Sprint Corp. v. Evans, Civ. A. No. 93-T-284-N.

• Decision Date: 14 February 1994
• Docket Number: Civ. A. No. 93-T-284-N.
• Citation: 846 F. Supp. 1497
• Parties: SPRINT CORPORATION, Plaintiff, v. James H. EVANS, Attorney General of the State of Alabama, Defendant.
• Court: U.S. District Court — Middle District of Alabama

846 F. Supp. 1497

SPRINT CORPORATION, Plaintiff, v. James H. EVANS, Attorney General of the State of Alabama, Defendant.

Civ. A. No. 93-T-284-N.

United States District Court, M.D. Alabama, N.D.

February 14, 1994.

COPYRIGHT MATERIAL OMITTED

Joseph B. Mays, Jr., Michael S. Denniston, Bradley, Arant, Rose & White, Birmingham, AL, Kevin R. Sullivan, Deborah M. Lerner, Kelley, Drye & Warren, Washington, DC, David M. Eisenberg, Arthur A. Chaykin, Sprint Corp., Kansas City, MO, for plaintiff.

Mark Englehart, H. Lewis Gillis, Thomas, Means & Gillis, P.C., Donald V. Watkins, Donald V. Watkins, P.C., Montgomery, AL, for defendant.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

Plaintiff Sprint Corporation charges in this lawsuit that the Attorney General of Alabama's attempt, under the Alabama criminal anti-obscenity statute, 1975 Ala.Code §§ 13A-12-200.1, et seq., to prosecute it for providing interstate "800" telephone service violates federal law. In its complaint as amended, Sprint asserts three claims against defendant Attorney General James H. Evans: first, that application of the state statute is preempted by the Communications Act of 1934, 47 U.S.C.A. §§ 151, et seq.; second, that such application would constitute an unlawful informal system of "prior restraint" in violation of the first and fourteenth amendments to the United States Constitution as enforced by 42 U.S.C.A. § 1983; and, third, that, because Evans has adopted inconsistent interpretations of the statute's applicability to Sprint's provision of interstate 800 telephone service, the statute is unconstitutionally vague and therefore void under the fourteenth amendment. Sprint seeks declaratory and injunctive relief.

The court now has before it Evans's motion to refer certain issues to the Federal Communications Commission ("FCC"), under the doctrine of "primary jurisdiction," and for an order to direct him to file a petition for a declaratory ruling on those issues with the Commission. For the reasons set forth below, the motion will be granted in part and denied in part.

I. BACKGROUND

As this court described in an earlier opinion entered on April 7, 1993, Sprint Corp. v. Evans, 818 F.Supp. 1447 (M.D.Ala. 1993), Sprint is an international telecommunications company that provides voice, data, and video transmission services. As a carrier of telephone messages on its telecommunications network, it is a "common carrier" within the meaning of the Communications Act.¹ Among other services, Sprint provides an "800" service, which is offered to subscribers pursuant to tariffs filed with the FCC.² To subscribe to an 800 service plan, a subscriber submits a standard enrollment form, which does not require the subscriber to disclose the nature of its business or the purpose for which it intends to use the 800 service. Sprint has over 150,000 accounts for 800 service.

Under an 800 service plan, a consumer calls the 800 number and the party called — that is, the subscriber — is billed a prescribed amount for each minute as toll charges for the call. The 800 service plan, therefore, differs from regular telephone service in that the party called rather than the caller pays for the call. Sprint receives no payment based upon the sales success of the subscriber and has no ownership interest or financial relationship with any of its subscribers for 800 service. Sprint does not participate in the subscribers' billing of the callers to the 800 numbers.

To initiate an 800 service call, a person places the call through his or her local telephone company. The local telephone company then switches the call to a long distance carrier such as Sprint. To complete the call, the long distance carrier generally delivers the call to the subscriber's local telephone company, which then switches the call to the subscriber. Sprint handles over seven million 800-number calls during a normal business day.

If Sprint receives a complaint from a caller about an 800 service number, Sprint first verifies that Sprint, as opposed to another long distance company, operates the 800 number. Sprint also calls the 800 line itself to verify the content of the message. Sprint then informs the 800 subscriber that Sprint has received a complaint concerning the 800 service and asks that the subscriber contact the caller directly about the complaint. Once Sprint notifies the subscriber of the nature of the complaint, it takes no further action. Sprint receives approximately one complaint a week regarding its 800 service numbers.

On February 5, 1993, Sprint received a subpoena from the Montgomery County Grand Jury commanding it to appear on February 11, 1993, and to produce all records concerning 800 telephone numbers. The production request included all documents pertaining to 16 specific 800 numbers. Twelve of these numbers were issued to Network Telephone Services and to ALMARC, both of which are California companies. With respect to these services, a consumer places a call to the 800 number and is given recorded preliminary information by the service provider. After the caller arranges an alternative billing method, such as a credit card, the caller can then connect with another random caller, hear a prerecorded message, or speak live with an employee of the service provider. Both sides agree that all of the telephone numbers under investigation require interstate connections between the callers and subscribers. The calls originate in Alabama, but are completed in other states. As such, the calls involve interstate communications within the meaning of the Communications Act.³

Sprint produced documents to the grand jury in compliance with the subpoena. On February 16, an attorney for Sprint, David Eisenberg, contacted Alabama Deputy Attorney General Russell Duraski, who informed Eisenberg that the grand jury investigation concerned obscene materials by telephone. Duraski mentioned that "GTE" had previously been indicted on obscenity charges in Alabama but did not ask Eisenberg to or suggest to him that Sprint terminate any of its 800 numbers or even review the content of the 800 numbers. On February 19, another attorney for Sprint, Joseph Fine, contacted Attorney General Evans, who told him that Sprint was a target of the grand jury investigation. During the week of February 22, Duraski told Fine that the grand jury was scheduled to meet on February 25 and that the Attorney General's office would present evidence to the grand jury on that date. The Attorney General's office informed Fine that the date would be rescheduled. On March 2, Duraski told Eisenberg that the grand jury would convene again on March 10 to consider the matter.

On March 8, Sprint filed a motion for a temporary restraining order and a preliminary injunction, seeking to enjoin the Attorney General from pursuing a criminal indictment against Sprint for violating the Alabama anti-obscenity statute in connection with the company's provision of 800 telephone service. Sprint served the motion on the Attorney General the same day. On March 9, a hearing was held on the motion for a temporary restraining order. Sprint maintained that enforcement of the anti-obscenity statute against it would interfere with federal statutory rights and is preempted; regulation of interstate communications, according to the company, is within the exclusive jurisdiction of the FCC. Sprint also contended that enforcement of the statute would constitute an unlawful system of prior restraint. At the hearing, the Attorney General's office could not state that prosecution of Sprint was not imminent. The court orally informed the parties that a temporary restraining order would be entered and issued a written order and memorandum opinion the same day.

On March 19, the court held a hearing on the motion for a preliminary injunction.⁴ Sprint reasserted its earlier arguments regarding preemption and prior restraint. In response to questions from the court, Donald Watkins, counsel for the Attorney General, clarified Evans's position regarding Sprint's liability under the state's anti-obscenity statute in connection with the company's 800 service.⁵ According to Evans at that time, the statute requires Sprint to take one of two actions whenever it receives a complaint from a caller that a subscriber's message is offensive in content. Sprint must either report the complaint to a prosecuting attorney or institute a declaratory judgment action against the subscriber. If Sprint takes one of these two actions in response to a caller's complaint, then it is not criminally liable under the statute. According to Evans, Sprint is not obligated to cease carrying a subscriber's message, referred to as "taking down" a subscriber, while these actions are pending. Sprint is obligated to take down a subscriber only once a court has adjudicated the subscriber's message obscene and need not make its own independent determination as to whether a message is obscene.

Based upon this interpretation by Evans of the statute's applicability to Sprint, the court granted the preliminary injunction on April 7, 1993. Sprint Corp. v. Evans, 818 F.Supp. 1447 (M.D.Ala.1993). The court concluded that Evans's interpretation of the statute would operate as a regulatory reporting mechanism and, as such, was likely preempted by the Communications Act's comprehensive scheme for the regulation of interstate communication.⁶ Evans was preliminarily enjoined from pursuing any criminal proceedings against Sprint for violations of §§ 13A-12-200.1, et seq. of the 1975 Ala. Code, based on the company's failure, whenever it receives a complaint from a caller that an 800-number subscriber's message is offensive in content, either to report the complaint to a prosecuting attorney or to institute a declaratory judgment action against the subscriber.

Evans and Sprint filed motions for summary judgment on May 28 and June 4, 1993, respectively. Subsequently, Evans represented to the court tha...