Court predicts Internet will overtake Yellow Pages as top advertising medium

“Information superhighway” may one day surpass the preeminence of the phone book.

When it printed an edition of the Evansville, Indiana Metropolitan Area Yellow Pages, Ameritech Publishing accidentally left out Robert Pigman’s name from his law firm’s ad. Pigman filed suit against Ameritech, seeking damages from the business he lost due to the omission. Ameritech moved for summary judgment.

Citing to an “exculpatory clause” in the advertising contract, which limited Ameritech’s liability to the price Pigman’s firm paid for the ad, the trial court granted Ameritech’s motion. Pigman appealed, asserting that the exculpatory clause was unconscionable and void as against public policy.

The appellate court agreed with Pigman and reinstated his lawsuit against Ameritech. Applying “greater judicial scrutiny” because of the nexus between Yellow Pages advertising and the regulated public telephone service, the court held that the advertising contract was a “contract of adhesion.”

Because of the overwhelming pervasiveness of the Yellow Pages, Pigman had been left with no other meaningful choice but to accept the unreasonable limitation of liability clause. The clause was, after all, nothing more than an illusory promise, since it only required Ameritech to return money it hadn’t actually earned.

The most interesting part of the opinion, however, comes at footnote 6, where, in discussing the great importance of Yellow Pages advertising, the court takes a moment to prophesy about the future of the Internet as a medium of commerce:

We observe that sometime in the not very distant future, when every home and business is online, people may do their shopping for goods and services through the Internet. When that occurs, the printed Yellow Pages directory will no longer enjoy the unique market penetration which it does today. Then, the print medium will be preempted by the information superhighway, and the printed Yellow Pages will no longer enjoy preeminence. Today, when an error is made, the error persists for a full year until the next edition is published. When the Yellow Pages is on the Internet, errors in advertising copy will be corrected with a few keystrokes, and such instant mitigation may well obviate a claim for damages of the kind presented in this case.

Are we there yet?

Pigman v. Ameritech Publishing, Inc., 641 N.E.2d 1026 (Ct. App. Ind. 1994).