Tag Archives: 9th Circuit U.S. Court of Appeals

Judgment Day for City of Seattle Opt-out Folly

Since the start of its October, 2010 efforts to implement a required opt-out program, despite the industry’s already established program, we have criticized the elected leaders of the city of Seattle –

  • November, 2010“ …this really isn’t an environmental move by the City of Seattle. Instead, it has become a clear attempt at cost shift and a political stepping stone for some Council members…”
  • July, 2011: “ …Lost in Seattle: Hello. Print Yellow Pages Aren’t Your Problem..”
  • August, 2011“Seattle Green Efforts Come Up Way Short”
  • October, 2012“..Take that Seattle. In a decision, which has been expected for some time, the 9th Circuit U.S. Court of Appeals released a unanimous decision today which holds that under the First Amendment, Yellow Pages directories are “fully protected speech” and not “commercial speech.” The appeals court determined that print directories are entitled to the same standards under the First Amendment as newspapers, magazines, etc. Needless to say, this is a major win for the industry..”

Despite the obvious stupidity of this effort, the leaders keep on pushing this needless waste of taxpayer funds.  We’ll now The Seattle Times reports that the city has tentatively agreed to pay $500,000 to yellow-pages phone directory publishers in a settlement, rather than continuing the fight to appeal a ruling that the city violated the publishers’ free-speech rights,

Initially, a U.S. District Court judge ruled in favor of the city’s position.  But a three-judge panel of the 9th Circuit, generally a very left-leaning court, sided with the yellow-pages publishers, ruling that the phone books are protected, like other publications, by the First Amendment.

The Local Search Association has repeatedly fought that the city opt-out registry wasn’t necessary because the publishers and Association had their own fully functional opt-out systems. But, city leaders lead by City Councilmember Mike O’Brien insisted on forging ahead with an opt-out registry for “unwanted phone books” and charged a $100 fee on each of the three companies that distribute phone books in the city. It also charged the companies for every book delivered, levied a fine of $125 for deliveries to households that had opted out.  And, to add insult to injury, the law required the publishers to advertise the city’s opt-out service on the cover of the yellow pages.

A suit then filed by Local Search Association, the Circuit Court of Appeals ruled in October that phone directories are protected by the First Amendment and that Seattle’s law regulating distribution of the yellow-pages directories was unconstitutional.

Now judgment day has arrived for the city as they will now need to pay $500,000 of taxpayer money to the industry.  City Councilmember Mike O’Brien, still refuses to admit the futility of this effort and said he couldn’t comment on negotiations to settle the lawsuit because they were still ongoing. He said the settlement agreement could also decide “the future of Seattle’s yellow-pages opt-out system.”  Gee, you think so?

As you would expect some of the city’s finest are reacting online.  Here is one of the few blog comments I could print:  “..let’s SUE and FINE Yellow Pages for LITTERING. Shoot them on site for trespassing…”.  So much for the civility these same people preach to us about.

As we noted in October, 2010:

“…What a shame. It didn’t have to be this way. A working process was already up and running. But that wasn’t enough for the greenies. Someone in big business had to be punished no matter the costs or the impact to taxpayers…”

My only question is whether City Councilmember Mike O’Brien and the other 7 elected officials who voted for this effort (only one Councilmember voted against the ordinance) will now be held responsible for reaping the taxpayers.  Somehow, I doubt it.

9th Circuit Strikes Down Seattle Yellow Page Opt-Out Ordinance

Take that Seattle.  In a decision, which has been expected for some time, the 9th Circuit U.S. Court of Appeals released a unanimous decision today which holds that under the First Amendment, Yellow Pages directories are “fully protected speech” and not “commercial speech.”  The appeals court determined that print directories are entitled to the same standards under the First Amendment as newspapers, magazines, etc. Needless to say, this is a major win for the industry.

We noted back in August 2011 that Seattle’s effort to force a city run opt-out program and recycling fees on yellow page publishers was both legally questionable and irresponsible especially since the industry had already initiated an opt-out program and website.  To compound matters, the city then sent out 280,000 post cards (or 4 TONS OF PAPER) to inform residents of this effort, none of which is believed to have been recycled.

The Local Search Association, which has fought a long, hard, expensive battle on behalf of its members is “extremely pleased to announce that a full victory has been achieved by our Industry”, and will now move quickly to bring this appeals court decision to the attention of the San Francisco U.S. District Court (which is also within the jurisdiction of the 9th Circuit) to vacate their opt-out program.

The Association believes the City of Seattle now has only two options:

  • The  City could seek a rehearing before the 9th Circuit U.S. Court      of Appeals.  However, in cases such as this where there is a unanimous decision, a rehearing is rare.
  • The City of Seattle could seek a review by the U.S. Supreme Court.

I think a third option would be for the city to apologize to the industry and all of their tax-paying residents for all of this nonsense and start working with the industry on ways to improve recycling rates.  But that probably won’t happen as several of the city leaders that championed this effort clearly have higher political office in mind.

Congratulations to the Local Search Association staff, and especially, Dex One and SuperMedia for fighting the war that needed to be fought….