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AMERICAN INFO. ENTERPRISES v. THORNBURGH

August 13, 1990

AMERICAN INFORMATION ENTERPRISES, INC.; DIAL INFORMATION SERVICES, CORP. OF NEW YORK; FABULOUS ASSOCIATES, INC.; SOURCE COMMUNICATIONS, INC.; AND TELE-PRO COMMUNICATIONS CORP., PLAINTIFFS,
v.
RICHARD L. THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

  OPINION AND ORDER

Plaintiffs move, pursuant to Federal Rule of Civil Procedure 65(a), for a preliminary injunction enjoining the enforcement of that portion of the 1989 amendment to the Communications Act of 1934, 47 U.S.C. § 223(b) and (c) ("the Helms Amendment"), which regulates the communication of "indecent" speech over the telephone. Plaintiffs, who refer to themselves as "information providers" ("IP's"), operate various types of commercial telephone services, which offer listeners, either exclusively or in part, a sexually explicit content. Plaintiffs claim that the Helms Amendment violates the First and Fifth Amendments to the Constitution.*fn1 The Court held evidentiary hearings on March 20, 1990 and May 9, 10, 14, 15, 16, 1990 on the merits of preliminary injunctive relief. The Court refrains from consolidating those hearings with a trial on the merits of plaintiffs' request for a permanent injunction, pursuant to Federal Rule of Civil Procedure 65(a)(2), in deference to the government's request for time to gather additional evidence before a trial.

I. The Helms Amendment's Restrictions on Indecent Speech

The Helms Amendment sets forth civil and criminal penalties for the knowing transmission of obscene and indecent communications by means of telephone. The portion of 47 U.S.C. § 223, of which plaintiffs seek to enjoin the enforcement, is as follows:

  (b) PROHIBITED COMMERCIAL PURPOSES; DEFENSE TO
  PROSECUTION

(1) [bans obscene communications]. . . .

(2) Whoever knowingly —

      (A) within the United States, by means of
    telephone, makes (directly or by recording
    device) any indecent communication for commercial
    purposes which is available to any person under
    18 years of age or any other person without that
    person's consent, regardless of whether the maker
    of such communication placed the call; or
      (B) permits any telephone facility under such
    person's control to be used for an activity
    prohibited by subparagraph (A), shall be fined
    not more than $50,000 or imprisoned not more
    than six months, or both.
    (3) It is a defense to prosecution under
    paragraph (2) of this subsection that the
    defendant restrict access to the prohibited
    communication to persons 18 years of age or
    older in accordance with subsection (c) of this
    section and with such procedures as the [Federal
    Communications] Commission may prescribe by
    regulation.
    (4) In addition to the penalties under paragraph
    (1), whoever, within the United States,
    intentionally violates paragraph (1) or (2)
    shall be subject to a fine of not more than
    $50,000 for each violation. For purposes of this
    paragraph, each day of violation shall
    constitute a separate violation.
    (5)(A) In addition to the penalties under
    paragraphs (1), (2), and (5), whoever, within
    the United States, violates paragraph (1) or (2)
    shall be subject to a civil fine of not more
    than $50,000 for each violation. For purposes of

    this paragraph, each day of violation shall
    constitute a separate violation.
    (B) A fine under this paragraph may be assessed
    either —
      (i) by a court, pursuant to civil action by
    the Commission or any attorney employed by the
    Commission who is designated by the Commission
    for such purposes, or
      (ii) by the Commission after appropriate
    administrative proceedings.
  (6) The Attorney General may bring a suit in the
    appropriate district court of the United States
    to enjoin any act or practice which violates
    paragraph (1) or (2). An injunction may be
    granted in accordance with the Federal Rules of
    Civil Procedure.
  (c) RESTRICTION ON ACCESS TO SUBSCRIBERS BY COMMON
  CARRIERS; JUDICIAL REMEDIES RESPECTING
  RESTRICTIONS
  (1) A common carrier within the District of
    Columbia or within any State, or in interstate
    or foreign commerce, shall not, to the extent
    technically feasible, provide access to a
    communication specified in subsection (b) of
    this section from the telephone of any
    subscriber who has not previously requested in
    writing the carrier to provide access to such
    communication if the carrier collects from
    subscribers an identifiable charge for such
    communication that the carrier remits, in whole
    or in part, to the provider of such
    communication.
  (2) Except as provided in paragraph (3), no cause
    of action may be brought in any administrative
    agency against any common carrier, or any of its
    affiliates, including their officers, directors,
    employees, agents, or authorized representatives
    on account of —
    (A) any action which the carrier demonstrates
    was taken in good faith to restrict access
    pursuant to paragraph (1) of this subsection; or

(B) any access permitted —

      (i) in good faith reliance upon the lack of
    any representation by a provider of
    communications that communications provided by
    that provider are communications specified in
    subsection (b) of this section, or
      (ii) because a specific representation by the
    provider did not allow the carrier, acting in
    good faith, a sufficient period to restrict
    access to communications described in subsection
    (b) of this section.
  (3) Notwithstanding paragraph (2) of this
    subsection, a provider of communications
    services to which subscribers are denied access
    pursuant to paragraph (1) of this subsection may
    bring an action for a declaratory judgment or
    similar action in a court. Any such action shall
    be limited to the question of whether the
    communications which the provider seeks to
    provide fall within the category of
    communications to which the carrier will provide
    access only to subscribers who have previously
    requested such access.

47 U.S.C.A. § 223(b) and (c) (Supp. 1990) (emphasis added).

Pursuant to Section 223(b)(3), if an IP complies with both the restrictions set forth in Section 223(c) and the regulations promulgated by the Federal Communications Commission (FCC), then that IP can communicate indecent speech without being subject to criminal or civil penalties. The restriction set forth by Section 223(c)(1) is that a common carrier (i.e., the telephone company) either must refrain from engaging in billing and collection for an IP or else the telephone company must limit access to the IP to those telephone customers who have presubscribed in writing requesting access to the IP's' services.

The FCC regulations, adopted in June 1990 and to become effective August 14, 1990, further provide that IP's can only qualify for the safe harbor from the Section 223(b)(2)'s penalties for indecent communications if: (1) the IP has notified the common carrier in writing that he or she is providing a telephone service with an indecent content; and (2) the IP either (a) "[r]equires payment by credit card before transmission of the message;" (b) "[r]equires an authorized access or identification code before transmission of the message"; or (c) "scrambles the message using any technique that renders the audio unintelligible and incomprehensible to the calling party unless that party uses a descrambler." 47 C.F.R. 64.201((a), reprinted in, In re Regulations Concerning Indecent Communications by Telephone, Gen. Docket No. 90-64, Report and Order, released June 29, 1990 [hereinafter cited as "Report and Order"].

All parties agree that this Court does not have jurisdiction to review the constitutionality of the FCC regulations, pursuant to 28 U.S.C. § 2342(1) which grants Circuit Courts exclusive jurisdiction "to enjoin . . . or to determine the validity of" final regulations ordered by the FCC. Accordingly, the only restriction on indecent speech which this Court will review are the statute's effect of limiting an IP's communication of indecent speech over telephone lines by causing IP's either to engage in billing and collection independent of the telephone company or to be subject to compliance with the telephone company's implementation of a system of written pre-subscription.

II. Justiciability

A. Extent of Plaintiffs' Standing

Both sides have stipulated before the Court that plaintiffs represent the constitutional interests of their listeners, as well as their own interests as speakers. The Supreme Court made a similar recognition in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), where, even though the plaintiff was the corporate speaker rather than the listener, it rested its decision in part on "the [First Amendment] right of the public to receive suitable access." Id. at 390, 89 S.Ct. at 1806 (emphasis added); see also Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1822-23, 48 L.Ed.2d 346 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581-82, 33 L.Ed.2d 683 (1972) (surveying history of First Amendment rights of listeners).

B. Ripeness

In a challenge to a prior version of the Helms Amendment, the Second Circuit held that a determination of whether the challenge is ripe depends upon "`a twofold inquiry evaluating the hardship to the parties of withholding judicial determination and evaluating whether the issues are fit for judicial determination.'" Carlin Communications, Inc. v. FCC, 749 F.2d 113, 123 n. 20 (2d Cir. 1984) [hereinafter Carlin I] (quoting Seafarers Int'l Union v. United States Coast Guard, 736 F.2d 19, 26 (2d Cir. 1984)). The Court finds that the case is ripe because plaintiffs allege that the statute is directly aimed at constitutionally protected speech and their business interests, see Roe v. Meese, 689 F. Supp. 344, 345 (S.D.N Y 1988) (analogous challenge to constitutionality of earlier version of Helms Amendment) (citing Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) ("injury in fact" requirement in First Amendment context)), and because enforcement of the statute is now imminent.

By letter dated March 19, 1990, the government informed the Court that it would refrain from enforcing the statute until the FCC promulgated regulations in connection with the statute. The FCC regulations appeared in the Federal Register on July 16, 1990 and stated that on August 15, 1990 the regulations would become effective. 55 Fed.Reg. 28,915 (1990). Accordingly, there is an imminent threat of enforcement of the Helms Amendment as of August 15, 1990 and this First Amendment challenge is ripe for judicial determination.

III. Preliminary Injunction Standard

In the Second Circuit, a party seeking injunctive relief must establish: (1) that the injunction is necessary to prevent irreparable harm and (2) either (a) a likelihood of prevailing on the merits of the case or (b) the existence of both (i) sufficiently serious questions going to the merits as to make them a fair ground for litigation and (ii) a balance of the hardships tipping decidedly toward the movant. Reuters Limited v. United Press International, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (citations omitted). The Second Circuit also holds that:

  where the moving party seeks to stay government
  action taken in the public interest pursuant to a
  statutory or regulatory scheme, the district court
  should not apply the less rigorous
  fair-ground-for-litigation standard and should not
  grant the injunction unless the moving party
  establishes, along ...

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