has received a Written Notice, as set forth in Paragraph 4(A) hereof.
I. Notwithstanding the procedures set forth in Paragraphs 4(A) through 4(H) hereof, nothing herein shall preclude Pacific Bell from seeking by ex parte application at any time an order allowing temporary disconnection of a program (or any modification thereof) identified by Pacific Bell as constituting an Indecent and/or Harmful Matter Program, pending a full review and hearing on the matter. Pacific Bell shall provide the affected information provider with no less than two court days' notice of any such ex parte application.
5. The orders and decisions of the California Public Utilities Commission ("CPUC") require Pacific Bell and GTEC to notify subscribers of the option to block access to 900-303. Subject to the orders, decisions and jurisdiction of the CPUC, Pacific Bell and GTEC may charge information providers for the costs associated with customer initiated blocking.
6. The provision by Pacific Bell of a separate prefix number for all telephone messages which constitute Harmful Matter (pursuant to California Public Utilities Code § 2884(b), or otherwise) is constitutional under federal law.
7. The preliminary injunction against enforcement of California Public Utilities Code section 2884.5, as set forth in the Court's Order of October 27, 1989, and as modified by the Court's Order of May 15, 1990, is hereby dissolved and vacated.
8. Compliance with the Helms Amendment to the Communications Act of 1934, 47 U.S.C. § 223(b) et seq., and applicable F.C.C. regulations shall, without limitation, be deemed to be compliance with the requirements of California Public Utilities Code section 2884.5. Without limitation, the termination of billing and collection services for information providers furnishing Indecent and/or Harmful Matter Programs pursuant to this Judgment and the Stipulation and Order filed in this action on August 20, 1991, constitutes compliance by Pacific Bell and GTEC with the requirements of California Public Utilities Code section 2884.5.
9. Notwithstanding the provisions of Paragraph 8, above, this Judgment, entered pursuant to the stipulation of the parties, shall not be construed as or constitute an agreement by Pacific Bell and/or GTEC that they or either of them are subject to the requirements of California Public Utilities Code section 2884.5. This Judgment does not address and shall have no res judicata or collateral estoppel effect with respect to the issue of whether California Public Utilities Code section 2884.5 applies to telephone carriers, and this Judgment is without prejudice to or waiver of Pacific Bell's and GTEC's right to continue to maintain that California Public Utilities Code section 2884.5 has no such application.
10. In seeking and acting on the migration procedures set forth in the Order filed in this action on May 15, 1990 and the Stipulation and Order filed in this action on August 20, 1991, Pacific Bell acted in good faith pursuant to 47 U.S.C. § 223(c)(2), and any access to an information provider program that results from Pacific Bell's adherence to the notification and migration procedure set forth in Paragraph 4, above, within the meaning of "access permitted" pursuant to 47 U.S.C. § 223(c)(2)(B).
11. This court shall retain jurisdiction over this matter, and this litigation shall serve as a continuing docket for resolution of future disputes, if any, concerning the continued implementation of migration as set forth herein.
12. Pacific Bell's or GTEC's determination that any given program constitutes an Indecent and/or Harmful Matter Program and belongs on the 900-303 prefix shall have no prejudicial effect on the rights of that information provider to challenge that designation.
13. This Judgment, entered pursuant to the parties' stipulation, shall not be construed as or constitute an agreement by Pacific Bell and/or GTEC to continue to transport Indecent and/or Harmful Matter Programs. This Judgment does not address and shall have no res judicata or collateral estoppel effect with respect to, and is without prejudice to or waiver of, Pacific Bell's right to continue to seek implementation of its Disconnection Policy with respect to total disconnection of Indecent and/or Harmful Matter Programs, or Plaintiffs' right to oppose denial of transport or implementation of such policy.
14. Nothing contained herein shall preclude plaintiffs from changing the prefix of any program on the 900-303 prefix to another information service prefix of Pacific Bell and/or GTEC, provided such program does not constitute an Indecent or Harmful Matter Program and all applicable tariff and other legal requirements are satisfied.
15. Pursuant to the Stipulation and Order filed in this action on August 20, 1991, the Court's January 30, 1991 "Memorandum of Decision Re State Action" ( Westpac Audiotext, Inc. v. Wilks, 756 F. Supp. 1267 (N.D. Cal. 1991)) was and is vacated and shall have no collateral estoppel or res judicata effect.
16. Each party shall bear its or his own legal fees and costs with respect to this action.
DATED: June 24, 1992
Fern M. Smith
United States District Judge
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