CARLIN COMMUNICATIONS, INC., Sapphire of Arizona, Inc., Joy
Communications of California Inc., Lynx Communications of
California Inc., Sable Communications of California Inc.,
Sapphire of Colorado Inc., Sapphire Communications of
Florida, Inc., Sapphire Communications of Georgia Inc.,
Sapphire of Iowa, Inc., Sapphire Communications of Kentucky
Inc., Sapphire of Louisiana Inc., Joy Communications of
Maryland Inc., Sapphire Communications of Maryland Inc., Joy
Communications of Michigan Inc., Sapphire of Michigan Inc.,
Sapphire of Minnesota Inc., Sapphire of Nebraska Inc.,
Sapphire of Nevada Inc., Sapphire of Oregon Inc., Joy
Communications of Pennsylvania Inc., Sapphire Communications
of Pennsylvania Inc., Sapphire Communications of Texas Inc.,
Sapphire of Virginia Inc., Sapphire of Washington Inc., and
Sapphire of Washington D.C. Inc., Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and The United States of
America, Respondents,
Ameritech Operating Companies, American Telephone and
Telegraph Co., BellSouth Corporation, Southern Bell
Telephone and Telegraph Co. and South Central Bell Telephone
Co. ("BellSouth Companies"), Bell Atlantic, and Pacific
Bell, Intervenors.
No. 87, Docket 87-4054.
United States Court of Appeals,
Second Circuit.
Argued Sept. 21, 1987.
Decided Jan. 15, 1988.
As Modified on Denial of Rehearing April 4, 1988.
Norman S. Beier, New York City (Lawrence E. Abelman, Peter J. Lynfield, Carldad Pineiro Scordato, Abelman Frayne Rezac & Schwab, New York City, of counsel), for petitioners.
Diane S. Killory, General Counsel, F.C.C. (Daniel M. Armstrong, Associate General Counsel, Sue Ann Preskill, Counsel, F.C.C., Washington, D.C.; Richard K. Willard, Asst. Atty. Gen., Barbara L. Herwig, John C. Hoyle, Dept. of Justice, Washington, D.C., of counsel), for respondents.
Alfred Winchell Whittaker, Kirkland & Ellis, Washington, D.C., for intervenor Ameritech Operating Co.
Jim G. Kilpatric, Basking Ridge, N.J., for intervenor American Tele. & Tele. Co.
R. Frost Branon, Jr., BellSouth Corp., Atlanta, Ga., for intervenor BellSouth.
John M. Goodman, Bell Atlantic, Washington, D.C., for intervenor Bell Atlantic.
Michael H. Salinsky, Pillsbury, Madison & Sutro, San Francisco, Cal., for intervenor Pacific Bell.
Robert T. Perry, Media Law Clinic, New York Law School, New York City (Connie Moyer-Goodman, John W. Olivo, Jr., Ellen Rossner, Student Interns, of counsel), for amicus curiae New York Civ. Liberties Union.
Before OAKES and KEARSE, Circuit Judges, and BONSAL, District Judge.*
OAKES, Circuit Judge:
The Federal Communications Commission ("Commission" or "FCC") has once again issued regulations establishing a defense to prosecution under section 223(b) of the Federal Communications Commission Authorization Act of 1983, 47 U.S.C. Sec. 223(b) (Supp. I 1983), which regulates interstate "dial-a-porn" services. The Commission adopted the Third Report and Order, Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, FCC 87-143,
FACTUAL BACKGROUND
While we assume familiarity with our prior decisions in Carlin I and Carlin II, for ease of consideration here we briefly review the FCC's past efforts to regulate adult telephone message providers. In its First Report and Order, the Commission sought to restrict the operation of petitioner Carlin Communications, Inc. ("Carlin"), and other adult telephone message providers to the hours between 9:00 p.m. and 8:00 a.m., Eastern Time. 49 Fed.Reg. 24,996 (1984). We held those regulations both overinclusive and underinclusive; the time-channeling regulations denied adults access to dial-a-porn messages during daytime hours but did not prevent minors from calling the service during nighttime hours. Carlin I,
Following Carlin I, the Commission adopted a Second Report and Order on October 10, 1985 (published October 22, 1985, 50 Fed.Reg. 42,699). In the Second Report and Order, the Commission rejected all network blocking by which outgoing calls are impeded at telephone company central offices. It found exchange (three- or four-digit) blocking constitutionally flawed because it blocked all "dial-it" messages and ineffective since MAS numbers are not legally or technically required to be assigned to 976 exchanges. It rejected line number (seven-digit) blocking as inadequate to handle the large number of adult message providers currently in operation. The Commission also rejected message scrambling. Although scrambling is technologically feasible and relatively simple, the Commission concluded that it misallocated the burdens by requiring adults who desire to hear the messages to install descrambling devices at a cost of $15 or $20 each. 50 Fed.Reg. at 42,704 paras. 21, 22. The Commission concluded in the Second Report that the most effective means of restricting minors' access to dial-a-porn services, while at the same time minimizing restrictions on adults, was to require providers to send messages only to adults who first obtained an access code or paid by credit card. Id. at 42,707 para. 32.
In Carlin II, we found that the Commission's findings relative to network blocking were fully supported by the evidence and clearly not arbitrary and capricious. However, we held that the Commission did not adequately consider customer premises blocking and, in particular, the feasibility of shifting the cost of blocking to message providers. See
The Commission released its Third Notice of Proposed Rulemaking on July 18, 1986, some three months after our decision in Carlin II.2 The Commission first observed that total calling volume to the New York Telephone and New England Telephone and Telegraph Companies' ("NYNEX") "dial-it" system had declined from 471 million calls in 1984 (1.29 million per day) to 159 million calls in the months of January to April 1985 (435,000 per day). Of these, 97 million were made to "adult entertainment numbers" in 1984 (266,000 per day), while 26 million (72,000 per day) were made to such numbers between January and April 1985. In fact, NYNEX had reported that, during the first four months of 1985, total MAS calling volume had risen to 1.32 million calls per day while adult entertainment calls had dropped to 218,000 per day.
Next, the Commission briefly reviewed ways to restrict minors' access to these messages. It noted that New York Telephone Co. ("NYT") planned to install a separate, dedicated one-way system with screening capability. The so-called Varick Cut-Thru System would permit the dial-a-porn operator to implement an access code verification procedure. A screening mechanism at the telephone company's central office would send dial-a-porn calls to the providers' offices where access codes could be verified and the adult messages transmitted directly to the caller. The Commission noted that the Varick system would have a capability of 30,000 calls per hour, sufficient to handle the 9,089 calls per hour made to adult programming during early 1985. The Notice also discussed the costs and problems associated with customer blocking devices and scrambling. Finally, to comply with Carlin II, the Commission sought public comment on the feasibility, the costs and cost allocation, the benefits, and the efficacy of access codes, blocking equipment and scrambling in the region served by NYT. In particular, the Commission sought comment concerning the feasibility of implementing access codes in one-way systems such as NYNEX; the status of the proposed Varick system, and the ability of subscribers to obtain the identity, address, and number of adult telephone message providers.
In response to the Third Notice, the Commission received numerous comments and reply comments. Comments from the following entities are included in our record: Carlin; American Telephone and Telegraph Co. ("AT & T"); Ameritech Operating Companies; Bell Atlantic Telephone Companies; NYNEX; Pacific Bell; Phone Programs, Inc.; the Public Service Commission of the District of Columbia; Southwestern Bell Telephone Co.; Telecommunications Technology Corp.; American Civil Liberties Union ("ACLU"); BellSouth Corp.; United States Telephone Association; and the Media Law Clinic.
Carlin's comments disputed the Commission's conclusion that access codes were the least restrictive alternative. It argued that they are impermissibly overbroad and vague, that any written application procedure would chill expression and would violate individual rights of privacy, and that any requirement that access codes be cancelled on misuse or loss would be impracticable and ineffective. Carlin also contended that screening or blocking is not technically feasible. Noting that this court had already found limitations upon operational hours unconstitutional, Carlin argued that the only constitutionally permissible regulations were disclaimers and limitations on advertising.
AT & T commented that effective screening could be achieved in conjunction with one-way mass announcement services by connecting interactive access lines to each AT & T 900 service mass distribution center. However, the costs of such screening would be significant. AT & T concluded therefore that message scrambling is a cost-effective and simple alternative within non-interactive networks. It commented that, contrary to the Commission's earlier understanding of descrambling devices, e.g., Second Report, 50 Fed.Reg. at 42,704 para. 22, scrambling technology is not unduly cumbersome. AT & T reported that battery-operated portable descramblers are available at little cost. AT & T commented that customer-premises blocking would be both ineffective and unduly burdensome on persons wishing to restrict access. It also contended that message providers, not common carriers, should bear the costs of the screening procedures. AT & T noted that information concerning message providers may be disclosed pursuant to administrative subpoenas. They added that disclosure of identification information upon request could be a condition of tariff arrangements between telephone companies and message providers.
The Ameritech Operating Companies urged the Commission to focus on requirements for the providers, rather than the telephone companies. It endorsed a multiple-choice defense approach permitting providers to select the most feasible and economical defense for their particular operation and location. It suggested that permissible defenses include the use of credit cards, access codes, or scrambling; the provision of customer-premises blocking devices capable of seven- or ten-digit programming; and the furnishing of information identifying the names and telephone numbers of dial-a-porn services, coupled with billing notification. Ameritech reported the results of a survey conducted on its behalf assessing interest in customer premises blocking devices among randomly selected households with children under eighteen years of age. When price was not mentioned between 70.2% and 73.6% of households were interested in a device or service that would block dial-a-porn calls. However, only 3.3% to 5.4% indicated they would definitely purchase such a device or service if it cost only seventy-five cents per month. Similarly, at a one-time charge of $20, only 2.2% to 4.5% of households indicated they would definitely purchase the product or service.
Bell Atlantic Telephone Companies also endorsed a "menu" of alternative defenses but emphasized that the provider be required to implement the most effective means feasible given the characteristics of its operation. It urged that access codes be the preferred alternative. Bell Atlantic has already developed a billing system to prevent charging persons who call providers but lack an access code. Under its system, a caller is not charged for an audiotext call unless he or she remains on the line for more than ten or twenty seconds. Bell Atlantic requires all providers to notify callers that they are subject to a charge if they remain on the line. The Chesapeake and Potomac Telephone Co. of Maryland offers a similar service for intrastate calls. Bell Atlantic suggested, however, that billing notification be an alternative defense only where providers lack a two-way connection with the caller and the exchange carrier cannot accommodate an access code system. Bell Atlantic commented that several customer premises blocking devices are currently available. One such device, retailing at $89.95, permits callers to program and block up to ten different telephone numbers. Bell Atlantic was not aware of any service listing the telephone numbers of dial-a-porn providers. It stressed that providers must be responsible for administering and financing any customer premises blocking program.
NYNEX also supported a multiple-choice defense. It reported that NYT planned to replace its one-way mass announcement system with a state-of-the-art two-way system by mid-1988. Providing access code capability on NYT's existing 976 mass announcement system would cost over $21 million. However, NYNEX noted that the Varick system, which provides mass announcement capability to providers with telephone numbers beginning with the prefix 970, could be modified using the Varick Cut-Thru Approach to provide two-way connections. NYNEX noted that to acquire fifty to one hundred circuits, providers would incur one-time costs of approximately $36,000 to $73,000 and recurring monthly charges of $6,000 to $12,000. Installation would take one to three months. The Varick system accommodates 30,000 calls per hour. NYNEX observed that "[i]f all adult channels on both New York Telephone systems were put onto the Varick system and retained their current calling volumes, this capacity limitation would be exceeded." However, it noted that "compliance with the Commission's access code approach will undoubtedly reduce calling volumes."
NYNEX endorsed the use of customer premises blocking devices noting that such devices are available and not difficult to install, maintain, or program. NYNEX noted that allocating the cost of such devices presented difficult administrative and policy problems. While arguing that the telephone companies should not be required to subsidize the cost of such devices, NYNEX suggested that providers that provide such subsidies should have a defense to prosecution under section 223(b). NYNEX reported that NYT will provide the names and addresses of providers using its MAS system to assist those using customer premises blocking devices.
NYNEX also urged that a defense be available to providers that scramble their messages or request that NYT and AT & T block all incoming calls to their numbers, noting that both practices are effective and inexpensive means to restrict minors' access to dial-a-porn messages. Finally, NYNEX reported that adult entertainment calls on NYT had dropped from over 14 million a month in 1983 to below 5 million a month in 1986 and that they constituted 12.9% of all MAS calls, a decrease from 37.6% in 1983.
Pacific Bell commented that the access code and credit card payment requirements were the least restrictive, yet feasible and effective means to restrict minors' access to dial-a-porn. Pacific Bell noted that although it had announced plans to offer a customer premises blocking device to subscribers in earlier submissions to the Commission, it had since concluded that no device existed which could accommodate the total number of dial-a-porn services. Pacific Bell concurred with the Commission's Second Report that message scrambling was not well-tailored to the ends of the regulatory scheme because (1) it was impossible to enforce an age requirement for purchasing a descrambler; (2) such a requirement would not prevent minors from activating decoders purchased by adults; and (3) scrambling would prevent adults from obtaining access to dial-a-porn messages from pay telephones which are not equipped with descramblers.
Phone Programs, Inc., a provider of over sixty dial-it non-adult entertainment programs, also submitted comments. It expressed concern that the Commission might require cessation of all dial-it services, a resolution Phone Programs found unconstitutionally overbroad. It argued that neither the providers of non-obscene, non-indecent programming nor their customers should bear the costs associated with regulating obscene or indecent communication.
The Public Service Commission of the District of Columbia recommended that the FCC require access codes or credit card payment except where access codes were not feasible. In such cases it suggested that providers have a defense to prosecution if they sell at cost customer-premises blocking devices or if they scramble their messages.
Southwestern Bell Telephone Co. endorsed access codes, credit card payment, and scrambling. It argued that providers must bear the costs of the blocking or scrambling devices. Southwestern Bell noted that it provides upon request the name, address, and telephone number of all providers using its 976 services.
Telecommunications Technology Corporation submitted comments urging the Commission only to require providers to supply information to telephone subscribers. It contended that calls to 976 exchanges should be treated the same as calls to 555, 411, or 900 numbers--the customer should bear the cost of unauthorized calls from the customer's premises. Telecommunications Technology, however, did note that a customer premises blocking device is available for $89.95 which can be programmed to block certain 976 numbers or all calls except specific numbers.
In its reply comments, AT & T endorsed a "multiple choice" defense. It noted that scrambling and interactive access arrangements are the only technically feasible and economically practical means to restrict minors' access to adult telephone messages in non-interactive access arrangements. AT & T concluded that access codes could be used in conjunction with AT & T's 900 service and NYT's Varick Cut-Thru system if message providers purchased dedicated voice-grade access facilities.
Bell Atlantic submitted reply comments contending that access codes were feasible, citing the millions of people who used access codes to place long distance calls. Bell Atlantic added that where access codes were not possible, providers should be able to use scrambling as a defense. It also noted that it no longer believed that billing notification alone should be a defense since Bell Atlantic, and many other exchange carriers, already provided billing notification for audiotext services. It therefore recommended that billing notification be an adjunct to scrambling.
BellSouth Corp., South Central Bell Telephone Co., and Southern Bell Telephone and Telegraph Co. ("BellSouth") submitted reply comments endorsing a "multiple choice" approach. They noted that their two-way system can accommodate access codes and credit card payment.
In its reply comments, Pacific Bell noted that network blocking was not feasible in its region; it would cost $25 million, yet not be able to handle probable calling volumes or operate without administrative difficulties. Pacific Bell added that its 976 network could not accommodate providers' requests to block all incoming interstate calls.
Southwestern Bell Telephone Co. commented in reply that network blocking was prohibitively expensive and ineffective. It reiterated its strong opposition to proposals that local exchange companies subsidize customer premises blocking devices. It suggested that the publication of lists of dial-a-porn telephone numbers would lead to increased calls from minors. In response to Carlin's suggestion that a five-second warning urging minors to hang up precede all adult messages, Southwestern Bell commented that customers who did hang up would still be charged for the calls.
United States Telephone Association submitted brief reply comments stressing that local exchange carriers could not be held responsible for the nature of the providers' communications or for the costs of regulating such services.
In its reply comments the ACLU asserted that the responsibility of protecting children from exposure to sexually oriented materials must lie with parents, not the government. It argued that the underlying statute, section 223(b), was unconstitutional. The ACLU added that scrambling and customer premises blocking were less restrictive means of implementing that section than were access codes. It urged the Commission to rescind its rule, adopt the customer premises blocking approach, and allocate all of the associated costs to the telephone subscribers.
NYNEX's reply comments noted that it already provided billing notification for all interstate dial-a-porn calls but that it could not report local calls on customers' bills without extensive and expensive modifications to NYT's system. NYNEX did not object to providers' inserting messages instructing callers that the messages were intended for adults only, but added that the calling parties would be charged even if they hung up after hearing the warning message. It added that, upon a customer's request and payment, it would install a standard network interface device to facilitate the installation of a customer premises blocking device.
The Media Law Clinic of New York Law School submitted a statement by John W. Olivo, Jr., a law student with training in electrical engineering. He proposed that a provider preface its message with a three-part tone burst designed to activate a listening device installed at the customer's premises. Upon "hearing" the tone burst, the device would immediately disconnect the telephone line, so that the caller could not hear the message. A "listening" device could be installed at the terminal block or at individual outlets. While such devices are not yet manufactured, Olivo suggested similar technology presently costs between $5 and $10. Southwestern Bell, Bell Atlantic, and NYNEX commented favorably on Olivo's proposal, though the latter two added that the system needed further study.
In the Third Report, the Commission stated that its objective was "to select the option effectively restricting access to the communications in question to adults which is the least intrusive upon protected forms of expression."
The Commission noted that since access codes could be used within the NYNEX system in conjunction with the Varick system, it was reestablishing access codes as a defense to prosecution in areas served by NYT. Id. at 2720 para. 39. The Commission considered the burden of filling out an application form to obtain an access code to be minimal. Id. at 2724 n. 24. It was not persuaded that the alleged reluctance of adults to disclose their identity to adult message providers made the access code plan intrusive. The Commission said:
Such disclosure is already undertaken when persons call live adult services and pay by credit card. We have not been informed that this method of payment has had any stifling effect on live adult message services. Disclosure of identity is also already entailed in normal billing operations by carriers for calls to public announcement service numbers. We additionally note that any disclosure encompassed in an access code system is not required to the government but to private interests who have invited callers to enter into a voluntary commercial transaction. Thus, the alleged reluctance of adults to disclose their identity arises from concerns relating to the commercial interests to whom the disclosure is made. In any event, we believe that these concerns are within the ability of the message provider to control or ameliorate by assurances of, and actual responsible use of, information obtained from callers.
Id.
The Commission also added scrambling as an available defense citing AT & T's figures that scrambling devices cost between $150 to $2,500 and descrambling devices cost approximately $15. Id. at 2720 para. 41. It suggested that "the message provider could use sale of descramblers as an additional business opportunity." Id. The Commission concluded that scrambling was less expensive than customer premises blocking and that the cost would be acceptable to message sponsors and their customers. Id. It observed that the regulation's effectiveness depended on a ban on sales of descramblers to minors. It urged states to amend existing regulations governing the sale of adult products to minors to prohibit the sale of descramblers to minors. Id. at 2722 para. 46. It suggested that all adult message providers adopt a uniform method of scrambling and directed AT & T to submit complete technical specifications for its scrambling product. Id. at 2722 para. 48.
The Commission concluded that billing notification would not by itself be an effective method of implementing section 223(b). Id. at 2721 para. 42. However, it found no feasibility or cost problems associated with billing notification for AT & T's 900 service. Id. at 2721 para. 44. Consequently, it announced an additional requirement that AT & T 900 service providers request billing notification as a prerequisite to obtaining a defense to prosecution. Id. at 2722 para. 47. The Commission directed AT & T to file appropriate tariff provisions providing for identification of calls to adult message sponsors on its dial-it service.3 Id.
The petition to review followed.
DISCUSSION
We reiterate the legal standard for analyzing the FCC's dial-a-porn regulations set forth in Carlin I,
because the regulation is content based--it does not apply to all dial--it services, but only to those transmitting obscene or indecent messages--we scrutinize it more closely.
Under this more exacting scrutiny, we must determine whether the regulation precisely furthers a compelling governmental interest. The interest in protecting minors from salacious matter is no doubt quite compelling. Such an interest must be served, however, only by "narrowly drawn regulations," that is, by employing means "closely drawn to avoid unnecessary abridgment." The Government bears the heavy burden of demonstrating that the compelling state interest could not be served by restrictions that are less intrusive on protected forms of expression. And the State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.
(Footnote and citations omitted.) See also City of Renton v. Playtime Theatres, Inc.,
The statute and the regulation were designed to protect minors from obscene speech, see, e.g., 129 Cong. Rec. S16,866 (daily ed. Nov. 18, 1983) (statement of Sen. Trible); 52 Fed.Reg. at 17,760, which is a compelling government interest. See Ginsberg v. New York,
In concluding that access codes were feasible in the NYNEX region, the Commission relied upon NYNEX's assertion that its replacement system will be able to provide two-way communication by mid-1988 and the assumption that the Varick Cut-Thru system is capable of handling adult entertainment services until then. The Commission noted that although under this approach, providers would incur estimated additional one-time charges of up to $73,000, and monthly recurring charges of up to $12,000, "[a]dult message sponsors have failed to provide any cost data suggesting that these costs are unreasonable in relation to the revenues obtained from adult message services provided over carrier public announcement offerings."
The Commission bore its burden of showing that the compelling government interest in protecting minors from obscene telephone messages could not be served by less restrictive means. It adequately considered the feasibility and costs of customer premises blocking equipment. Given reports that the cost of a device which could block outgoing calls or otherwise terminate a call to adult message providers ranged from $5 to $89, it reasonably assumed that $25 would be the average cost per household. It noted that providers would potentially be required to supply customer premises blocking devices to the entire country as section 223 envisions procedures that restrict interstate access to adult messages. In light of its determination that the devices could be easily disabled by minors and that they nevertheless blocked some calls by adults, the Commission reasonably concluded that the high cost associated with customer premises blocking was not justified.
Theoretically, a beep-tone device, suggested by the Media Law Clinic of New York Law School and qualifiedly supported by three telephone companies, would avoid the problems associated with access codes and scrambling, at a relatively low cost for providers and customers. The Commission observed that since it had not been shown that a significant percentage of households would use this beep-tone device, the device would not be effective in achieving the purposes of section 223, a conclusion having little or no evidentiary support in the record. However, as the Commission noted, the beep-tone device has not actually been manufactured, even in prototype. As some carriers raised questions concerning its technical feasibility, the Commission held that "substantial limitations exist with establishment of this device as a regulatory requirement at this time."
Of course, even the least restrictive means of regulation must be reasonable as assessed by balancing the limits on free speech against the benefits of the regulation. Here, the alternatives offered to the providers do not unreasonably restrict adults' access, especially given the proviso that the proceedings will be reopened if a beeper device or any other feasible and effective method becomes available that is less restrictive to adults' access. The FCC regulations are analogous to the requirements that sexually oriented materials be displayed behind blinder racks, M.S. News Co. v. Casado,
Petitioners argue that the FCC regulations and, in particular, the written application required for obtaining an access code, impermissibly chill the First Amendment rights of adults wishing to receive sexual messages over the telephone. They suggest that many adults will not exercise their First Amendment rights because they fear that the Government can discover their identities by using its subpoena power to obtain the providers' records.4 This argument essentially claims that the regulation even if valid as applied to Carlin is overbroad because it affects others not before the court. The traditional rule is that a party to which a statute may be applied constitutionally may not facially challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. New York v. Ferber,
Having found the regulations valid,5 we must now address the constitutionality of the underlying statute, 47 U.S.C. Sec. 223(b). Carlin argues that the statute is unconstitutionally defective in four ways: first, by its vagueness and overbreadth; second, because it violates due process; third, because it creates an impermissible national standard of obscenity; and fourth, because it constitutes an unconstitutional delegation of authority to the Commission.
As a preliminary matter, we note that we must construe the statute to avoid constitutional problems if it is susceptible to such a limiting construction. Crowell v. Benson,
Carlin's first argument is that the statutory language, "obscene or indecent," is vague and overbroad. The statute as originally proposed by Rep. Thomas J. Bliley, Jr., and as adopted by the Committee on Energy and Commerce used the words "obscene, lewd, lascivious, filthy, or indecent." H.R. 2755 Sec. 8(b)(1)(A), reprinted in H.R.Rep. No. 356, 98th Cong., 1st Sess. 3 (1983), 1983 U.S.Code Cong. & Admin.News 2219. Rep. Bliley later accepted and cosponsored a Judiciary Committee amendment evidently engineered by Rep. Robert W. Kastenmeier omitting the words "lewd, lascivious, filthy," on the following basis:
This change is merely to clarify that Congress intends to be consistent with Supreme Court rulings on obscenity which require a violation of community standards and an appeal to prurient interests. In Manual Enterprises v. Day,
I would observe as an aside that the ruling in Pacifica clearly affirms the FCC's ability and authority to examine material to determine whether it is obscene or indecent and to assess fines on that basis. This amendment clarifies that question and obviates the need for the FCC's pending inquiry on that issue, though I believe it was absurd for the FCC to ever consider their authority in that area questionable, based on Pacifica.
129 Cong.Rec. H10,559, H10,560 (daily ed. Nov. 18, 1983) (statement of Rep. Bliley). See also 129 Cong.Rec. E5,966-67 (daily ed. Dec. 14, 1983) (statement of Rep. Kastenmeier).6
The use of "indecent" was clearly made with FCC v. Pacifica Foundation,
The Pacifica Court declined to endorse the Commission definition of what was indecent, saying instead:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place,--like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co.,
As we noted in Carlin I, the Court in Bolger v. Youngs Drug Products Corp.,
Bolger thus single[d] out the broadcasting media as subject to a "special interest of the federal government in regulation" that "does not readily translate into a justification for regulation of other means of communication."
Pacifica did not decide that the indecent broadcast "would justify a criminal prosecution."
Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability. " 'Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' "
Id. at 653,
We are also unpersuaded by Carlin's remaining facial constitutional challenges to section 223(b). The statute does not create an impermissible national obscenity standard any more than do the federal laws prohibiting the mailing of obscene materials, Smith v. United States,
Carlin's third argument that section 223 violates due process by authorizing the Commission to prosecute, adjudicate, and punish alleged violations is premature. See Seafarers Int'l Union v. United States Coast Guard,
Petition to review denied; mandate stayed for ninety days to permit parties and intervenors to comply with Commission regulations.
Notes
Of the United States District Court for the Southern District of New York, sitting by designation
The regulations and a summary of the Third Report were published in the Federal Register on May 12, 1987. 52 Fed.Reg. 17,760 (1987)
A summary of the Third Notice was published in the Federal Register on July 28, 1986. 51 Fed.Reg. 26,915 (1986)
AT & T has not taken any appeal so far as our record shows
Lending weight to Carlin's argument is the fact that the United States Attorney for the District of Utah, after obtaining indictments charging Carlin, two of its officers, an employee, and an actress with violating 47 U.S.C. Sec. 223(a) and 18 U.S.C. Secs. 1462 and 1465, attempted to subpoena records both from Carlin and from Mountain Bell concerning the identity of persons who voluntarily accessed Carlin's message service in New York. The indictments were later dismissed. United States v. Carlin Communications, Inc.,
We are also unpersuaded by Carlin's contention that the regulatory system now in place is an impermissible taking of Carlin's property in violation of the Fifth Amendment. See Penn Central Transp. Co. v. New York City,
"[T]he amendment deletes the terms "lewd, lascivious, filthy" from the bill, in accordance with Supreme Court cases limiting the regulation of speech to obscene or indecent language to the extent such regulation is permitted by the Constitution. See FCC v. Pacifica Foundation,
Cong.Rec. E5,966 (daily ed. Dec. 14, 1983) (statement of Rep. Kastenmeier)
In Miller the Supreme Court explained that before material may be found to be unprotected obscene speech, the trier of fact must conclude that:
"the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... [;] the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
"I would like to take issue with the restrictive interpretation by my colleague of the regulations to be issued by the FCC under section 223(b)(2) of my amendment. As noted in my own earlier remarks:
Congress intends that the FCC promulgate reasonable time, place, and manner restrictions calculated to restrict access to prohibited communications by persons under 18 years of age.
Under the Supreme Court's holding in Butler v. Michigan,
Cong.Rec. E5,966 (daily ed. Dec. 14, 1983) (statement of Rep. Kastenmeier). See also note 6 supra; 129 Cong.Rec. S16,866 (daily ed. Nov. 18, 1983) (statement of Sen. Trible)