’s research provides some guidance in two ways.

Court reactions

In its May 2016 online edition, the Harvard Law Review, in an article entitled “Free Speech Doctrine After Reed v. Town of Gilbert, wrote, “In Thomas v. Schroer,79×79. 116 F. Supp. 3d 869 (W.D. Tenn. 2015). the District Court for the Western District of Tennessee found that a sign code distinguishing between off-premises and on-premises signs was content based.” HLR continues by saying the federal government is worried enough about Reed that it filed an amicus curiae (“friend of the court”) brief with regard to the Federal Highway Administration’s Highway Beautification Act (HBA), which has governed billboards within 660 feet of the federal highway since 1965 in various iterations. Such briefs offer related perspective to a case in which the provider isn’t directly involved. HLR said a challenge to the HBA is “inevitable.”

In Springfield, Illinois, a prohibition of pan-handling signs had been upheld. After Reed, the decision was overturned by the same court. HLR wrote, “Rather than limiting the amount of protected speech subject to government regulation, Reed requires legislatures to regulate all speech in order to regulate any speech.” In other words, cities may subsequently be more restrictive of ALL signs in order to not be too restrictive on a few.

Soon after the decision, an August 15, 2015 New York Times article stated, “The court struck down a South Carolina law that barred robocalls on political and commercial topics but not on others. Last week, a federal judge in New Hampshire relied on Reed to strike down a law that made it illegal to take a picture of a completed election ballot and show it to others.”

End users’ reactions

In the shadow of Gilbert, the city of Chandler was sued in August 2016 by the Goldwater Institute, which is currently representing five businesses, including three shopping centers. Although the suit stemmed from a dispute about setback and property lines, it blossomed into a broad-based, legal challenge holding that Chandler’s sign code is “impermissibly vague” and alleging that it “imposes an unconstitutional prior restraint and is unequally and arbitrarily applied.” It specifically references Reed v. Gilbert and says Chandler’s sign code imposes different rules based on signs’ “communicative content.”

The Goldwater Institute website explains: “The City of Chandler—right next door to Gilbert— imposes different rules for signs based on what they say, and who is saying it, in direct contradiction to the Supreme Court’s Town of Gilbert ruling. Chandler’s sign code forbids some signs, requires permits for others, and allows still others without any permit—all depending on what signs say. The code divides signs up into 11 different categories based on the messages they convey, and imposes different size and location requirements to the different categories. Thus no permit is required for “political signs,” “grand opening signs,” or “residential real estate” signs, but a permit is required for “development signs,” “subdivision direction signs,” and “non-residential real estate signs.”

Meanwhile, in nearby Tucson, the 1985 sign code will probably be significantly revamped early in 2017. Changes in definitions based on content neutrality are likely to occur, but the triumvirate of Dark Skies, the Sierra Club and Scenic Arizona are resisting any changes. In the interim, a sign company trying to retrofit a legal, nonconforming, fluorescent sign with an electronic message center (EMC) is being denied. EMCs are allowed in the sign code.

Less than a month after the Reed decision, three counties in the metro Atlanta area – Cherokee, Forsyth and Hall –ad opted moratoriums so they could re-examine their sign codes. Similarly, in Garfield Heights, OH, the Supreme Court reversed a pre-Reed decision that had sided with the city, concerning the removal of a sign, placed on a lawn, that criticized a local councilwoman. In Norfolk, VA, Central Radio Co. revised its suit against the city, which had demanded that Central Radio remove a sign that criticized the city for enacting eminent domain and taking its property.

The general aftermath

Robert Niles, writing for Bloomberg BNA’s The United States Law Week (April 18, 2016 edition), said, although Reed could conceivably be interpreted to mean that strict scrutiny (which stems from Central Hudson) would apply to all speech, lower courts were still making a distinction between commercial and non-commercial speech, and applying intermediate scrutiny to commercial speech.

He writes: Nowhere in Reed does the court suggest that it intended to upset commercial speech doctrine: Reed doesn’t discuss Central Hudson or other of the court’s commercial speech cases.”

Niles continues: “Though Reed will certainly have substantial impact on free speech doctrine in challenges to regulations of non-commercial speech, the first wave of lower-court decisions suggests that reports of the death of government regulatory power in the face of First Amendment challenge after Reed were greatly exaggerated.”

In other words, cities, although reticent at first, will continue to write sign codes with whatever level of restriction they prefer, but they will have to be more careful. Instead of defining signs by content, they will probably define them by physical characteristics. This doesn’t, in any way, infringe free speech.

Again, the general fear for the sign industry is that cities, worried about being inconsistent, will simply place restrictions on ALL signs.


The Goldwater Institute has produced an article called “Heed Reed,” with a subtitle of “Guideposts for Amending City Sign Code’s.” The 2600-word document can be obtained from the institute. Here are its summary suggestions for establishing sign codes post-Reed.

“In light of Reed and changes in state law, local sign codes around the state must be revised. Doing so need not be difficult, so long as the guidelines set out in this report are followed. Following these guidelines will not only protect free speech, but will also lead to simpler sign codes that are easier to follow and enforce, and protect taxpayers from costly and time-consuming lawsuits.

·         If a sign code requires enforcement officers to read a sign to determine whether it violates the code, the code is probably content based and violates the First Amendment.

·         Commercial messages cannot be treated differently than other types of messages.

·         Signs must be allowed in public rights-of-way.

·         Sign walkers cannot be restricted from holding up signs on public sidewalks.

·         Sign codes must be easy to understand, and (a) clear standards that do not allow enforcement officials to pick when to enforce the restriction, (b) a definite time limit within which a permit will be granted or denied, and (c) an opportunity for meaningful judicial review in the event the permit application is denied. Cities should avoid permit requirements whenever possible.

·         If a municipality determines that removing or allowing a particular sign is integral to traffic safety, it must provide clear evidence that justifies its determination.”