The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS COMPLAINT JURISDICTION; ORDER FOR LACK OF SUBJECT MATTER ; REFERRING MATTER FOR MANDATORY SETTLEMENT CONFERENCE
Docket 186 and businesses involved in the local search industry, filed the instant action against Defendants City and County of San Francisco, the Board of Supervisors of San Francisco and Mayor Edwin M. Lee (collectively, "the City" or "Defendants"), to challenge the constitutionality of City Ordinance 78-11 ("Ordinance"). The Ordinance proposes to restrict the distribution of Yellow Pages telephone directories in the interest of reducing environmental waste. for Lack of Subject Matter Jurisdiction. Dkt. 186. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion for the reasons set forth below. The Court, in its discretion, finds this matter suitable for 26 resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
Plaintiff Local Search Association ("LSA"), a trade association comprised of publishers The parties are presently before the Court on Defendants' Motion to Dismiss Complaint
On May 19, 2011, the Board of Supervisors passed the Ordinance, which created the 3Yellow Pages Distribution Pilot Program ("Pilot Program"). The Pilot Program purports to 4 regulate the distribution of commercial telephone directories, such as the Yellow Pages, for a 5 three-year period beginning May 1, 2012.1 The Ordinance requires Yellow Pages publishers to 6 deliver directories only to San Francisco residents and businesses who have requested them or 7 who accept delivery in person. S.F. Environment Code § 2103. The San Francisco 8 Department of the Environment is charged with implementing the Ordinance. Id. § 2106. The 9 Ordinance was originally set to take effect on May 1, 2012, but has never been implemented. 10 Id. § 2109.
constitutional violations of the First Amendment, the Equal Protection Clause of the Fourteenth 13
Amendment, the Supremacy Clause, and similar violations of free speech and equal protection 14 under the California Constitution. On September 1, 2011, LSA filed a motion for preliminary 15 injunction to enjoin the Ordinance, claiming that it has, and will, likely cause irreparable 16 financial harm by depriving its members of, among other things, their free speech rights. Dkt. 17
48. Before the hearing on the motion transpired, however, the City indicated that it was 18 voluntarily postponing enforcement of the Ordinance until thirty days after the Ninth Circuit 19 issued its ruling in Dex Media West, Inc. v. City of Seattle, a case which also involves an 20 analogous municipal ordinance restricting the distribution of the Yellow Pages. No. 11-35399 21
(9th Cir. filed May 11, 2011); No. 11-35787 (9th Cir. filed Sept. 21, 2011).
On October 15, 2012, the Ninth Circuit issued its decision in Dex Media West, Inc. v. 23City of Seattle, 696 F.3d 952 (9th Cir. 2012), which invalidated the Seattle ordinance on the 24 ground that it violated the publisher-plaintiffs' First Amendment rights. In reaching its 25 decision, the Ninth Circuit held that Yellow Pages telephone directories qualified as protected 26 speech under the First Amendment and therefore the ordinance was subject to a strict scrutiny sections 2101 to 2108.
On June 7, 2011, LSA filed suit against the City, pursuant to 42 U.S.C. § 1983, alleging
1 The Ordinance is codified at Chapter 21 of San Francisco Environment Code,
1analysis. Id. at 965-66. In recognition that the Ordinance would not pass muster under Dex
Media, the City amended the San Francisco Environment Code by adding section 2109, which 3 suspends implementation of the Ordinance. This section, approved by Mayor Lee on 4
December 7, 2012, provides as follows: 5
SEC. 2109. SUSPENSION OF YELLOW PAGES DISTRIBUTION PILOT PROGRAM
(a) Chapter 21 of the San Francisco Environment Code,
Sections 2101 through 2108, is suspended. During the period of suspension, Chapter 21 shall have no force or effect and shall not
(b) In the event that, upon further proceedings in Dex Media
West, Inc. v. City of Seattle, the United States Court of Appeals for the Ninth Circuit or the Supreme Court of the United States finally
holds that the City of Seattle's restrictions on the distribution of Commercial Phone Directories are consistent with the First
Amendment to the United States Constitution, then the suspension of Chapter 21 shall be lifted one year from the date the mandate
(c) In the event that the suspension of Chapter 21 is lifted as described in the foregoing subsection ...