RECOMMENDATION 6

Part: 
Three
Chapter: 
2

Congress should enact legislation to prohibit the transmission of obscene material through the telephone or similar common carrier

This Commission has received substantial evidence of the use of the telephone to transmit obscene material.[127] Dial-A-Porn services offer the caller the opportunity to participate in obscene telephone conversations or to receive obscene messages.[128]

Two years ago, the Congress enacted legislation amending section 223 of the Communications Act of 1934.[129] 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.[130] 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.[131] Carlin Communications challenged the FCC regulation.

On review, the United States Court of Appeals for the Second Circuit found the regulations were invalid.[132] 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.[133] In dicta, the court said the FCC should have given more serious consideration to 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."'

On October 16, 1985, the FCC announced new regulations governing Dial-A-Porn.[135] 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.[136]

Carlin challenged the new FCC regulations, and on April 11, 1986, the Court of Appeals granted their petition and set aside the regulations as applied to Carlin.[137] The Court of Appeals relied on statements from New York Telephone that access or identification codes are not technologically feasible in NYT's network,[138] 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. . . ."[139] The Court again referred to "blocking" as a less restrictive means of regulating Dial-A-Porn.[140] Blocking devices installed on the telephone customer's own terminal equipment could be used to block access to one or more pre-selected telephone numbers.[141] 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.[142]

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 well tailored enough to regulate the problem.[143] Now the Court has ruled that access codes are unduly restrictive as applied to Carlin in New York, but may be permissible elsewhere.[144] The "blocking" option advanced by the Court has serious practical limitations. Blocking may not be available to all telephone customers.[145] Those who obtain the service would either lose access to all "976" numbers,[146] or have to pre-select which numbers they wanted blocked.[147] Few parents would have sufficient knowledge of the multitude of Dial-A-Porn numbers to be able to pre-select 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[148] 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.[149]

Notes

The Bill provides:

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 1. SHORT TITLE.

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

SECTION 2. 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 "paragraph (1) and (2)"; and
  4. by redesignating paragraphs (3), (4), and (5) as paragraphs (2), (3), and (4), respectively.
  1. See, Los Angeles Hearing, Vol. I, William A. Dunkle, p. 248; Los Angeles Hearing, Vol. I, Judith F. Trevillian, p. 263; Los Angeles Hearing, Vol. I, Brent D. Ward, p. 225. The most commercially prolific form of dissemination of pornographic material is through services commonly referred to as "Dial-A-Porn."
  2. See, The discussion of the Dial-A-Porn services available for further information.
  3. See, 47 U.S.C. S223(b)(1).
  4. Id.
  5. 49 Fed. Reg. 24, 996 (June 4, 1984).
  6. Carlin Communications, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984).
  7. Id., p. 121.
  8. Id., pp. 122-23.
  9. 50 Fed.Reg. 42699. (October 22, 1985).
  10. Id.
  11. Carlin Communications, Inc. v. FCC, No. 85-4158 (2nd Cir. 1986). The Court noted that "the stay, however, is granted only at the behest of the petitioners here ... and applies only to Dial-A-Porn service providers on the New York Telephone (NYT) system. (Slip opinion, p. 3).
  12. Id. slip op. at 11 and 19. The Court noted that the access codes are probably technologically possible in most other parts of the country. See, slip op., p. 4.
  13. Id., p. 23.
  14. Id., pp. 23-24.
  15. Id., pp. 6-7.
  16. Id., p. 23.
  17. 749 F.2d, p. 121.
  18. Carlin Communications, Inc. v. FCC, supra, slip op., pp. 3-4.
  19. See, Los Angeles Hearing. Vol. I. William Dunkle, p. 254.
  20. Id.
  21. Carlin Communications, Inc. v. FCC, supra, slip op., p. 6.
  22. 47 U.S.C. S223(8)(2).
  23. 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.