Dial-a-Porn Wins Ruling on Phone Use

A federal judge in Los Angeles has ruled that a state regulation allowing telephone companies to disconnect phone lines used for illegal purposes cannot be used to clamp down on dial-a-porn services.

Ruling in a case brought by Sable Communications of California Inc., the state’s largest dial-a-porn operator, U.S. District Judge A. Wallace Tashima said the regulation is unconstitutional when applied to operators of 976 exchange pay telephone services.

“A state may not simply close down the forum of a provider of sexually explicit messages; instead, it must either prosecute vigorously under its obscenity laws or establish a prior-review permit system,” Tashima said in a decision made public Wednesday.

Officials from Pacific Bell, which handles billings for most of the telephone message services in California, said they will consider appealing the ruling.

“Our initial reaction is one of dismay,” Pacific Bell spokesman Lou Saviano said.

“We have said repeatedly that the filth that’s on some of these 976 numbers is absolutely repugnant to us, but it seems we’re frustrated at every legal attempt to get rid of it,” he said.

The state Public Utilities Commission ruled earlier this year that telephone companies cannot unilaterally disconnect phone services simply because the messages they offer are pornographic.

That ruling quelled most of the objections from the dial-a-porn industry, but the current case centered around a different regulation, one not aimed directly at telephone message services but which dial-a-porn operators feared was about to be used as a new vehicle to attack pornographic phone services.

The regulation in question, known as Rule 31, requires telephone companies to disconnect phone lines when it is believed they are being used for illegal purposes and present “significant dangers” to public health, safety and welfare.

Phone company officials say the regulation was originally framed to prevent the phone lines from being used to operate prostitution, bookmaking and drug-dealing rings.

But dial-a-porn operators said the regulation clearly could have applied to telephone message services as well.

Services’ Concerns

Under the regulation, they argued, telephone companies could disconnect dial-a-porn services simply by establishing that a message service was under investigation for violating federal obscenity laws or laws restricting access of minors to pornography--without benefit of a full court hearing or a determination that all of the company’s phone messages were obscene.

Lawyers for the PUC and the telephone companies argued there was no need for a ruling on the regulation because no one had ever attempted to use it against dial-a-porn operators.

But the attorney for Sable Communications, Lee Blackman, said documents produced in the case showed that Pacific Bell had held “internal discussions” about using the regulation against dial-a-porn operators and had approached state and federal prosecutors about cooperating in the effort.

“Clearly, with the Justice Department continuing to pursue the (dial-a-porn) matter and with the large numbers of people who seem to be concerned about 976 generally, it was our view that the chances were good that in the fullness of time, someone would attempt to rely on Rule 31,” Blackman said.

Tashima, in his ruling, said Sable “should not have to wait until it is actually prosecuted to challenge the statute,” noting that a recent move by the Federal Communications Commission against two California dial-a-porn operators makes it clear that vigorous prosecution efforts are under way.

The judge concluded that it would constitute unlawful prior restraint to prevent message service operators from continuing to operate simply because they have been found to have broadcast obscene messages in the past. Obscenity is not protected under the First Amendment.

“Even if some of Sable’s messages could be characterized as legally obscene,” Tashima wrote, “that does not mean that all of its future messages can be presumed to be likewise unprotected.

‘Unlawful Restraint’

“To prohibit all future communication on the basis that a single message meets the standard for probable cause would constitute an unlawful restraint and would violate the basic tenet that speech should not be curtailed in the absence of a full adversary proceeding.”

Besides finding the regulation unconstitutional when applied to telephone message services, the judge issued a permanent injunction preventing California telephone companies and the Public Utilities Commission from taking any action to disconnect 976 services based on any assertion that the message transmitted is obscene.

“I think that every decision affirming the application of the First Amendment in the context of the phone system, which is becoming a major means of communication, is significant,” Blackman said.

But Saviano said the decision “seems to indicate that we can’t even discuss enforcing a regulation against these objectionable messages, much less actually disconnect them.”