RECOMMENDATION 34

Part: 
Three
Chapter: 
2

The Federal Communications Commission should use its full regulatory powers and impose appropriate sanctions against providers of obscene Dial-A-Porn telephone services

The term "Dial-A-Porn" has been applied to describe two types of obscene statements made over the telephone as a part of a commercial transaction. In the first instance, the caller dials a number and talks to an individual who makes sexual remarks in response to the stated desires of the particular caller.[313]

The caller pays a per minute rate and is billed on his or her credit card.[314] The conversation can last up to forty-five minutes.

The second type of transaction involves placing a call to a number with the "976" prefix. These numbers are part of the Mass Announcement Network Service (MANS) and provide the caller with a pre-recorded message similar to those giving the time of day or weather.[315] The message is sexually explicit and the caller is charged on his monthly telephone statement.[316] The provider of the message receives a payment from telephone company revenues calculated according to the local tariff. The telephone company receives the remainder.[317] In some cities, for example, the cost to the caller is two dollars with $1.45 going to the provider of the message and fifty-five cents to the telephone company.[318]

These Dial-A-Porn recordings include graphic descriptions, complete with sound effects, of lesbian and homosexual acts, sodomy, rape, incest, excretion, bestiality, sadomasochism, and other unlawful, violent or dangerous sexual acts involving adults and children.[319] In May of 1983, 800,000 calls a day were placed to Dial-A-Porn numbers in New York.[320] Approximately 180,000,000 calls were made to the same numbers in the year ending in February 1984.[321]

Carlin Communications, a leading provider of Dial-A-Porn services, earned $3,600,000 in 1984.[322] Pacific Bell reports that sexually explicit messages represent twenty-seven percent of all "976" calls so far in 1985.[323] Telephone companies explain the existence of "976" service as an opportunity to provide subscribers with a wide range of information as well as a source of revenue to keep telephone rates low.[324] The content of the telephone messages is solely within the control of the provider. New Jersey Bell, however, has reserved the right to review program content under their contract with providers.[325] The easy accessibility to Dial-A-Porn messages has given rise to a number of problems. Initially it should be noted that the telephone companies have issued numbers, upon the request of the providers, such as 976-FOXX, 976-4LUV, and 976-LUST.[326] Dial-A-Porn advertising is often misleading in that it refers to "free phone sex" when, in fact, the caller is billed either on his or her credit card or is charged as part of their monthly telephone statement.[327]

Since Dial-A-Porn numbers are openly advertised in pornographic magazines, newsstand racks, in convenience grocery stores, on public billboards and other readily available publications they are often discovered and used by minors unbeknownst to their parents. The telephone company may elect to disconnect the customer's service if they do not pay the toll charges.[328] Finally, there is concern over the long-term effects of Dial-A-Porn recordings on children who listen to them and may attempt to model their behavior after them. This is especially worrisome when descriptions of unlawful, violent and incestuous acts are associated with sexual arousal as in many of the Dial-A-Porn messages.

Two years ago, the Congress enacted legislation amending section 223 of the Communications Act of 1934.[329] This enactment prohibited the use of the telephone to make obscene or indecent communications for commercial purposes to anyone under eighteen years of age except where in compliance with regulations issued by the Federal Communications Commission. The FCC promulgated regulations making it an exception for the provider of a recorded message if the message was made available only between the hours of 9:00 p.m. and 8:00 a.m. eastern standard time or if the caller made prepayment by credit card in the case of a "live" message.[330] Carlin Communications challenged the FCC regulations.

On review, the United States Court of Appeals for the Second Circuit found the regulations were invalid.[331] The court found that the government had a compelling interest in protecting minors from salacious material, but that the FCC regulations were not well tailored to meet their objectives, which could be achieved by less restrictive alternatives.[332] In dicta, the court said the FCC should have given more serious consideration to two other options such as "blocking" and access codes. Through "blocking" a subscriber can have access to all "976" numbers blocked from his telephone. Access codes could be issued to subscribers over eighteen who would have to dial the code in order to receive the sexually explicit message.[333]

On October 16, 1985, the FCC announced new regulations governing Dial-A-Porn.[334] Under the new regulations, Dial-A-Porn services must require either an authorized access or identification code or they must obtain prepayment by credit card before transmission of a sexually explicit message.[335]

Carlin challenged the new regulations, and on April 11, 1986, the Court of Appeals granted their petition and set aside the regulations as applied to Carlin.[336] The FCC now finds itself in a dilemma, since the latest set of regulations have been found unduly restrictive as applied to Carlin in New York, but possibly sustainable elsewhere.[337]

The Court of Appeals relied on statements from New York Telephone that access or identification codes are not technologically feasible in NYTS network,[338] and found that "the record does not support the FCC's conclusion that the access code requirement is the least restrictive means to regulate Dial-A-Porn. . . ."[339] The Court again referred to "blocking" as a less restrictive means of regulating Dial-A-Porn.[340] Blocking devices installed on the telephone customers' own terminal equipment could be used to block access to one or more pre-selected telephone numbers.[341] The court also suggested that the FCC should have considered the feasibility of passing along the cost of customer premises blocking equipment to the providers of Dial-A-Porn and/or the telephone companies.[342]

The latest decision by the Second Circuit leaves the state of the law regarding dial-a-porn even more uncertain. The two attempts by the FCC to promulgate regulations in accordance with the federal statute have failed. The Court of Appeals found earlier that limitations on the hours that Dial-A-Porn messages may be offered were not tailored enough to regulate the problem.[343] Now the court has ruled that access codes are unduly restrictive as applied to Carlin in New York, but may be permissible elsewhere.[344] The "blocking" option advanced by the court has serious practical limitations. Blocking may not be available to all telephone customers.[345] Those who obtain the service would either lose access to all "976" numbers[346] or have to pre-select which numbers they wanted blocked.[347] Few parents would have sufficient knowledge of the multitude of Dial-A-Porn numbers to be able to preselect them and prevent their children from calling them by use of a blocking device. And minors would still be free to make the calls from telephones not equipped with blocking devices.

The provision of the federal statute permitting Dial-A-Porn messages to be provided in accordance with FCC regulations[348] has proven unworkable in addition to providing a "safe harbor" provision for Dial-A-Porn merchants. Congress should enact legislation that simply prohibits the transmission of obscene material through the telephone or similar common carrier.[349]

The regulations that have been invalidated by the Second Circuit were based on the faulty premise that obscene telephone communications are entitled to some measure of protection so long as they occur between or among "consenting adults". The United States Supreme Court rejected this basic argument in Paris Adult Theatre I v. Slaton.[350] In Slaton, a motion picture theatre was convicted for showing obscene films.[351]

Its defense was that no one under twentyone years of age was admitted and that showing the films to consenting adults was protected under the right to privacy.[352] The Court affirmed the conviction, with Chief Justice Burger writing for the majority.

 

We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia supreme court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante, at 18-20, Stanley v. Georgia, 394 U.S. at 567, Redrup v. New York, 386 U.S. 767, 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material.[353]

 

The Chief justice went on to cite other legitimate interests which permitted the regulation of obscene material including maintenance of the "quality of life and the total community environment." [354] The Court also cited the statement of former Chief Justice Earl Warren in Jacobellis v. Ohio,[355] that, "there is a right of the Nation and the States to maintain a decent society."[356]

The telephone is also uniquely accessible to children. Children have easy and often unsupervised access to telephones in their homes and learn to use the telephone at an astonishingly early age. A child need only dial seven numbers to reach a recorded message. Additionally, Dial-A-Porn numbers are openly published and advertised in publications which are sold in racks on the public streets and available to purchasers of any age group. Dial-A-Porn numbers may also be passed along from one child to another.

As a final consideration, the telephone industry, like broadcasting industry, is closely regulated. As a condition of its continued existence a carrier must act in the public interest. The FCC, whose entire regulatory scheme is based on serving the public interest could act to protect these same interests against obscene communications over the telephone if it chose to do so. The time is long overdue for the FCC to exercise its full regulatory powers with respect to this lucrative brand of obscenity.

Notes

  1. Los Angeles Hearing, Vol. I, Brent Ward, p. 227.
  2. Id.
  3. Id., p. 228.
  4. Id., pp. 229-30./
  5. Id., p. 229.
  6. Id.
  7. Id., p. 231
  8. Id., p. 228.
  9. Id.
  10. Id., p. 229.
  11. Los Angeles Hearing, Vol. I, William Dunkle, p. 251.
  12. Id., p. 150.
  13. Contract between New Jersey Bell and Sundial Productions. #C115185-2, (Dec. 21, 1982).
  14. Hollywood Press, Aug. 9, 1985.
  15. Los Angeles Hearing, Vol. I, Judith Trevillian, p. 264.
  16. Id.
  17. See, 47 U.S.C. S223(b)(1) et. seq.
  18. 49 Fed. Reg. 24, p. 996 (June 4, 1984).
  19. Carlin Communications, Inc. v. FCC, 749 F.2d, p. 113 (2d Cir. 1984).
  20. Id.
  21. Id.
  22. 50 Fed. Reg. 42699 (Oct. 22, 1985).
  23. Id.
  24. Carlin Communications, Inc. v. FCC, No. 85-4158 (2d Cir. Apr. 11, 1986).
  25. Id., pp. 3-4.
  26. Id., pp. 11, 19. The Court noted that the access codes are probably technologically feasible in most other parts of the country. See, Id., p. 4.
  27. Id., p. 3.
  28. Id., pp. 23-24.
  29. Id., pp. 6-7.
  30. Id., p. 23.
  31. F.2d, p. 121.
  32. Carlin Communications, Inc. v. FCC, supra, slip op., pp. 3-4.
  33. See, Los Angeles Hearing, Vol. I, William Dunkle, p. 254.
  34. Id.
  35. Carlin Communications, Inc. v. FCC, supra, slip op., p. 6.
  36. 47 U.S.C. S223(f)(2).
  37. In an attempt to address the Dial-A-Porn issue, Senate Bill 1090 has been introduced by Senators Jesse Helms, (RNC, John East (R-NC) and Jeremiah Denton (R-Ala) to amend Section 223 of the Communications Act of 1934. The bill provides:
  38. Whoever-"(A) in the District of Columbia or in interstate or foreign communications, by means of telephone, makes (directly or by recording device) any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent, regardless of whether the maker of such comments placed the call or (B) knowingly permits any telephone facility under such person's control to be used by any purpose prohibited by subparagraph (A). Shall be fined not more than $50,000 or imprisoned not more than six months, or both."

    Additionally, Rep. Thomas J. Bliley (R-Va.) has introduced H. R. 4439 which would amend Section 223 of the Communications Act and eliminate the provision requiring the FCC to issue regulations:

    H. R. 4439

    A Bill to amend the Communications Act of 1934 to restrict the making of obscene and indecent communications by telephone.

    "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Section I, Short title.

    This Act may be cited as the "Telephone Decency Act of 1986".

    Section II, Amendments.

    Section 223(B) of the Communications Act of 1934 is amended-

    1. in paragraph (1)(A), by striking out "under eighteen years of age or to any person without that person's consent";
    2. by striking out paragraph (2);
    3. in paragraph (4), by striking out "paragraphs (1) and (3)" and   inserting in lieu thereof "paragraphs (1) and (2)"; and
    4. by redesignating paragraphs (3), (4), and (5) as paragraphs (2), (3), and (4), respectively.
  39. 413 U.S., (1973), p. 49.
  40. Id.
  41. Id.
  42. Id., p. 57
  43. Id., p. 58.
  44. 378 U.S., (1964), p. 184.
  45. Id., p. 199.