Phone Firms Can Ban ‘Dial-a-Porn’ Lines, Court Says

In a potential boost to efforts to clamp down on “dial-a-porn” services, a federal appeals court ruled Monday that private telephone companies can prohibit sexually explicit phone services.

Ruling in an Arizona case, the U.S. 9th Circuit Court of Appeals concluded that free-speech guarantees that prevent the government from banning the controversial telephone services do not apply to telephone companies, even though they are state-regulated utilities.

The ruling leaves Mountain States Telephone & Telegraph Co. free to turn away “dial-a-porn” vendors, and company officials predicted that it would clear the way for other telephone companies to do away with steamy sex-by-phone services.

‘Can Act as Private Party’

“The decision says we can act as a private party and, in that capacity, contract or decide not to contract,” said Stuart Gunckel, Mountain Bell’s vice president and chief counsel. “It will give telephone companies a basis upon which they can deal with this problem.”

Pacific Bell earlier this year dropped its legal effort to halt “dial-a-porn” service in California after the state Public Utilities Commission concluded that the state should remain “content neutral” in regulating pay-by-call services.

Pacific Bell spokeswoman Charlene Baldwin said Monday that the company will take a new look at the issue in light of the appellate court’s ruling.

“We haven’t seen the decision yet, so we’re not real sure of the impact, but we have been against pornography being used with the 976 service from the beginning, and we’re in favor of any kind of legal measures to get pornography off the network,” Baldwin said.

Variety of 976 Services

Spokesmen for Carlin Communications Inc., which marketed the sex phone lines in both the Arizona and California cases, could not be reached for comment.

Mountain Bell, which provides phone service in seven Western states, began carrying Carlin’s salacious telephone messages in 1985 on its regular “Scoopline” dial-a-message network, which also offers sports updates, weather reports and a variety of other information services via a 976 telephone exchange.

The taped messages offered customers a full menu of sex talk, heavy breathing and passionate moans for a fee--under $1 for the first minute--in addition to regular long-distance tolls.

Hostile community reaction followed immediately, including complaints from school officials about children calling the number. Mountain Bell eventually terminated the service in May, 1985, when the Maricopa County district attorney’s office threatened to prosecute the telephone company under a state law prohibiting the distribution of sexually explicit material to minors.

A few days later, the telephone company adopted a policy prohibiting all such services throughout its service area, and Carlin filed suit challenging the policy on a variety of grounds, among them violation of the company’s First Amendment rights.

A district court judge agreed with Carlin and ordered Mountain Bell to restore Carlin’s 976 service. It was that order that the appeals court, echoing a similar ruling last year from the 11th Circuit Court of Appeals, overturned Monday.

First Amendment Issue

One of the most important issues decided by the court was whether a state-regulated telephone company falls within the restrictions of the First Amendment, which prevents the government--but not necessarily private parties--from infringing on free-speech rights.

“Censoring pornography without a prior judicial determination of its obscenity is something that states may not do; it is a thing that private parties alone--newspapers, television networks, publishers, and so on--may do,” the court noted in a 2-1 opinion written by Senior Judge Joseph T. Sneed.

Although the court concluded that the company’s initial cancellation order was unconstitutional because it was issued in response to threats from a county prosecutor, Mountain Bell was free as a private company to adopt its subsequent system-wide policy outlawing dial-a-porn services, the court said.

New technology available with the 976 system allows many callers to be simultaneously connected to a recorded message, a procedure much different from the phone company’s traditional service allowing callers to talk to each other, the court noted.

“Under these circumstances, the telephone is serving as a medium by which Carlin broadcasts its messages. The phone company resembles less a common carrier than it does a small radio station,” the court noted.

The court also held that Arizona’s statute protecting minors cannot be used to outlaw dial-a-porn services, although it said Mountain Bell could face criminal liability under state obscenity laws if a judge finds the messages obscene.

“Arizona has two options in responding to Carlin’s messages. It may prosecute vigorously under its obscenity laws or it may establish a prior-review permit system” uniquely tailored to the dial-a-porn industry, the court held.

Regulated Utility

Judge Arthur L. Alarcon concurred in the opinion, but Judge William C. Canby Jr., in a dissent, said the continued threat of prosecution by the state and Mountain Bell’s status as a regulated utility should make the company subject to the same First Amendment restrictions as the state.

Since the Pacific Bell case, the California Legislature has passed a law requiring phone companies by Jan. 1 to allow customers to block all taped message calls from their homes, although the technology to do so is not yet available.