Telephone News System, Inc. v. Illinois Bell Telephone Co.
Citation | 220 F. Supp. 621 |
Decision Date | 14 August 1963 |
Docket Number | Civ. A. No. 62 C 941. |
Parties | TELEPHONE NEWS SYSTEM, INC., an Illinois corporation, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, Defendant, United States of America, Intervenor-Defendant. |
Court | U.S. District Court — Northern District of Illinois |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
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.
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:
Plaintiff contends that both of these provisions violate the United States Constitution.
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.
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:
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....
To continue reading
Request your trial-
U.S. v. Kammersell
...statute." Id. pp. 240-41, 102 S.Ct. 3245. "Transmits ... in interstate commerce" is not ambiguous. Telephone News System, Inc. v. Illinois Bell Tel. Co., 220 F.Supp. 621, 638 (N.D.Ill.1963) (Transmission is sending); United States v. Reeder, 614 F.2d 1179, 1184 (8th Cir.1980); see also Pic-......
-
At & T Corp. v. Coeur D'Alene Tribe
...] an offense of transmitting or receiving gambling information in interstate or foreign commerce." Telephone News System, Inc. v. Illinois Bell Tel Co., 220 F.Supp. 621, 625 (N.D.Ill.1963), aff'd 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83 (1964). Instead, the determination of whether an off......
-
Clajon Production Corp. v. Petera
...Pullman abstention is less appropriate when the assumed state law is upheld as constitutional. See Telephone News Sys., Inc. v. Illinois Bell Tel. Co., 220 F.Supp. 621, 637 (N.D.Ill.1963) (abstention less appropriate where the state law at issue judged to be constitutional), aff'd, 376 U.S.......
-
United States v. Cerone
...§ 1084(d) violated his fifth amendment privilege against self-incrimination. As clearly held in Telephone News Sys., Inc. v. Illinois Bell Tel. Co., 220 F.Supp. 621, 628 (N.D.Ill.1963) (three-judge court), aff'd mem., 376 U.S. 782, 84 S.Ct. 1134, 12 L. Ed.2d 83 (1964), the Government has th......