Sable Communications of California, Inc. v. Federal Communications Commission, Edwin Meese, Attorney General of the United States of America

Sable Communications of California (Sable) filed this action in district court seeking declaratory and injunctive relief against the Federal Communications Commission (FCC). Sable claims that a statute and FCC regulation restricting its sexually suggestive telephone services violate its first amendment rights. The district court dismissed the case for lack of jurisdiction and, alternatively, on the ground that the case was not justiciable. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 . We affirm in part and reverse in part.

I

In 1983, Congress passed 47 U.S.C. § 223 (b), a statute imposing substantial civil and criminal sanctions on those who make obscene or indecent commercial telephone communications available to minors unless the provider has restricted access to such communications in accordance with FCC regulations. An FCC regulation, published in October 1985, requires providers of sexually suggestive messages to limit access either to credit card holders or to persons who transmit an access code issued after the provider has taken reasonable steps to ascertain that the applicant is at least eighteen years old. 47 C.F.R. § 64 .-201.

On April…