Loring v. Bellsouth Advertising & Pub. Corp., 70673

Decision Date05 December 1985
Docket NumberNo. 70673,70673
Citation177 Ga.App. 307,339 S.E.2d 372
CourtGeorgia Court of Appeals
PartiesLORING v. BELLSOUTH ADVERTISING & PUBLISHING CORPORATION.

Ralph S. Goldberg, Atlanta, for appellant.

R. Phillip Shinall III, Decatur, for appellee.

SOGNIER, Judge.

Gene Loring, d/b/a Christopher's Kind Bookseller, brought this action against BellSouth Advertising & Publishing Corporation (BA & P) seeking, inter alia, injunctive and declaratory relief from BA & P's refusal to accept for publication in its classified advertisement directory ("yellow pages") Loring's advertisement which contained the words "lesbian" and "gay male." A temporary injunction was issued by the trial court and then later dissolved following an evidentiary hearing. The issue of declaratory relief was then submitted to the trial court for decision on the basis of the record and without the intervention of a jury. The trial court rendered its judgment in favor of BA & P and Loring appeals.

The trial court found that appellee, a Georgia corporation, is a wholly owned subsidiary of BellSouth Corporation (BellSouth) which is also the parent corporation of Southern Bell Telephone and Telegraph Company (Southern Bell). Southern Bell is a public utility which enjoys a monopoly in local telephonic communication and is regulated by the Georgia Public Service Commission (PSC). Southern Bell published both the white and the yellow pages directories until the breakup of A.T. & T. in January 1984 at which time appellee assumed the publication duties pursuant to a written agreement between it and Southern Bell. Appellant's bookstore, which opened in 1980 was contacted that same year by a representative of Southern Bell about advertising in its yellow pages. Although Southern Bell rejected a draft advertisement from appellant at that time, appellant was again contacted in 1981 and, after the Southern Bell representative obtained specific authorization, Loring's advertisement was accepted by Southern Bell. The text of the advertisement as published is as follows:

CHRISTOPHER'S KIND BOOKSELLER

Lesbian and Gay Male Literature

Periodicals, Cards and Records, etc.

together with the address and telephone number of the store. For the next three years this advertisement was run in the yellow pages under the heading "Book Dealers--Retail." The cost for such advertisement was billed to appellant each month on his telephone service bill; there is no evidence that such cost has not been timely paid.

In May 1984, appellee notified appellant that his advertisement would not be accepted for the 1984-1985 yellow pages directory, so long as it contained the words "lesbian" and "gay," because the advertisement was said to violate the "Yellow Pages Standards (Ethics)." Section 5.26 of such policy is as follows: "The Company may determine, as a matter of policy, not to accept advertisement with respect to homosexuals on the grounds that to do so may at this time be offensive to a segment of its directory users who fully utilize the telephone and directory as a means of communication." The ethics policy in question is identical to the ethics policy of Southern Bell in effect at the time appellant's advertisement was first accepted and published. The trial court found that appellee's ethics committee made an internal business decision to reject advertisement concerning homosexuals, including appellee's advertisement on the rationale that "such an advertisement may be considered controversial by, or may offend, a certain segment of its customers." Appellee also asserts this standard seeks to uphold the prestige of its directory. Appellee admits that in the three years in which the advertisement has run in the Southern Bell published yellow pages directory, not one complaint from the public or a customer has been received.

The threshold issue in this case is whether appellee's directory publication business is that of a private enterprise with an unqualified right to reject appellant's advertisement or that of a public enterprise subject to public regulation by the courts in its business decisions regarding the advertising it will accept. We agree with the trial court's finding that appellee is a private enterprise. As noted by the trial court, Southern Bell and appellee are both wholly owned subsidiaries of BellSouth but while Southern Bell is a public utility, appellee is not a public utility and its connection with Southern Bell is not enough in itself to make the service appellee provides necessarily a public service. See Ga. Power Co. v. Ga. Public Svc. Comm., 211 Ga. 223, 228, 85 S.E.2d 14 (1954). While the PSC requires alphabetical listing of telephone numbers in the white pages be published and regulates the publication of the white pages as being within the realm of Southern Bell's responsibilities as a public utility, it is uncontroverted that the PSC does not require Southern Bell to publish a yellow pages directory and does not regulate any phase of appellee's yellow pages directory publication business. Although appellant argues, and the trial court noted, that "[f]or all practical purposes, if not for all purposes, there is no other 'yellow pages' publication which services the City of Atlanta" and that four out of five adults use appellee's directory in the metro Atlanta market, appellee does not have a monopoly in the directory publication business as demonstrated by evidence in the record that any and all businesses interested in entering the market for these directories have equal access to all phases of the business, including equal access to the type of licensing agreement between appellee and Southern Bell regarding telephone number lists. Appellee is operating in a competitive market, and while we recognize the difficulty a fledgling business may experience in entering that market in competition with appellee because of the public's familiarity with appellee's directory and appellee's advantage in being able to utilize the distribution system set up by Southern Bell for its white pages, those advantages do not convert appellee's private enterprise into a public enterprise. Appellee's position in its market is comparable to that held by an editor-owner in a one-newspaper town and its business decisions are no more subject to public regulation than those decisions of its marketplace competitors.

We also find support for our determination that appellee's directory publication business is a private enterprise in Southern Bell v. C & S Realty Co., 141 Ga.App. 216, 221, 233 S.E.2d 9 (1977), overruled on other grounds Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga.App. 747, 752, 266 S.E.2d 531 (1980), where we stated: "Since publication of the yellow pages is apart from Southern Bell's public service it may relieve itself by valid contract from liability for ordinary negligence, and such an agreement is not void as against public policy. [Cits.]" (Emphasis supplied.) While this language is fairly classified as dicta, we subsequently cited it with approval in the whole court case of Southern Bell v. Coastal Transmission Svc., 167 Ga.App. 611, 612 (1b), 307 S.E.2d 83 (1983).

We agree with the trial court that appellee, in publishing the yellow pages directory, is a private enterprise and does not perform an essential public service, and thus appellee has no statutory or common law duty to accept the advertising submitted by appellant. While appellant articulately argues that appellee's rejection of his advertisement because some directory users might be offended is unreasonable in view of the total absence of complaints over a three-year period and appellee's inclusion in its directory of advertisements for massage parlors, escort services and abortion clinics, as judges we cannot interject our personal response to appellee's decision but instead must address the legal issues before the court and apply the applicable standard of review. Thus, we are bound by the trial court's findings if there is "any evidence" to support them, see Logan Paving Co. v. Massey-Ferguson Credit Corp., 172 Ga.App. 368, 370, 323 S.E.2d 259 (1984), and because there was some evidence to support the trial court's findings that appellee is a private enterprise and that appellee rejected appellant's advertisement for a rational business reason, the trial court's judgment is affirmed.

Judgment affirmed.

BANKE, C.J., BIRDSONG, P.J., and CARLEY, and BENHAM, JJ., concur.

BEASLEY, J., concurs in the judgment only.

DEEN and McMURRAY, P.JJ., concur specially.

POPE, J., dissents.

DEEN, Presiding Judge, concurring specially.

" 'Let your fingers do the walking' is a commercial jingle urging use of the yellow pages of telephone directories. That such classified sections are regarded as valuable by business is shown in the instant case." (Emphasis supplied.) F.N. Roberts Corp. v. Southern Bell Tel. etc. Co., 132 Ga.App. 800, 209 S.E.2d 138 (1974). See also Discount Fabric House v. Wis. Tel. Co., 117 Wis.2d 587, 345 N.W.2d 417 (1984), where it was pointed out that this service is of "essential importance to the public." (Emphasis supplied.) In another exemplary case, which highlights judicial deference to an exercise of broad discretion, an advertiser, with an AAA alphabetic and almost addictive alliterative affliction or affinity analysis, actually attempted to attain, achieve and accomplish arithmetically an acme, apex, and alpha position in the directory by adding twenty-three A's to form its name. AAAAAAAAAAAAAAAAAAAAAAA v. Southwestern Bell Tel. Co., 373 P2d 31 (Okl.1962).

1. There seems to be no dispute that the threshold question in the instant case concerned classifying publication of the yellow pages as a purely private enterprise or as a matter connected with the telephone company's responsibilities as a public utility. The appellee correctly notes that if its publication of the yellow pages is a matter...

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