Dex Media West Inc. v. City of Seattle

• Citation: 793 F.Supp.2d 1213,39 Media L. Rep. 2660
• Decision Date: 28 June 2011
• Docket Number: Case No. C10–1857JLR.
• Parties: DEX MEDIA WEST, INC., et al., Plaintiffs,v.CITY OF SEATTLE, Defendant.
• Court: U.S. District Court — Western District of Washington

793 F.Supp.2d 1213

39 Media L. Rep. 2660

DEX MEDIA WEST, INC., et al., Plaintiffs,

v.CITY OF SEATTLE, Defendant.

Case No. C10–1857JLR.

United States District Court, W.D. Washington,at Seattle.

June 28, 2011.

Kathleen M. O'Sullivan, Noah G. Purcell, David J. Burman, Perkins Coie, Seattle, WA, for Plaintiffs.Gregory Colin Narver, Seattle City Attorney's Office, Jessica L. Goldman, Molly A. Terwilliger, Summit Law Group, William C. Foster, Seattle City Attorney, Seattle, WA, for Defendant.

ORDER

JAMES L. ROBART, District Judge.

I. INTRODUCTION

This matter comes before the court on Plaintiffs Dex Media West, Inc. (“Dex”), SuperMedia, LLC (“Supermedia”), and Yellow Pages Integrated Media Association's (“YPA”) (collectively “Plaintiffs”) motion for partial summary judgment with regard to their claims under the First Amendment and the Commerce Clause (Dkt. # 14) and Defendant City of Seattle's (“City”) cross-motion for partial summary judgment with regard to the same claims (Dkt. # 28) filed in response. Having reviewed the submissions of the parties, the relevant law, and having heard oral argument on July 7, 2011, the court DENIES Plaintiffs' motion and GRANTS Defendant's cross-motion for partial summary judgment.¹

II. BACKGROUND & FINDINGS OF FACT

A. The Ordinance

Over a period of six public meetings, between June and October 2010, the City heard testimony from residents who were frustrated by the delivery of unwanted yellow pages directories to their homes. (Rasmussen Decl. (Dkt. # 30) ¶ 4.) Many of these deliveries occurred despite residents' requests under Plaintiffs' opt-out services that Plaintiffs cease delivery of the yellow pages directories to particular residents' homes. ( Id.) Residents complained that these unwanted deliveries violated their right to privacy and pointlessly generated large amounts of waste. ( Id.; see also O'Brien Decl. (Dkt. # 32) Ex. 2 (attaching copies of complaints emailed to the City).)

In October 2010, the City enacted Ordinance 123427, which bans the distribution of “yellow pages phone books” in Seattle unless telephone phone book publishers meet certain conditions. First, phone book publishers must “obtain[ ] an annual yellow pages phone book distributor license,” “separate from and in addition to ... the business license required pursuant to [SMC] chapter 5.55.” SMC 6.225.030.² Second, publishers or “distributors” must pay the City 14 cents “for each yellow pages book distributed within the City.” SMC 6.255.100(A).³ Third, publishers must “prominently and conspicuously display on ... the front cover of each yellow pages phone book distributed within the City” and “on their websites” a message mandated by the City about the City's program for opting out of receiving phone books. SMC 6.255.110. Finally, the Ordinance creates an “Opt–Out Registry ... for residents and businesses to register and indicate their desire not to receive delivery of some or all yellow pages phone books.” SMC 6.255.090(A).

The Ordinance defines a “[y]ellow pages phone book” as “a publication that consists primarily of a listing of business names and telephone numbers and contains display advertising for at least some of those businesses.” SMC 6.255.025(D). “Distribution” is defined to mean “the unsolicited delivery of more than four tons annually of yellow pages phone books to the addresses of residents and businesses within the City, but does not include the delivery of yellow pages phone books by membership organizations to their members or to other outside residents or businesses requesting or expressly accepting delivery.” SMC 6.255.025(B). “Membership organization” is defined to mean “an organization that is organized and operated primarily or exclusively for the purpose of providing services or benefits to a designated group of members (identified, for example, by having to pay membership dues or participating in membership events).” SMC 6.255.025(C).

Three purposes motivated the City in its decision to enact the Ordinance: waste reduction, protection of residents' privacy from unwanted intrusions, and the recovery of costs incurred to maintain and enforce the opt-out registry. (Mullins Decl. (Dkt. # 17) Ex. A, Preamble to Ordinance; Third Rasmussen Decl. (Dkt. # 52) Ex. 9.) The Ordinance took effect in mid-November, 2010. ( See Third Rasmussen Decl. Ex. 9.) As of May 12, 2011, City residents had made 136,651 opt-out requests through the City's opt-out system—averaging 17,081 new opt-outs per day. (Second Teller Decl. (Dkt. # 71) ¶ 2.)

B. Yellow Pages Phone Books

Washington requires local exchange carriers (“LECs”), such as Qwest and Verizon, to publish and distribute residential and business listings, as well as certain other consumer information. See WAC 480–120–251. Neither Dex nor SuperMedia are LECs. (Norton Decl. (Dkt. # 18) Ex. A. ¶ 9.) Nevertheless, Dex contracts to publish directories that satisfy these requirements on behalf of Qwest, while SuperMedia does the same on behalf of Verizon. ( Id.) Directory companies, such as Dex and SuperMedia, do not charge residents or businesses for this service. ( Id. ¶¶ 12–13.) Dex and SuperMedia utilize advertising to defray the cost of printing and distribution. ( Id. ¶ 17.)

The directories published by Dex and SuperMedia are commonly called “yellow pages.” ( Id. ¶ 7.) The contents of a yellow pages directory typically include a business “white pages” section, providing the names, addresses, and telephone numbers of local businesses and professionals. ( See Stonecipher Decl. (Dkt. # 19) ¶ 5.) The Dex 2010 Seattle Metro Directory contains 404 such pages. ( Id.) Further, a yellow pages directory typically contains a section of public-interest material such as community information, maps, and government listings. ( See id. ¶ 6.) The Dex 2010 Seattle Metro Directory contains nearly 100 pages of such information. ( See id.) Finally, the publication contains listings of businesses by category of product or service. ( See id. ¶ 5; Mot. (Dkt. # 14) at 6.) This section, which comprises 844 pages in the Dex 2010 Seattle Metro Directory, contains a significant amount of advertising. ( Id.; see also Dex 2010 Seattle Metro Directory ( see Dkt. 20, 22).) Although advertising can be found in every section of the Dex 2010 Seattle Metro Directory, including the front and back covers ( see id.; see also infra note 5), overall it typically comprises less than half of the content of a typical yellow pages directory (Norton Decl. ¶ 24). Display advertising, in-column display, coupons, and advertising on the cover and tabbed inserts comprise approximately 35% of the Dex 2010 Seattle Metro Directory. (Stonecipher Decl. ¶ 8.) Similarly, display advertising ranges from 15–35% of SuperMedia's Seattle area yellow pages directories. (Gatto Decl. (Dkt. # 16) ¶ 4.)

III. ANALYSIS & CONCLUSIONS OF LAW

A. Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets his or her burden, then the non-moving party “must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial” in order to withstand summary judgment. Galen, 477 F.3d at 658. In adjudicating cross-motions for summary judgment, the Ninth Circuit “evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir.2006) (citations omitted); see also Friends of Columbia Gorge, Inc. v. Schafer, 624 F.Supp.2d 1253, 1263 (D.Or.2008).

B. The City's Ordinance Does Not Violate the First Amendment

1. Yellow Pages Directories Are Commercial Speech

Plaintiffs allege that yellow pages directories constitute “fully protected,” noncommercial speech, entitled to the highest level of First Amendment protection, and that accordingly, the City's Ordinance which regulates the distribution of those directories violates the First Amendment. (Mot. at 11–15.) The degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). With respect to noncommercial speech, “content-based restrictions [are permitted] only in the most extraordinary of circumstances.” Id. However, “the Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.” Id. at 64–65, 103 S.Ct. 2875. “[C]ontent-based restrictions on commercial speech may be permissible.” Id. at 65, 103 S.Ct. 2875. Thus, the court must first determine the proper classification of the publications at issue. Are yellow pages directories commercial or noncommercial speech?

“Although the boundary between commercial and noncommercial speech has yet to be clearly delineated, the ‘core notion of commercial speech’ is that it ‘does no more than propose a commercial transaction.’ ” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 906 (9th Cir.2002) (quoting Bolger, 463 U.S. at 66, 103 S.Ct. 2875). The Supreme Court has defined commercial speech as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65...