Dex Media West Inc. v. City of Seattle

• Decision Date: 08 May 2011
• Docket Number: Case No. C10–1857JLR.
• Citation: 790 F.Supp.2d 1276,39 Media L. Rep. 2650
• Parties: DEX MEDIA WEST, INC., et al., Plaintiffs,v.CITY OF SEATTLE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

790 F.Supp.2d 1276

39 Media L. Rep. 2650

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

v.CITY OF SEATTLE, et al., Defendants.

Case No. C10–1857JLR.

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

May 8, 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 Defendants.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

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 (collectively “Plaintiffs”) motion for preliminary injunction (Dkt. # 41). Having reviewed the submissions of the parties and the relevant law, the court DENIES Plaintiffs' motion for preliminary injunction.¹

II. BACKGROUND & FINDINGS OF FACT

A. The Ordinance

Over a period of six meetings, between June and October 2010, Defendant City of Seattle (“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.) 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. Second, publishers must pay the City fourteen cents “for each yellow pages book distributed within the City.” SMC 6.255.100(A).² 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). 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.)

B. Yellow Pages Phone Books

Washington requires local exchange carriers (“LECs”) to publish and distribute residential, business listings, and certain 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, therefore, have turned to 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. (Stonecipher Decl. (Dkt. # 19) ¶ 5.) The Dex 2010 Seattle Metro yellow pages directory contains 404 such pages. ( Id.) Further, the publication contains listings of businesses by category of product or service. (S.J. Mot. (Dkt. # 14) at 6.) Unlike the white pages, this section contains a significant amount of advertising. ( Id.) Finally, a yellow pages directory contains a public-interest section that includes pages of community information, maps, and government listings. ( See Stonecipher Decl. ¶ 6.) The Dex 2010 Seattle Metro yellow pages directory contain nearly 100 pages of this type of public interest material. ( Id.) Ultimately, advertising 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 yellow pages 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. Preliminary Injunction Standards

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). To obtain a preliminary injunction, the moving party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24–25, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In addition, the Ninth Circuit has held that its “serious questions” version of the sliding scale test for preliminary injunctions “remains viable after the Supreme Court's decision in Winter,” and that this court may still apply that test. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir.2011). In so ruling, the Ninth Circuit formulated its revised sliding scale test as follows:

... [S]erious questions going to the merits, and a balance of hardships that tips sharply toward the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.

Id. at 1135. Thus, under either the four-part test in Winter or the sliding scale test formulated in Cottrell, Plaintiffs are required to demonstrate a likelihood of irreparable injury and that the injunction is in the public interest. Id.; Winter, 555 U.S. at 24, 129 S.Ct. 365.

The court finds the likelihood of irreparable harm and the public interest element to be central to its analysis here. In support of their motion for preliminary injunction, Plaintiffs assert two types of harm: Constitutional harm and monetary harm. ( See infra § III.C.) As discussed more fully below, although monetary harm alone is ordinarily insufficient to support the imposition of a preliminary injunction, Rent–A–Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir.1991), “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (internal quotation marks omitted). Further, courts have recognized a significant public interest in upholding First Amendment principles. Sammartano v. First Judicial Court, 303 F.3d 959, 974 (9th Cir.2002). Thus, the determination of whether Plaintiffs have demonstrated a likelihood of irreparable harm, as well as whether they have demonstrated that a preliminary injunction would be in the public interest, hinges in part on whether Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim. The court, therefore, turns to each of these three issues, beginning its analysis with Plaintiffs' likelihood of success on the merits of their First Amendment claim.

B. Likelihood of Success on the Merits of Plaintiffs' First Amendment Claim ³

The only substantive claim that the court finds necessary to consider in the context of this motion for preliminary injunction is Plaintiffs' claim that the Ordinance violates their First Amendment rights. As discussed below, the court's analysis of Plaintiffs' assertions (1) that they will suffer a likelihood of irreparable injury if a preliminary injunction is not imposed, and (2) that issuance of a preliminary injunction is in the public interest is tied in part to the court's analysis of Plaintiff's likelihood of success on the merits of their First Amendment claim. Therefore, thorough analysis of this claim is a prerequisite to the court's determination of Plaintiffs' motion for preliminary injunction. Because the court ultimately concludes that Plaintiffs fail to establish either a likelihood of irreparable injury or that a preliminary injunction would be in the public interest (both of which are required elements under either Winter or Cottrell ), it is unnecessary for the court to consider the likelihood of success on the merits of any of Plaintiffs' other substantive claims in the context of this motion.

1. Yellow Pages Directories Are Commercial Speech

Plaintiffs allege that because yellow pages directories are “fully protected” First Amendment speech, the City's Ordinance violates the First Amendment. (S.J. Mot. at 11.) 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...