Federal ‘Dial-a-Porn’ Limits Upheld : Ruling: Appeals court sustains law requiring individuals who want access to adult telephone services to formally request them. The decision could destroy the industry, a spokesman says.

In a decision that could have a devastating impact on the “adult information” telephone business, a federal appeals court in San Francisco on Thursday upheld U.S. regulations authorizing restrictions on access to “dial-a-porn” numbers.

The regulations were enacted last year in accord with a new law sponsored by Sen. Jesse Helms (R-N.C.). The regulations, known as “reverse blocking,” require individuals who want access to “dial-a-porn” numbers to formally request the service.

Information Providers Coalition for Defense of the First Amendment, a union of companies that provide these services, appealed, contending that the rules were overly broad and a prior restraint on free speech. The companies also asserted that there were less odious alternatives available--including the ability of parents to have phone companies place blocking devices in their phones.

But those arguments were rejected unanimously by a panel of the 9th U.S. Circuit Court of Appeals. The three judges ruled that the Federal Communications Commission rules were sufficiently narrow to “serve the compelling government interest of preventing minors from being exposed to indecent telephone messages. . . .

“The FCC did not burn the house to roast the pig.”

Additionally, the decision said that so-called “voluntary blocking” by parents was not an effective means to restrict minors’ access to dial-a-porn services.

FCC Chairman Alfred C. Sikes praised the decision.

“There is a compelling public interest in preventing minors from being exposed to indecent telephone messages,” he said. “I am pleased that the court accepted the commission’s careful reasoning and upheld the rules which we adopted last year at the direction of Congress.”

But the lawyer for the companies challenging the FCC rules said the decision put unconstitutional curbs on free speech and would have a serious impact on the “adult information” business.

“This decision will have the practical effect of destroying an industry,” said attorney Earl N. Selby of Palo Alto.

“In practice,” he asserted, “the FCC regulations are a ban. People won’t pre-subscribe for these services because they don’t want their names on a list.”

Constitutional scholars differed on the decision’s ramifications.

Matthew Spitzer, a communications law expert at USC, said he thought the decision was consistent with a 1989 Supreme Court ruling that invalidated an outright ban on adult phone services, but left open the possibility of regulating them in a less restrictive fashion.

After that decision, Congress--at the urging of parents’ groups who decried the negative effect of adult phone services on their children--passed a new, less restrictive law and the FCC, as a result, adopted regulations.

The procedure for challenging FCC regulations is a direct appeal to a federal circuit court, and that is what the coalition did last year.

Selby said alternatives exist that could deal with the FCC’s concerns about exposing children to so-called “indecent” speech. In particular, the coalition argued that families could avail themselves of the blocking service provided free by phone companies. They pointed out that 800,000 families in California have asked for the service.

But the judges agreed with the FCC’s findings that such methods were ineffective. As a result, to gain access to adult phone lines, an individual will have to pre-subscribe.

When speech or publication is provided for a fee in the commercial arena, the act of requiring the user to make an advance request for access does not constitute a prior restraint on free speech, said the opinion by U.S. Circuit Judge Ruggero D. Aldisert. U.S. 9th Circuit Judges Alex Kozinkski and Thomas G. Nelson concurred.

Spitzer said the decision would have a negative impact on the revenues of dial-a-porn operators and on the telephone companies that bill customers for the calls, in effect collecting money for the phone services.

The USC professor said the requirement that a potential listener subscribe in advance to get the service will reduce the number of calls because it will eliminate the spontaneity often involved in utilizing “adult” phone services.

On the other hand, Los Angeles lawyer Rex Heinke said the rules impose a minimal burden on First Amendment rights.

“The burden imposed on a potential user of the services does not sound much more substantial than deciding to walk to the corner and buy a particular newspaper,” he said.

Harvard law professor Laurence H. Tribe said the rules and Thursday’s decision have a “big brother” element. However, he said the ruling appears to be consistent with a long line of Supreme Court cases that place lower value on certain forms of communications, such as so-called commercial speech and indecent speech.

“It is a question of who you put the burden on,” the person seeking access to the speech or the person trying to regulate the speech, Tribe said. This decision, he emphasized, puts the burden on the potential listener.

Tribe--who successfully argued the 1989 case in which the Supreme Court invalidated the first dial-a-porn rule--said there was a particular irony in the appellate decision.

“It is one thing to protect children; it is quite another to say adults have to ask for this kind of speech in advance,” he said.

The FCC, he noted, made findings that if “indecent” phone messages were not kept beyond the reach of minors, then they would find a way to gain access to them.

“That is a de facto assumption of negligent parenting,” Tribe said. “Rather than trusting parents to take some affirmative step to block out messages they don’t want their kids to get, the assumption is parents will be distracted or otherwise occupied and the message will get through.”

When groups such as Morality in Media first started pressing Congress to regulate dial-a-porn in the mid-1980s, there were complaints that teen-agers were costing their parents considerable sums in search of titillation on the telephone.

There are widely varying estimates of how big the dial-a-porn industry. Its income has been placed as high as in the hundreds of millions of dollars.

Last summer, a U.S. district court in New York issued an injunction barring the Helms law from going into effect. That decision is on appeal there.

Helms did not return calls seeking comment.

Both Selby and a spokesman for the FCC said they did not think the decision would have a significant impact on a host of other 900 services--such as dating services and those used to obtain sports scores.