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NEW FIGHT ON STREET CORNERS PITS CITIES AND PAPERS Newsracks are targets of efforts to clean up urban spaces, with costly results.

by Julius Duscha

Newspaper street sales have never been easy.

A century ago with the emergence of a popular press, publishers sometimes dispatched toughs to rough up newsboys hawking rival papers. Today's equivalent of newsboys -- newsracks or boxes -- are under attack by cities.

From San Francisco to Pittsburgh, mayors and city councils are trying -- or have tried -- to replace individual newsracks owned by papers with large city-controlled modular structures anchored to sidewalks and holding eight to 12 publications.

Newspapers are objecting and suing, invoking their First Amendment and 14th Amendment due process rights, and citing a 1988 U.S. Supreme Court decision recording that "liberty of circulation is as essential to [freedom of expression] as liberty of publishing; indeed without the circulation, the publication would be of little value."

Cities are arguing that all they are trying to do is clean up street clutter caused by the proliferation of individual newsracks. They cite the same Supreme Court case, which did uphold a Lakewood, Ohio, ordinance prohibiting newsracks in residential areas.

Also in the thick of the fight are such companies as City Solutions, Adshel Inc. and JCDecaux USA, which manufacture pedestal-mounted modular newsracks. They are approaching mayors and city councils with proposals that usually promise the structures free to cities in exchange for allowing the companies to sell advertising on the backs of them, and sometimes agreeing to share some of the profits from the ads with the cities.

Maintenance of the modular units is paid for by annual fees of perhaps $25 or $30 charged to newspapers for each space used in a unit.

Beyond constitutional issues, newsracks are important because they account for 47 percent of single-copy sales daily and 37 percent on Sundays, according to a 1996 survey by the Newspaper Association of America. The survey also found that all single-copy sales accounted for 22.7 percent of total daily circulation and 29.5 percent of Sunday circulation.

In addition to San Francisco and Pittsburgh, newsrack issues have surfaced in the last year or so in Boston, Atlanta, Cincinnati, Indianapolis, Chicago, Fort Worth and Salt Lake City. And you ain't seen nothing yet, says David Hughes, chief financial officer of City Solutions of Santa Barbara, Calif.: "Cities are sick of the racks. Citizens are also sick of them. Those cities will eventually prevail; the floodgates are really opening."

Many cities have ordinances regulating newsracks so that they do not interfere with pedestrian rights-of-way, fire hydrants, entrances to buildings and driveways. But in most cases there have been few efforts to enforce the regulations; cities have depended on newspapers to use common sense in positioning racks.

Today, the worst-case scenario is unfolding in San Francisco, where a new ordinance replacing a 1985 one restricts rack sales in the downtown area to modular units, controlled by the city. The best outcome so far has been in Pittsburgh, where the city and publishers have agreed on a Good Neighbor Program, giving publishers responsibility for controlling the placement and maintenance of newsracks.

Publishers in other cities can learn much from what has happened in both San Francisco and Pittsburgh.

$30,000 IN ANNUAL FEES The new San Francisco ordinance, approved in June by the city's Board of Supervisors, provides for the substitution of up to 1000 modular structures each holding eight to 12 publications for 12,000 free-standing racks, mostly in the downtown area of the city.

Advertising will be permitted on the backs of up to 450 of the structures.

The modular racks will be furnished -- free -- by Adshel Inc. of New York.

In fact, San Francisco may make some money off the venture -- the city's contract with Adshel provides that after five years, San Francisco will receive five percent of the annual advertising revenue above $2 million a year.

The placement of the modular structures will be determined by the city's Department of Public Works. The ordinance gives the director of the department, who is appointed by the mayor, sole discretion to establish the procedures and guidelines for granting permits to place newspapers in the modular structures. A publisher challenging a permit denial can appeal to a Newsrack Advisory Committee, appointed by the public works director but including newspaper representation -- but the committee is only advisory and can be overruled by the department.

The city will charge papers $30 a year for each rack position -- $30,000 annually to be in all 1000 racks.

Companies representing 10 publications are seeking a preliminary injunction in U.S. District Court to prevent enforcement of the ordinance. In addition to the morning San Francisco Chronicle and evening San Francisco Examiner (which depends on street sales for half its 113,000 circulation), the papers are USA Today, the New York Times, San Jose Mercury News, Los Angeles Times, Wall Street Journal, Barron's and two alternative free weeklies, the Bay Guardian and SFWeekly.

In the motion for an injunction, it is argued that the ordinance "is not a reasonable restriction narrowly advancing legitimate government interests, but an impermissible encroachment of First Amendment rights that serves to raise revenues for the city at the expense of daily and weekly newspapers."

NOT WRAPPED UP IN THE FIRST AMENDMENT' While newspapers in San Francisco are involved in a nasty fight with the city, in Pittsburgh the daily and weekly papers worked together to develop a Good Neighbor Program which the publishers' lawyer, Charles Kelly, describes as "designed to ensure that news and other information is distributed on the sidewalks of Pittsburgh in a manner conducive to public safety and an attractive urban environment."

The Pittsburgh solution provides that no newsrack will be placed within six feet of a fire hydrant or in a roadway, crosswalk, curb, driveway or bus loading or unloading zone. Furthermore, the agreement states that each newsrack will be maintained in good repair by the responsible publication, which also pledges to keep the racks and areas around them litter-free.

Finally, each newspaper must provide the Pittsburgh City Council and Department of Public Works with the name and telephone number of a representative who can respond to complaints.

The Good Neighbor Program was worked out by the city, eight publications and the Pennsylvania Newspaper Publishers Association after a city council member proposed a $25 newsrack registration fee and a $10 annual permit, and city officials suggested replacing some free-standing racks with modular structures on a trial basis. The papers involved are the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, USA Today, New Pittsburgh Courier, City Paper, In Pittsburgh, McKeesport Daily News and Pittsburgh Rental Guide.

"The Newspaper Task Force and its attorneys did not simply wrap themselves in the First Amendment, a strategy that can be self-defeating in the current climate of media antagonism," Kelly notes. "Rather, the task force aggressively raised and forcefully articulated economic concerns, including the large sums of money spent upon corporate identities through the brand names and color schemes on newsracks; the loss of single-copy sales, and the potential loss of jobs for newspaper distributors."

In Fort Worth, the Fort Worth Star-Telegram, Dallas Morning News, Fort Worth Weekly and other papers distributed in the city have drawn up a memorandum of understanding along the lines of the Pittsburgh program that would apply to the placement and maintenance of newsracks in downtown Fort Worth.

In Illinois, the Chicago Tribune, Chicago Sun-Times and other publications circulated in the Windy City reached an agreement with city officials to test modular newsracks at eight intersections in downtown Chicago. The structures were provided by JCDecaux USA, have places for eight publications and have some advertising on them.

This spring, a task force made up of representatives of newspapers, the city and neighborhood associations will evaluate the test and make recommendations to the mayor as to the future of newsracks in the city. The Chicago compromise came after publishers obtained a temporary restraining order last May preventing the implementation of a new ordinance banning individual newsracks along Michigan Avenue and State Street as part of a general beautification plan.

Modular structures are also being tested in Indiana's biggest city.

Indianapolis Downtown Inc. (IDI) contracted with City Solutions for 10 modular racks for holding six to 20 publications. They were put in place in November and will be evaluated in May by a 13-member task force that includes newspaper representatives, business leaders and city officials.

Helen Brown, director of management services for IDI, says surveys by her organization showed that 90 percent of the people questioned said they preferred the modular structures over individual racks because they are cleaner and neater. But Mike Womack, circulation vice president for the Indianapolis Star and Indianapolis News, says sales of his papers declined when a modular unit was substituted for newsracks in front of the papers' building.

"We are good neighbors," Womack adds. "We don't need more regulation and red tape. If a store owner or anyone else has a problem, we will deal with it."

In Atlanta, the Journal and Constitution obtained a preliminary injunction prohibiting the city from limiting the number of newsracks in Atlanta's Hartsfield Airport. The papers also objected to advertisements being placed on the racks. The court supported the papers' contention that requiring a paper to use newsracks with ads of another entity will violate a paper's First Amendment rights.

In Salt Lake City, a new ordinance provides that all newsracks must be black and that no additional newsracks can be placed in the central part of the city. In Boston, courts have upheld an ordinance banning newsracks in historic Beacon Hill. In Cincinnati, the city is considering limiting newsracks by installing interactive kiosks.

And newsrack controversies seem likely to spread, perhaps not as fast as the vendors of modular structures would like, but fast enough to cause lots of problems for publishers. Companies like City Solutions have produced colorful materials promoting their products and, although no publisher wants to say this out loud, there are growing suspicions that mayors and other city officials who have been criticized by papers look on rack regulation as a way to perhaps get even.

Also, despite the 1988 Supreme Court decision about "the liberty of circulation," there are no clear-cut legal solutions to the newsrack issue.

The position taken by USA Today, which is heavily dependent on newsrack sales, recognizes the ambiguities involved.

"USA Today has never taken the position that it should not be regulated," notes Alice Lucan, a USA Today lawyer who has tracked the issue for the paper since it started publishing in 1982. "This issue has been thoroughly litigated. There have been dozens of court cases. It is very clear that newspapers have a freely protective right to place newsracks, but cities also have the power to regulate reasonable placement and maintenance. But USA Today opposes the idea that all racks should look alike, and the transfer of newspapers' rights to a third-party vendor."

Yes, life was simpler when newsboys stood on corners shouting, "Wuxtra! Wuxtra!" even as they kept their eyes open for toughs from rival papers.
COPYRIGHT 1999 The Cole Group
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Copyright 1999 Gale, Cengage Learning. All rights reserved.

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Author:Duscha, Julius
Geographic Code:1USA
Date:Mar 29, 1999
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