When the going gets weird, the weird get pedmounts?

Municipal attempts to consolidate individual newsracks into fixed-mount vending modules in San Francisco and Indianapolis have united mainstream and alternative press forces in recent weeks, with varying results. News organizations charge that the multi-paper displays, known as pedmounts, jeopardize circulation, hurt papers’ brand loyalty, and force unwilling association with third-party advertising. They also fear that city employees will have what amounts to a censor’s power by having discretion over which papers are displayed, and where.

In the Bay Area, U.S. District Court Judge Saundra Brown Armstrong temporarily halted San Francisco’s plan to eliminate individual news racks and replace them with fixed pedestal displays. The plaintiffs — a group of newspapers including the San Francisco dailies, the New York Times, USA Today and AAN members SF Weekly and the San Francisco Bay Guardian — persuaded the judge to rule in their favor on procedural matters. In her June 23 decision granting a temporary injunction, Armstrong wrote that the ordinance presented “a serious question concerning the adequacy of procedural safeguards…[it] fails to prescribe adequate time limits by which cubicle permit decisions are to be made, and also fails to provide for adequate judicial review of permit decisions.”

Judge Armstrong was also troubled by the mechanism for deciding which papers would rate placement. The new ordinance as written “clearly establishes a priority system based on frequency of publication.” This was a problem in Chicago last year, where a provision in that city’s newsrack ordinance gave “preference to publications with five or more different daily editions published each week.”

Attorney Tim Franks, a member of the plaintiffs’ legal team, said “As far as I’m concerned [the city] can’t enforce it as it stands.” He expressed concern that the director of San Francisco’s public works department would have far too much discretion in allotting spaces in the new racks, and noted that proposed third-party advertising on the modules compelled association with speech and thus presented a First Amendment problem.

A similar law was tabled by the Metropolitan Development Committee of the City-County Council in Indianapolis June 28. Kerry Farley, advertising director of NUVO Newsweekly, was surprised. Speaking hours before the hearing, he confidently predicted smooth sailing, largely because he felt the process had been marked by cooperation and communication between publishers and the city. “Three years ago the mayor’s office tried to push it through to coincide with the opening of a new downtown mall. We got involved immediately, and as a result have been able to substantially impact — almost control it, in some ways — in return for our cooperation.”

Farley said that alarms went off when the change was first proposed.”There was a lot of fear — of losing distribution, of losing some kind of branding leverage — but there was a lot to be gained. Our paper will be placed next to the daily [the Indianapolis Star], so we’ll get that eyeball traffic [under the tabled plan.]”

The ordinance was strenuously opposed by a consortium of dailies, including the Star/News and USA Today. They objected to third-party advertising (an 18-foot module wall that faces the street, in an area off-limits to billboards) and the Star claimed a 27% loss in newsrack sales during a six-month test period. During the same test period, claimed Farley, “[NUVO] didn’t lose a single paper, and believe me, we were looking for it.”

Farley still thinks it’s a win-win deal for everybody concerned. The consolidated pedmounts would have an effect akin to the supermarket checkout by “redirecting people who read and maybe getting some compulsive behavior,” and the language in the ordinance includes safeguards to allow for new papers to get space, and for module share in future expansion to reflect the market demand for individual papers.

He has advice for papers confronted with new laws governing distribution: “If you wait until the last minute to get involved, you’re in trouble. Don’t put all your eggs into the legal basket.”

The newsrack battles have produced some strange tangential results. In San Francisco, the Newspaper Agency, which handles the joint operating agreement between the Examiner and the Chronicle, bid on the contract for the proposed pedmounts and lost, only to then join in the suit against the ordinance. According to the Chronicle, “Agency officials said that the company had placed its bid before the details of the rack replacement program emerged, and it never supported giving the city’s director of public works authority over the number, distribution and location of the new racks.”

And Indianapolis’ press is divided, with NUVO Newsweekly and the other free papers endorsing the pedmount proposal after overcoming initial skepticism, but the local dailies and the ubiquitous USA Today (with its distinctive, TV-shaped newsracks) remaining opposed. Prior to the hearing, and confident the ordinance would pass, Farley said, “Nobody wanted a fight. They wanted a better-looking downtown, and we wanted to protect our paper. And we got that, and more.”

But not enough, apparently, for the Star and its allies. “Both the daily and the USA Today, in what was to me a startling break with the other papers, argued that the dailies should be treated differently” on the basis of being paid papers, said Farley. “Of course, the council appropriately rebuked them for their attempt at a strategy that wouldn’t pass Constitutional muster.”

Farley said the Star/News and USA Today “had their lawyers turn up and blow long and hard,” but that it was “pure bluster” and a delaying tactic at best. He criticized the unexpected move as contrary to the spirit of amity that had characterized the negotiations between newspapers and the city. “I guess [the Star] just doesn’t like to be told what to do,” he said. However, he added, “The city is always asking, not telling.”

All sides in San Francisco and Indianapolis are readying arguments for the next round. “I still believe it will happen,” stated Farley flatly. Thanks to the Star, however, “now the City is a bit angry instead of pleased and thankful for the cooperation.”