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WESTPAC AUDIOTEXT, INC. v. WILK

June 24, 1992

WESTPAC AUDIOTEXT, INC., et al., Plaintiffs,
v.
G. MITCHELL WILK, et al., Defendants. AND RELATED COUNTERCLAIM AND THIRD-PARTY COMPLAINT AND RELATED CASES



The opinion of the court was delivered by: FERN M. SMITH

 WHEREAS, the parties to these related actions have stipulated to the entry of judgment herein, and good cause appearing therefore,

 JUDGMENT IS HEREBY ENTERED, as follows:

 1. Pacific Bell, at its discretion, may identify on the 976, 900 or any other Pacific Bell prefix telephone information programs constituting indecent communications within the meaning of the Helms Amendment to the Communications Act of 1934, 47 U.S.C. § 223(b) et seq., and applicable F.C.C. regulations ("Indecent Programs"), and/or telephone information programs constituting harmful matter within the meaning of section 2884.2 of the California Public Utilities Code and section 313(a) of the California Penal Code ("Harmful Matter Programs") and assign such programs to the 900-303 prefix, or any other prefix that may be designated for Indecent and/or Harmful Matter Programs.

 2. Neither Pacific Bell nor GTE California Incorporated ("GTEC") has any obligation to provide billing or collection services for (i) information providers furnishing Indecent and/or Harmful Matter Programs, (ii) the entire 900-303 prefix and all programs thereon, and/or (iii) any other prefix that may be designated for Indecent and/or Harmful Matter Programs.

 3. The termination of billing and collection services for information providers furnishing Indecent and/or Harmful Matter Programs by Pacific Bell and GTEC was and is lawful under federal law and under the Stipulation and Order filed in this action on August 20, 1991.

 4. The following procedure shall govern the migration of Indecent and/or Harmful Matter Programs:

 A. Upon identifying an Indecent and/or Harmful Matter Program, Pacific Bell shall notify the information provider by certified or registered mail, by any overnight mail, or delivery service, or by personal service, that its program has been determined to constitute an Indecent and/or Harmful Matter Program (the "Written Notice"). The Written Notice shall advise the information provider of the requirements and procedures set forth in this Paragraph 4.

 B. Within 30 days from receipt of the Written Notice, the information provider shall modify the content of its program so that it no longer constitutes an Indecent and/or Harmful Matter Program, agree to disconnect the program, or agree to migrate its program to the 900-303 prefix (or any other prefix that may be designated for Indecent and/or Harmful Matter Programs).

 C. If within thirty days following receipt of the Written Notice the information provider (i) fails to respond to the Written Notice, (ii) does not make the necessary arrangements to migrate the program to the 900-303 prefix, (iii) does not modify its program as provided in Paragraph 4(E), below, so that it no longer constitutes an Indecent and/or Harmful Matter Program, or (iv) does not notify Pacific Bell as required in Paragraphs 4(D), 4(E)(iii), 4(E)(v) or 4(F), below, that it disagrees with Pacific Bell's determination that its program (or any modification thereof) constitutes an Indecent and/or Harmful Matter Program, Pacific Bell may disconnect the program and terminate service.

 D. If the information provider disagrees with Pacific Bell's determination that its program constitutes an Indecent and/or Harmful Matter Program and does not elect to modify, disconnect or migrate the program, the information provider shall so notify Pacific Bell within 10 days from receipt of the Written Notice. The dispute shall be resolved according to the procedures set forth in Paragraph 4(G), below.

 E. If the information provider elects to modify the contents of its program, the following procedure shall be followed:

 (i) Within ten days from receipt of the Written Notice, the information provider shall notify Pacific Bell of its election to modify the content of its program and provide Pacific Bell with a transcript of the new, modified program (the "First Modified Program").

 (ii) Pacific Bell shall have five business days from the information provider's notice within which to review the First Modified Program and notify the information provider by telephone at its contact number on file with Pacific Bell (or by facsimile, if a facsimile number has been provided to Pacific Bell) if Pacific Bell determines that the First Modified Program constitutes an Indecent and/or Harmful Matter Program (the "First Telephonic Notice"). If so notified by Pacific Bell, the information provider shall have five business days ...


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