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Tuesday, October 16, 2012 - Page updated at 10:00 p.m.

Appeals court rules against Seattle's curbs on yellow pages

By Emily Heffter
Seattle Times staff reporter

Seattle can't limit distribution of yellow-pages phone books with an opt-out registry, and it can't charge a fee to publishers who want to leave commercial directories on your porch, the 9th U.S. Circuit Court of Appeals ruled Monday.

More than 79,000 residents and businesses have signed up to opt out of yellow pages since the Seattle City Council voted two years ago to crack down on unwanted deliveries that piled up in people's recycle bins and apartment-building lobbies. To pay for the program, the city charged a $100 fee to each of the three companies that distribute the books in Seattle, plus a per-book charge and a disposal fee for unwanted directories that ended up at the recycling center.

The court ruled the city's law is unconstitutional, saying yellow pages are protected, like other publications, by the First Amendment.

"Although portions of the directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment," Judge Richard Clifton wrote in the decision. "As a result, when we evaluate the ordinance under strict scrutiny, it does not survive."

Phone-book companies say they offer their own opt-out systems. They are working with apartment-building management on better delivery, said Neg Norton, president of the industry group Local Search Association.

"You know," Norton said, "It's funny. We've had conversations with elected officials across the country who were considering similar types of legislation, and nobody's wanted to pass a bill like this ... once they hear about the things we're doing."

Norton says the yellow-pages industry is changing, using 50 percent less paper than five years ago. The directories are only 35 percent ads, he said. The rest is made up of maps, stadium seating charts, government information and other helpful public information, he said.

The city may appeal, said City Councilmember Mike O'Brien, who led the effort to crack down on phone books.

"I think comparing the yellow pages to The New York Times challenges most of our perception of what the yellow pages really are," he said. "I think the city clearly has a compelling government and public interest in regulating how the yellow pages are distributed."

The companies' opt-out lists don't work because they aren't well advertised or enforced, O'Brien said. His law required companies to advertise the city's opt-out registry on the cover of their yellow pages.

All nine council members eventually supported the phone-book ordinance, although Councilmember Jean Godden raised free-speech concerns.

Environmentalists joined O'Brien to push for regulation, and it became his signature effort as a new council member in his first term. As a publicity stunt at one point, O'Brien told people to bring their unwanted yellow-pages books to his office. He stacked them up around his staff's cubicles, pointing to them as proof of the need for the law. But they kept coming. And coming, by the hundreds. Finally, he put out the word: Take them somewhere else.

Emily Heffter: 206-464-8246 or eheffter@seattletimes.com. On Twitter @EmilyHeffter.

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