Telephone News System, Inc. v. Illinois Bell Telephone Co.

Citation220 F. Supp. 621
Decision Date14 August 1963
Docket NumberCiv. A. No. 62 C 941.
PartiesTELEPHONE NEWS SYSTEM, INC., an Illinois corporation, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, Defendant, United States of America, Intervenor-Defendant.
CourtU.S. District Court — Northern District of Illinois

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Thomas D. Nash, Jr., Robert M. Ahern, Chicago, Ill., for plaintiff.

Walter J. Cummings, Jr., David H. Ward, Chicago, Ill., for defendant.

Herbert J. Miller, Jr., Asst. Atty. Gen., Edward T. Joyce, Herbert W. Titus, Attys., Dept. of Justice, James P. O'Brien, U. S. Atty., for United States, intervenor-defendant.

Before HASTINGS, Circuit Judge, and JULIUS J. HOFFMAN and WILL, District Judges.

JULIUS J. HOFFMAN, District Judge.

Since 1956, plaintiff, Telephone News Systems, Inc., has operated a telephone service supplying certain horse racing information to anyone calling its telephone number. Plaintiff receives the information over a "Sports Printer" leased from United Press International News Service and makes voice recordings several times a day, which recordings are heard by those calling plaintiff's number. (See Telephone News System, Inc. v. Illinois Bell Tel. Co., 210 F.Supp. 471 (N.D.Ill.1962), an earlier opinion in this case.)

On April 25, 1962, Herbert J. Miller, Jr., Assistant Attorney General in charge of the Criminal Division of the Department of Justice, sent a letter to the Illinois Bell Telephone Company representing that information in the files of the Department of Justice revealed that telephone facilities located at plaintiff's place of business were being and would be used for transmitting and receiving gambling information in violation of federal law. The letter stated that pursuant to title 18 U.S.C. § 1084(d), the telephone company was required to discontinue the leasing of these facilities, after reasonable notice to the subscriber; it suggested that five days' notice would constitute reasonable notice under the circumstances. On April 27, 1962, the telephone company notified plaintiff by letter that in compliance with the Department of Justice directive, plaintiff's telephone service would be discontinued on May 5, 1962. Plaintiff instituted this proceeding on May 4, 1962, praying that the Illinois Bell Telephone Company be enjoined from discontinuing service to plaintiff. The United States of America, alleging that it is the real party in interest, has been allowed to intervene as a defendant. Pending a final determination of plaintiff's prayer for a permanent injunction, this Court entered a temporary restraining order preventing removal of plaintiff's telephone facilities.

The case was submitted to the Court on the pleadings, stipulations of facts, and documents admitted into evidence. After hearing arguments and examining the briefs filed by counsel, the Honorable Hubert L. Will found that plaintiff was using its telephone facilities in violation of section 28-1(a) (10) of the Illinois Criminal Code of 1961, Ill.Stat. Ann. c. 38, § 28-1(a) (10) (1961), and that consequently discontinuation of its telephone service was required by title 18 U.S.C. § 1084(d). Telephone News System, Inc. v. Illinois Bell Telephone Co., supra. The Court further determined, however, that plaintiff had raised a substantial question concerning the constitutionality of section 1084(d) and, pursuant to title 28 U.S.C. § 2282, 2284, directed that a three-judge court be convened to consider the constitutional objections raised by plaintiff.

Section 1084(d) provides as follows:

"When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or refuse, the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but no damages, penalty or forfeiture, civil or criminal, shall be found against any common carrier for any act done in compliance with any notice received from a law enforcement agency. Nothing in this section shall be deemed to prejudice the right of any person affected thereby to secure an appropriate determination, as otherwise provided by law, in a Federal court or in a State or local tribunal or agency, that such facility should not be discontinued or removed, or should be restored."

Section 28-1(a) (10) of the Illinois Criminal Code provides that a person commits illegal gambling when he

"knowingly transmits information as to wagers, betting odds, or changes in betting odds by telephone, telegraph, radio, semaphore or similar means; or knowingly installs or maintains equipment for the transmission or receipt of such information."

Plaintiff contends that both of these provisions violate the United States Constitution.

I. CONSTITUTIONALITY OF § 1084(d)

The plaintiff asserts that section 1084(d) is unconstitutional (1) because of vagueness, (2) because it authorizes the prosecution of crimes under the guise of a civil remedy, and (3) because it deprives the telephone subscriber of its remedies for wrongful termination of service.

1. Contention That Provision Is Void Because of Vagueness

Plaintiff contends that section 1084(d) creates a hitherto unknown offense of transmitting or receiving "gambling information" over wire communication facilities, and that neither the section itself nor the statute as a whole supplies any standards for determining what constitutes "gambling information," but delegates the definition of this term to the agencies charged with enforcement of this provision. Plaintiff, quoting from, Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), asserts that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Plaintiff asserts that the term can include almost any type of information, including, for example, the physical condition of a hockey team, the weather conditions on the day of a football game, or "stale" information about a sporting event or contest.

A statute is void where it is so vague as to embrace acts which it is unreasonable to presume were intended to be made subject to its sanctions. Cf. Herndon v. Lowry, 301 U.S. 242, 258-259, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). The difficulty with plaintiff's argument is that plaintiff incorrectly assumes that section 1084(d) creates an offense of transmitting or receiving gambling information in interstate or foreign commerce. This provision, however, creates no offense. Whether the transmission or receiving of information about the weather or the physical condition of a team prior to a sporting event is a crime under given circumstances is to be determined not by reference to the term "gambling information" in this provision, but by reference to federal, state, and local criminal laws which proscribe the sending or receiving of gambling information over wire communications facilities. Section 1084(d) provides for discontinuation of communication services that are put to certain unlawful uses.

The fifth amendment forbids the taking of property without due process of law. It seems probable that one's right to telephone service is a property right within the protection of this amendment, inasmuch as under the common law and most utility statutes a public utility must serve all members of the public without unreasonable discrimination. See Andrews v. Chesapeake & Potomac Tel. Co., 83 F.Supp. 966 (D.D.C. 1949); Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950). The requirement of due process includes the requirement that a statute penalizing conduct must give fair notice of what conduct is proscribed, or it is void for "indefiniteness." Winters v. New York, 333 U.S. 507, 524, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting).

The concept of vagueness or indefiniteness is most often employed with respect to criminal provisions. The requirement as applied to a criminal statute has been described by the United States Supreme Court, in a frequently quoted passage, as follows:

"A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 331, 96 L.Ed. 367 (1952). (Footnotes omitted.)

With regard to non-criminal provisions, the Court has said, "The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanctions for enforcement." Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948).

In examining a statutory provision challenged as vague and indefinite, the federal courts must determine whether the provision contains sufficient standards to identify the conduct to which the penalty applies, and in so doing the court is guided by the provision itself as read in the context of the entire statute, and by the nature of the subjects with which the statute is concerned. Connally v. General Construction Co., 269 U.S....

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