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TELEPHONE NEWS SYSTEM, INC. v. ILL. BELL TEL. CO.
August 14, 1963
TELEPHONE NEWS SYSTEM, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
ILLINOIS BELL TELEPHONE COMPANY, AN ILLINOIS CORPORATION, DEFENDANT, UNITED STATES OF AMERICA, INTERVENOR-DEFENDANT.
Before Hastings, Circuit Judge, and Julius J. Hoffman and
Will, District Judges.
The opinion of the court was delivered by: Julius J. Hoffman, District Judge.
Since 1956, plaintiff, Telephone News Systems, Inc., has
operated a telephone service supplying certain horse racing
information to anyone calling its telephone number. Plaintiff
receives the information over a "Sports Printer" leased from
United Press International News Service and makes voice
recordings several times a day, which recordings are heard by
those calling plaintiff's number. (See Telephone News System,
Inc. v. Illinois Bell Tel. Co., 210 F. Supp. 471 (N.D. Ill.
1962), an earlier opinion in this case.)
On April 25, 1962, Herbert J. Miller, Jr., Assistant
Attorney General in charge of the Criminal Division of the
Department of Justice, sent a letter to the Illinois Bell
Telephone Company representing that information in the files
of the Department of Justice revealed that telephone
facilities located at plaintiff's place of business were being
and would be used for transmitting and receiving gambling
information in violation of federal law. The letter stated
that pursuant to title 18 U.S.C. § 1084(d), the telephone
company was required to discontinue the leasing of these
facilities, after reasonable notice to the subscriber; it
suggested that five days' notice would constitute reasonable
notice under the circumstances. On April 27, 1962, the
telephone company notified plaintiff by letter that in
compliance with the Department of Justice directive,
plaintiff's telephone service would be discontinued on May 5,
1962. Plaintiff instituted this proceeding on May 4, 1962,
praying that the Illinois Bell Telephone Company be enjoined
from discontinuing service to plaintiff. The United States of
America, alleging that it is the real party in interest, has
been allowed to intervene as a defendant. Pending a final
determination of plaintiff's prayer for a permanent injunction,
this Court entered a temporary restraining order preventing
removal of plaintiff's telephone facilities.
The case was submitted to the Court on the pleadings,
stipulations of facts, and documents admitted into evidence.
After hearing arguments and examining the briefs filed by
counsel, the Honorable Hubert L. Will found that plaintiff was
using its telephone facilities in violation of section
28-1(a)(10) of the Illinois Criminal Code of 1961, Ill. Stat.
Ann. c. 38, § 28-1(a)(10) (1961), and that consequently
discontinuation of its telephone service was required by title
18 U.S.C. § 1084(d). Telephone News System, Inc. v. Illinois
Bell Telephone Co., supra. The Court further determined,
however, that plaintiff had raised a substantial question
concerning the constitutionality of section 1084(d) and,
pursuant to title 28 U.S.C. § 2282, 2284, directed that a
three-judge court be convened to consider the constitutional
objections raised by plaintiff.
Section 1084(d) provides as follows:
"When any common carrier, subject to the
jurisdiction of the Federal Communications
Commission, is notified in writing by a Federal,
State, or local law enforcement agency, acting
within its jurisdiction, that any facility
furnished by it is being used or will be used for
the purpose of transmitting or receiving
gambling information in interstate or foreign
commerce in violation of Federal, State or local
law, it shall discontinue or refuse, the leasing,
furnishing, or maintaining of such facility,
after reasonable notice to the subscriber, but no
damages, penalty or forfeiture, civil or
criminal, shall be found against any common
carrier for any act done in compliance with any
notice received from a law enforcement agency.
Nothing in this section shall be deemed to
prejudice the right of any person affected
thereby to secure an appropriate determination,
as otherwise provided by law, in a Federal court
or in a State or local tribunal or agency, that
such facility should not be discontinued or
removed, or should be restored."
Section 28-1(a)(10) of the Illinois Criminal Code provides
that a person commits illegal gambling when he
"[k]nowingly transmits information as to
wagers, betting odds, or changes in betting odds
by telephone, telegraph, radio, semaphore or
similar means; or knowingly installs or maintains
equipment for the transmission or receipt of such
Plaintiff contends that both of these provisions violate the
United States Constitution.
I. CONSTITUTIONALITY OF § 1084(d)
The plaintiff asserts that section 1084(d) is
unconstitutional (1) because of vagueness, (2) because it
authorizes the prosecution of crimes under the guise of a
civil remedy, and (3) because it deprives the telephone
subscriber of its remedies for wrongful termination of
1. Contention That Provision Is Void Because of Vagueness
Plaintiff contends that section 1084(d) creates a hitherto
unknown offense of transmitting or receiving "gambling
information" over wire communication facilities, and that
neither the section itself nor the statute as a whole supplies
any standards for determining what constitutes "gambling
information," but delegates the definition of this term to the
agencies charged with enforcement of this provision.
Plaintiff, quoting from, Connally v. General Construction Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926),
asserts that "men of common intelligence must necessarily
guess at its meaning and differ as to its application."
Plaintiff asserts that the term can include almost any type of
information, including, for example, the physical condition of
a hockey team, the weather conditions on the day of a football
game, or "stale" information about a sporting event or
A statute is void where it is so vague as to embrace acts
which it is unreasonable to presume were intended to be made
subject to its sanctions. Cf. Herndon v. Lowry, 301 U.S. 242,
258-259, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). The difficulty
with plaintiff's argument is that plaintiff incorrectly
assumes that section 1084(d) creates an offense of
transmitting or receiving gambling information in interstate
or foreign commerce. This provision, however, creates no
offense. Whether the transmission or receiving of information
about the weather or the physical condition of a team prior to
a sporting event is a crime under given circumstances is to be
determined not by reference to the term "gambling information"
in this provision, but by reference to federal, state, and
local criminal laws which proscribe the sending or receiving
of gambling information over wire communications facilities.
Section 1084(d) provides for discontinuation of communication
services that are put to certain unlawful uses.
The fifth amendment forbids the taking of property without
due process of law. It seems probable that one's right to
telephone service is a property right within the protection of
this amendment, inasmuch as under the common law and most
utility statutes a public
utility must serve all members of the public without
unreasonable discrimination. See Andrews v. Chesapeake &
Potomac Tel. Co., 83 F. Supp. 966 (D.D.C. 1949); Fay v. Miller,
87 U.S.App.D.C. 168, 183 F.2d 986 (1950). The requirement of
due process includes the requirement that a statute penalizing
conduct must give fair notice of what conduct is proscribed,
or it is void for "indefiniteness." Winters v. New York,
333 U.S. 507, 524, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter,
The concept of vagueness or indefiniteness is most often
employed with respect to criminal provisions. The requirement
as applied to a criminal statute has been described by the
United States Supreme Court, in a frequently quoted passage,
"A criminal statute must be sufficiently
definite to give notice of the required conduct
to one who would avoid its penalties, and to
guide the judge in its application and the lawyer
in defending one charged with its violation. But
few words possess the precision of mathematical
symbols, most statutes must deal with untold and
unforeseen variations in factual situations, and
the practical necessities of discharging the
business of government inevitably limit the
specificity with which legislators can spell out
prohibitions. Consequently, no more than a
reasonable degree of certainty can be demanded.
Nor is it unfair to require that one who
deliberately goes perilously close to an area of
proscribed conduct shall take the risk that he
may cross the line." Boyce Motor Lines, Inc. v.
United States, 342 U.S. 337, 340, 72 S.Ct. 329,
330, 331, 96 L.Ed. 367 (1952). (Footnotes
With regard to non-criminal provisions, the Court has said,
"The standards of certainty in statutes punishing for offenses
is higher than in those depending primarily upon civil
sanctions for enforcement." Winters v. New York, 333 U.S. 507,
515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948).
In examining a statutory provision challenged as vague and
indefinite, the federal courts must determine whether the
provision contains sufficient standards to identify the
conduct to which the penalty applies, and in so doing the
court is guided by the provision itself as read in the context
of the entire statute, and by the nature of the subjects with
which the statute is concerned. Connally v. General
Construction Co., 269 U.S. 385, 391-392, 46 S.Ct. 126, 70
L.Ed. 322 (1926). Moreover, the court, in maintaining a proper
perspective of its role in the review of legislation
challenged as unconstitutional, must appreciate that the
drafting of legislation calls for a type of judgment
"peculiarly within the responsibility and the competence of
legislatures." Winters v. New York, 333 U.S. 507, 526, 68
S.Ct. 665, 675, 92 L.Ed. 840 (1948) (Frankfurter, J.,
dissenting). Accordingly, the language of Congress is not
easily held "indefinite." It is appropriate to consider what
problem Congress was dealing with, in enacting the provision
in question, and why Congress chose the language enacted. Cf.,
Boyce Motor Lines v. United States, 342 U.S. 337, 341-342, 72
S.Ct. 329, 96 L.Ed. 367 (1952).
Section 1084(d) gives fair notice of the type of conduct
which will give rise to the discontinuation of telephone
service. It contains sufficient standards to show what type of
criminal offense will give rise to its application.
The statute in which subsection (d) appears provides some
indication of what Congress had in mind in using this term.
Subsection (a) of Section 1084 provides as follows:
In this subsection, Congress gave a specific example of the
kind of criminal offense it meant to comprise in subsection
Subsection (b) of this section specifically exempts certain
types of transmissions — those of information for use in news
reporting and those sent from a state where the betting is
legal to another state where betting is legal.
The legislative history of section 1084 clearly shows the
evil which Congress meant to suppress by this provision. The
House Committee on the Judiciary reported, with respect to
this section, as follows:
"Testimony before your Committee on the
Judiciary revealed that modern bookmaking depends
in large measure on the rapid transmission of
gambling information by wire communication
facilities. For example, at present the immediate
receipt of information as to results of a
horserace permits a bettor to place a wager on a
successive race. Likewise, bookmakers are
dependent upon telephone service for the placing
of bets and for layoff betting on all sporting
events. The availability of wire communication
facilities affords opportunity for the making of
bets or wagers and the exchange of related
information almost to the very minute that a
particular sporting event begins."
The Committee further stated,
"The purpose of the bill is to assist the
various States and the District of Columbia in
the enforcement of their laws pertaining to
gambling, bookmaking, and like offenses and to
aid in the suppression of organized gambling
activities by prohibiting the use of wire
communication facilities which are or will be
used for the transmission of bets or wagers and
gambling information in interstate and foreign
commerce." H.R. Rep. No. 967, 87th Cong., 1st
Sess. (1961), U.S. Code Congressional and
Administrative News 1961, p. 2631.
Thus, the principal problem with which Congress was dealing
was the suppression of professional gambling activities. It
has often been stressed in recent years that the threat of
organized crime is difficult to combat on the state or local
level, because it frequently crosses jurisdictional lines.
Johnson, Organized Crime: Challenge to the American Legal
System (Part I), 53 J.Crim.L., C. & P.S. 399, 418-19 (1962).
And its communications are often beyond the reach of state and
local law enforcement, because they are frequently interstate.
Id., (Part II), 54 J.Crim.L., C. & P.S. 1, 27 (1963).
Organized gambling, particularly bookmaking, is highly
dependent upon rapid communications. ABA Report on Organized
Crime and Law Enforcement 84 (1952); Bachelder, The
Suppression of Bookie Gambling by a Denial of Telephone and
Telegraph Facilities, 40 J.Crim.L., C. & P.S. 176 (1949). Thus
Congress considered that denial of wire communication
facilities to support such gambling activities would be an
effective way to curtail such activities.
The states, as well as the federal government, have employed
regulation of communication facilities as a means to curtail
professional gambling activities, particularly off-track
betting, and a number of states have enacted statutes or
adopted administrative procedures to prohibit the transmission
of information with intent that it be used in a gambling
operation, to ban racing information for a given period of
time after a race, or to deny wire services where the services
are used to further commercial gambling activities. Johnson,
(Part II), supra at 27; Bachelder, supra.
In light of the history of this effort to combat
professional gambling activities, the language of subsection
(d) clearly identifies the type of federal,
state, or local criminal offense meant to be included. With
due regard to the context of the statute, the nature of the
subject matter dealt with, and the history of the legislation,
we may say that facilities are used to transmit or receive
gambling information in violation of federal, state, or local
law, when those facilities are used in violation of a federal,