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Amalgamated Transit Union Local 1015 v. Spokane Transit Authority

United States District Court, E.D. Washington

May 16, 2017




         BEFORE THE COURT is the Defendant's Motion to Dismiss for Failure to State a Claim (ECF No. 12). Plaintiff filed a Response. (ECF No. 15). Defendant filed a Reply. (ECF No. 18). Plaintiff filed a Sur-Response (ECF No. 20) pursuant to the court's direction to address the Ninth Circuit's opinion in Real v. City of Long Beach, 852 F.3d 929, 933 (9th Cir. 2017). The Motion was submitted for decision without oral argument. This Order memorializes the court's ruling.

         I. Background

         As this is a Motion to Dismiss, the facts are taken from the allegations in the Complaint.

         Plaintiff Amalgamated Transit Union Local 1015 (“Plaintiff” or “ATU”) is the sole and exclusive bargaining representative of all non-supervisory employees of the Spokane Transit Authority. (ECF No. 1 at ¶2).

         Defendant Spokane Transit Authority (“Defendant” or “STA”) is a public transportation benefit authority, a type of municipal corporation created pursuant to RCW 36.57A.030, which operates public transportation services in Spokane County. (ECF No. 1 at ¶3).

         STA has a “Commercial Advertising Policy” (“Policy”) setting forth the criteria by which advertising will be approved for display on STA buses. (ECF No. 1 at ¶6). The Policy delegates daily administration of the policy to an “Advertising Contractor.” (ECF No. 1 at ¶7); (ECF No. 1-1 at §III.A). From 2009 to November 9, 2016, the Advertising Contractor was ooh Media LLC. (ECF No. 1 at ¶8).

         The Policy permits two types of advertising content for display on STA buses: (1) “Commercial and Promotional Advertising”; and (2) “Public Service Announcements.” (ECF No. 1 at ¶9); (ECF No. 1-1 at § II.A). “Commercial and Promotional Advertising” is defined by the Policy as advertising that “promotes or solicits the sale, rental, distribution or availability of goods, services, food, entertainment, events, programs, transaction, donations, products or property for commercial purposes or more generally promotes an entity that engages in such activity.” (ECF No. 1-1 at § II.A.1).

         To qualify as a “Public Service Announcements” (“PSA”), proposed advertisements must meet three criteria: (1) the sponsor “must be a government entity or a nonprofit corporation that is exempt from taxation under § 501(c)(3) of the Internal Revenue Code”; (2) the “PSA must be directed to the general public or a significant segment of the public and relate to: i. Prevention or treatment of illness; ii. Promotion of safety, health or personal well-being; iii. Provision of family or child social services; iv. Solicitation by broad-based employee contribution campaigns which provide funds to multiple charitable organizations (e.g. United Way); or v. Provision of services and programs that support low income citizens or persons of disability”; and (3) “may not include a commercial message or mention a festival, show, sporting event, concert, lecture, or event for which an admission fee is charged.” (ECF No. 1-1 at § II.A.2.c).

         The Policy also lists categories of “Prohibited Advertising Content” including ads containing deceptive commercial speech, political speech, the promotion of unlawful goods or services, or “expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues.” (ECF No. 1-1 at § II.B).

         Plaintiff and other unions have placed advertisements on STA buses in the past. (ECF No. 1 at ¶16). In 2000, Plaintiff, along with a regional council of unions, posted an advertisement promoting organized labor on STA buses. (ECF No. 1 at ¶17). The United Food and Commercial Workers Local 1439 posted advertisements on STA buses in 2010 appealing the public to join the union in a campaign against a specific employer and in early 2016 encouraging workers to “GET UNITED!” and unionize. (ECF No. 1 at ¶¶18-20).

         On August 9, 2016, Plaintiff contacted ooh Media about placing advertisements on STA buses promoting the services Plaintiff provides for its members and informing the public about workers' rights to organize. (ECF No. 1 at ¶23). On August 10, 2016, ooh Media informed Plaintiff it would not be permitted to display ads on STA buses because “[y]our union would be a 501(c)(5) and as such your message is not for commercial purposes.” (ECF No. 1 at ¶25).

         On September 6, 2016, Plaintiff contacted STA's attorney about the rejection and threatened to file a lawsuit if STA did not allow it to run its ads. (ECF No. 1 at ¶29); (ECF No. 13-1). On September 8, 2016, counsel for STA responded stating there was an “unfortunate miscommunication - or perhaps lack of clear communication due to the email forum - between ooh Media and ATU Local 1015.” (ECF No. 13-1 at 7). Counsel stated an advertisement “promoting our union and getting others organized” “does not appear to me to be commercial advertising promoting a commercial service or product.” (ECF No. 13-1 at 7). Counsel stated ooh Media's reference to Plaintiff's tax status as governing whether the content of an advertisement was “Commercial and Promotional Advertising” was “not correct at all.” (ECF No. 13-1 at 7). Counsel also stated “I am confident that STA would agree to facilitate a meeting to get the miscommunication cleared up and to allow a chance for ATU Local 1015 to present [an] ad copy (it doesn't need to be professionally rendered) to be fully evaluated by ooh Media to determine if it is indeed Commercial or Promotional Advertising, or contains Prohibited Advertising Content.” (ECF No. 13-1 at 7-8).

         On September 15, 2016, STA and Plaintiff met to discuss the possibility of running advertisements on STA buses. (ECF No. 1 at ¶32). During the meeting, STA suggested Plaintiff submit an ad copy so ooh Media could base its decision on a proposed ad. (ECF No. 1 at ¶33). STA also stated promoting a union was not commercial advertising and suggested such advertising might constitute “Prohibited Advertising Content” because it would “express[] or advocate[] an opinion, position, or viewpoint on matters ...

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