Carlin Communications, Inc. v. F.C.C., s. 270
| Decision Date | 02 November 1984 |
| Docket Number | D,Nos. 270,295,s. 270 |
| Citation | 749 F.2d 113 |
| Parties | CARLIN COMMUNICATIONS, INC., and Drake Publisher, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. CARLIN COMMUNICATIONS, INC., Car-Bon Publishers, Inc., and Drake Publisher, Inc., Plaintiffs-Appellants, v. William French SMITH, as Attorney General of the United States, and Federal Communications Commission, Defendants-Appellees. ockets 84-4086, 84-6202. |
| Court | U.S. Court of Appeals — Second Circuit |
Jonathan L. Rosner, New York City (Lawrence E. Abelman, Peter J. Lynfield, Marianne F. Murray, Abelman Frayne Rezac & Schwab, New York City, of counsel), for plaintiffs-appellants.
Bruce E. Fein, Gen. Counsel, F.C.C., Washington, D.C. (Daniel M. Armstrong, Sue Ann Preskill, Sharon Kelley, Steve Kaminer, Washington, D.C., of counsel), for defendants-appellees.
John Messenger, Washington, D.C. (Saul Fisher, Melvin A. Cohen, White Plains, N.Y., of counsel), for intervenors N.Y. Telephone Co. and New England Telephone Co.
Judith A. Maynes, G. Daniel McCarthy, New York City, for intervenor American Tel. & Tel. Co.
George Shapiro, James P. Mercurio, Gerald E. Oberst, Jr., Arent, Fox Kintner & Kahn, Washington, D.C., John S. Redpath, Jr., Harold Akselrad, New York City, Henry J. Gerken, Daniel J. Danser, Englewood, Colo., for amici curiae Home Box Office, Inc. and American Television and Communications Corp.
John J. Walsh, Brooklyn, N.Y., for amicus curiae Morality in Media, Inc.
Before OAKES, KEARSE, and PRATT, Circuit Judges.
Carlin Communications, Inc. provides a telephone "service," colloquially called "dial-a-porn," to local and long distance callers at ordinary rates. The callers hear prerecorded messages, which change several times daily as in the case of weather or sports results, describing actual or simulated sexual activity apparently in explicit terms. A dial-it service can receive up to 50,000 calls per hour to an individual number, and, rather incredibly, 800,000 calls per day were made to dial-a-porn in May, 1983; 180,000,000 calls in the year ending February, 1984. Dial-a-porn, accessible by calls to or in the Metropolitan New York area codes 212, 516, and 914, all to the 976 exchange, was far more popular than the horse-race results, the second most popular dial-it service, which received 79,000 calls per day or 29,000,000 per year. Eighty percent of dial-a-porn calls are local, and twenty percent long distance.
Drake Publisher began offering dial-a-porn in the New York area in February of 1983. Carlin replaced Drake the following month and has since expanded to several cities, advertising the dial-a-porn numbers in adult-type magazines owned by Drake and Car-Bon Publishers, Inc. Under the New York leased-line tariffs, Carlin makes two cents per local or long distance call, and the telephone companies--for local calls, New York Telephone Co. and New England Telephone Co., now the NYNEX Telephone Companies (hereinafter NYNEX), and for long distance calls, American Telephone & Telegraph Co. (hereinafter AT&T) and NYNEX--receive the remaining revenues.
The instant case is really two cases. In one, No. 84-4086, Carlin and Drake petition for review of an FCC rulemaking order or regulation 1 promulgated in response to a statute, 47 U.S.C.A. Sec. 223(b) (Supp.1984, 2 mandating FCC action. In the second case, No. 84-6202, Carlin, Drake and Car-bon 3 appeal from the denial of a preliminary injunction against enforcement of section 223(b) by the United States District Court for the Southern District of New York, Constance Baker Motley, Chief Judge. We affirm the judgment in the appeal, No. 84-6202. We grant the petition to review in No. 84-4086 and set aside the regulation.
The drive to regulate dial-a-porn began when the County Executive for Suffolk County, New York, Peter F. Cohalan, commenced an action against Carlin and the FCC in New York state court, since dismissed. 4 Subsequently Cohalan and a member of Congress, Thomas J. Bliley (R-Va.) sought to have the FCC terminate Carlin's dial-a-porn service by administrative action under then existing legislation, but the FCC concluded that federal law did not restrict dial-a-porn. 5 In light of the FCC's inaction, Congressman Bliley proposed an amendment to section 223 of the Communications Act, 47 U.S.C. Sec. 223 (1982), as a rider to H.R. 2755, 98th Cong., 1st Sess. (1983), the FCC appropriations bill. The House Committee on Energy and Commerce agreed to Congressman Bliley's amendment to H.R. 2755 by voice vote on June 30, 1983, and reported the bill to the full House on September 15, 1983. The legislation prohibited obscene dial-a-porn service:
Section 8 amends section 223 of the Communications Act of 1934 by adding a new subsection (b) ... that extends section 223's prohibition against obscene telephone calls to prerecorded messages. Obscene messages, whether made directly or by recording device, are prohibited without regard to whether the sender of the message initiated the call. The Committee intends that this section will prohibit obscene messages otherwise available over "Dial It" services.
H.R.Rep. No. 356, 98th Cong., 1st Sess. 19 (1983), U.S.Code Cong. & Admin.News 1983, pp. 2219, 2235.
With discussion on the floors of both Houses of Congress on November 18, 1983, the legislation was amended into its present form before being passed. 6 The amendment explicitly covered "indecent" language and authorized the FCC to promulgate defenses to the Act's coverage. 129 Cong.Rec. H10,559-60 (daily ed. Nov. 18, 1983); id. at S10,866-67. Congressman Bliley indicated that "indecent" was to be defined by FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (). 7 On December 8, 1983, the legislation was signed by the President. 8
In the wake of section 223(b)'s passage, the Commission initiated notice and comment rulemaking proceedings. See 48 Fed.Reg. 43,348 (1983); 49 Fed.Reg. 2124 (1984). On June 4, 1984, the Commission issued a Report and Order, 49 Fed.Reg. 24,996 (1984), containing the legislatively mandated regulation establishing defenses to prosecution under section 223(b). The regulation, id. at 25,003, provides:
It is a defense to prosecution under Section 223(b) of the Communications Act of 1934, as amended, 47 U.S.C. Sec. 223(b) (1983), that the defendant has taken either of the following steps to restrict access to communications prohibited thereunder:
(a) Operating only between the hours of 9:00 p.m. and 8:00 a.m. Eastern Time or
(b) Requiring payment by credit card before transmission of the message(s).
Subsection (a) is intended to regulate dial-a-porn services, while subsection (b) is intended to regulate live telephone services providing sexually explicit conversation, which require payment by charge or credit card. Subsection (b) cannot be relied upon by dial-it services because a dial-it caller does not pay "before transmission of the message."
Carlin levels several challenges at the time-channeling regulation. Carlin argues that it is (A) violative of the First Amendment's requirement that a restriction on protected speech be the least restrictive alternative for protecting a compelling governmental interest, (B) either impermissibly overbroad or vague, (C) arbitrary and capricious because the FCC had no legitimate reason for allowing live services to use credit cards and not allowing dial-it services to use automated access codes, and (D) in conflict with common carrier tariffs that require continuous, uninterrupted automatic announcement and recorded program services. Carlin also argues that the statute is vague and overbroad by, inter alia, its proscription of "any obscene or indecent communication." The statute is also said to create an impermissible national standard of obscenity and to constitute an unconstitutional delegation of lawmaking authority.
The Commission counters each of Carlin's claims, arguing, in particular, that the regulatory scheme does not violate the First Amendment because the Commission reasonably rejected as ineffective or impractical other suggested methods for restricting access to dial-a-porn.
The NYNEX Companies, intervenors, argue that the FCC properly rejected proposals for automatic screening and blocking of calls to dial-a-porn services and that the time-channeling regulation does not conflict with telephone company tariffs. AT&T, another intervenor, argues that the FCC did not violate rules prohibiting ex parte contacts by meeting with telephone company representatives on April 16, 1984, to review telephone industry blocking capabilities and that the FCC did not act arbitrarily or capriciously in determining that the industry lacked the capability of effectively blocking calls at customers' request. Home Box Office, Inc., and American Television and Communication Corp., amici, argue that section 223(b) is unconstitutionally overbroad because its coverage is not limited to expression that is obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Morality in Media, Inc., amicus, argues essentially that the time-channeling regulation is ineffective and fails to satisfy Congress's mandate.
In any constitutional case we start with the prudential consideration perhaps best set forth by Justice Brandeis in his concurring opinion in Ashwander v. Tennessee, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936), that courts should not "anticipate a question of constitutional law in advance of the necessity of deciding it," id. at 346-47, 56 S.Ct. 482-83 (...
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