Sable Communications of California, Inc. v. Federal Communications Commission

■ MEMORANDUM DECISION

BACKGROUND

Effective July 1, 1988, 47 U.S.C. § 223 (b) was amended by the Telephone Decency Act to provide:

Plaintiff, a major purveyor of 976 IAS dial-a-porn messages, has moved for a preliminary injunction (the parties having stipulated that pending the hearing, defendants will not enforce § 223(b) against plaintiff).

A concrete controversy exists. See Sable Communications, Inc. v. FCC, 827 F.2d 640 (9th Cir.1987) (addressing challenge to pre-amended § 223(b)). In fact, plaintiff has been “chilled” — it has “softened” its messages. Since invasion of First Amendment rights is at issue, plaintiff has unquestionably met the irreparable injury requirement. Elrod v. Burns, 427 U.S. 347, 373 , 96 S.Ct. 2673, 2689 , 49 L.Ed.2d 547 (1976).

INDECENT SPEECH

What is at issue is the breadth to be given to FCC v. Pacifica Found., 438 U.S. 726 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (1978). The Court concludes that Pacifica does not reach § 223(b); thus, that in the final analysis the statute in its present form is overbroad and unconstitutional, at least insofar as it applies to “indecent” communications.

First, Pacifica itself emphasized its own narrowness. Id. at…