The Local Search Association, a trade group for the directory publishers, has challenged San Francisco's ordinance in court on First Amendment grounds.
The directories once could be found in most American homes and offices. But with the growth of the Internet and smartphones, the audience for the books has declined. While some people still rely on them, particularly in suburban and rural areas, many city residents view them as a nuisance, doomed to go straight into the recycling bin or left to languish on the curb.
“Large numbers of them get stacked outside of buildings and residents who don’t want the book just leave them sitting there, and sometimes they are there for weeks,” said David Assmann, deputy director of the San Francisco Department of the Environment. About 50 percent of the directories eventually are recycled, according to the department.
Industry representatives, however, maintain that customer preferences, not local governments, should decide if the directories still are needed. “Just let the marketplace take its course,” said Neg Norton, president of the Local Search Association. “If nobody uses these products anymore, then advertisers won’t advertise in them, and we won’t publish them anymore.”
Norton acknowledged that the Yellow Pages business is shrinking. The number of directory publishers in the United States has shrunk from about 230 five years to 180 today, he said. “People still use directories – not as much as they did five years ago, but they still use them,” he said.
Norton pointed out that the Local Search Association maintains a website where residents and business owners can register not to receive any Yellow Pages. Opting out of delivery can take up to 12 weeks, according to the site. Critics say the program is not well publicized.
Both San Francisco and Seattle sought to make it easier to avoid receiving unwanted directories.
In 2010, Seattle created an opt-out registry. As of Oct. 15, nearly 80,000 residents and businesses had submitted requests to cancel delivery, eliminating 436,000 directories and 400 tons of waste, according to the city. The ordinance also required publishers to obtain permits and pay a fee for each directory distributed in the city to finance the program.
But a three-judge panel from the Ninth Circuit Court of Appeals ruled that phone directories should not be treated differently from other types of media and are “entitled to full First Amendment protection.”
“We do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, and similar media,” the panel said in a unanimous opinion.
Seattle has requested that a larger panel of the Ninth Circuit review the case, and its program is continuing pending the appeal.
Some San Francisco officials have criticized the court’s decision, which would undermine San Francisco’s ordinance, too.
“This misreading of the First Amendment protects giant corporate polluters that litter our San Francisco doorsteps with 1.6 million unwanted Yellow Pages books every year,” said Supervisor David Chiu, who championed the San Francisco ordinance. “I think that it’s a decision that’s definitely ripe for dispute.”
Nevertheless, San Francisco’s pilot program will take effect only if future court rulings find that restrictions on the distribution of commercial phone directories are constitutional. San Franciscans will continue to pay for the disposal of directories that many residents and business don’t want.
“We’re talking about hundreds of thousands of books that weigh a couple of pounds each,” Assmann said. “That’s a lot of volume that is going into our recycling system that is, frankly, quite wasteful. It’s something that the ratepayers have to pay for, even though they have no say in it.”