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FABULOUS ASSOCS. v. PENNSYLVANIA PUC

August 23, 1988

FABULOUS ASSOCIATES, INC.
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, et al.; SAPPHIRE COMMUNICATIONS OF PENNSYLVANIA, INC. v. ROBERT P. CASEY, et al.



The opinion of the court was delivered by: GREEN

 CLIFFORD SCOTT GREEN, UNITED STATES DISTRICT JUDGE.

 The plaintiffs in the above captioned actions, Fabulous Associates, Inc. and Sapphire Communications of Pennsylvania, Inc., are providers of sexually explicit telephone message services colloquially referred to as "dial-a-porn". At the time of complaint and hearing, customers interested in accessing pre-recorded or live messages did so by dialing a number on the "976" telephone exchange. Plaintiffs commenced this action against state government officials *fn1" pursuant to the First, Fifth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and the Pennsylvania Constitution to challenge the constitutional validity of a statute passed by the Pennsylvania legislature. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).

 On March 30, 1988, the Pennsylvania legislature enacted an amendment to the existing Public Utilities Law, 66 Pa. Cons. Stat. 101 et seq., to add a section directed at telephone message services. The newly enacted § 2905 would require all telephone message services to: (a) include a preamble with their message informing listeners of the cost of the call, the itemization of said call on their telephone bill, and the sexual explicit nature, if any, of the forthcoming message, (b) implement a nine digit access code system which would deny access to explicit sexual materials absent the customer's entry of the code, and distribute access codes only upon written application, (c) institute reasonable procedures to ensure that access codes required for explicit sexual messages are not issued to minors, and (d) bear all costs associated with the new requirements. Section 2905 also imposes enforcement duties on the telephone company by requiring the company to condition continuation of line service on compliance with the section's provisions. Finally the act vests enforcement powers in the Public Utility Commission, and states that failure to comply with the section constitutes a violation of both a consumer protection and a theft statute. *fn2"

 Plaintiffs challenge almost all sections of the Telephone Message Service Act, but their most vocal and strenuous objections concern the Act's access code requirement for telephone messages containing explicit sexual material. The Act would require providers of such services to implement a screening system precluding access by any caller to sexually explicit messages absent the entry of a nine digit code. Persons interested in receiving the messages would first have to apply in writing to message providers to obtain access codes. Both plaintiffs presented evidence that they advertise their message service solely in adult magazines and that their messages already carry a preamble advising the listeners of the adult nature of the forthcoming message. Sapphire asserts that

 
the imposition of any access code, and especially a nine-digit access code, as a condition of gaining access to Sapphire's customers, imposes a major financial and administrative burden upon Sapphire to implement its access codes, and will cause Sapphire to lose many of its customers, all on the basis of requirements imposed due solely to the content of Sapphire's programming . . . . Furthermore, adults will have free access only to audiotex materials fit for children and will be deterred from calling Sapphire's audiotex services, all by virtue of the requirement of having to obtain an access code. *fn4"

 Plaintiffs also complain about the Act's proscription against the issuance of access codes to minors and its directive that "telephone message services shall exercise all reasonable methods to ascertain that the applicant is not a minor", 66 Pa. Cons. Stat. § 2905(c). Plaintiffs argue that the language of subsection (c) unreasonably subjects message providers to criminal prosecution without adequate notice as to how compliance can be met.

 The amendment incorporates by reference the definition of explicit sexual material utilized in Pennsylvania's obscenity statute, 18 Pa. Cons. Stat. § 5903 which states in pertinent part:

 
(c) Dissemination to minors. - No person shall knowingly disseminate by sale, loan or otherwise explicit sexual materials to a minor. "Explicit sexual materials," as used in this subsection, means materials which are obscene or:
 
(1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or
 
(2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1), or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.

 The definition of "explicit sexual materials" utilized in the statute embodies two categories of messages, obscenity and obscenity as to minors. The Supreme Court has approved of a variable obscenity standard which entails consideration of the harm to children caused by certain types of sexually oriented matter. See Ginsberg v. New York, 390 U.S. 629, 643, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968). However, while matter that is obscene as to adults is necessarily so as to children, the reverse is not true. The sweep of the definition is broad enough to encompass both obscenity as to children and matter which, though sexually explicit, is not obscene as to adults. Hence it is not enough that the variable standard may be constitutional as applied to minors, since it is being applied as a restriction on adults' access to protected speech. See American Booksellers Ass'n, Inc. v. Strobel, 617 F. Supp. 699, 705 (E.D. Va. 1985) ("In promoting the morals of its youth by restricting their access to certain communications, the state may not create barriers which simultaneously place substantial restrictions upon an adult's access to those same protected materials."), aff'd, American Booksellers Ass'n, Inc. v. Commonwealth of Virginia, 802 F.2d 691 (4th Cir. 1986), questions certified to Virginia Supreme Court on other grounds, 484 U.S. 383, 98 L. Ed. 2d 782, 108 S. Ct. 636 (1988). The court notes, moreover, that the statutory provisions regarding the telephone company's role transforms the section into a prior restraint on free speech, since it results in the automatic disconnection of the message where a provider of the message fails to implement a nine-digit access code system for explicit sexual materials or fails to otherwise comply with the section. The issue before the court, thus, is whether the requirements of the statute imposes an unconstitutional burden on adults' exercise of their first amendment rights with respect to sexually explicit telephone messages.

 Both Sapphire and Fabulous contend that the appropriate legal standard for analyzing the constitutional validity of the statute is the standard enunciated by the Second Circuit in Carlin Communications, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984) (" Carlin I "), Carlin Communications v. FCC, 787 F.2d 846 (2d Cir. 1986) (" Carlin II ") and Carlin Communications, Inc. v. FCC, 837 F.2d 546 (2d Cir. 1988) (" Carlin III "). The Carlin decisions involved a challenge to regulations promulgated by the Federal Communications Commission pursuant to a statute creating an affirmative defense against prosecution for providers of sexually explicit telephone ...


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