7. Commission Analysis

For a business relying on telephones, uninterrupted telephone service is an interest in "property" constitutionally entitled to protection against "taking" without due process of law. (Goldin, supra at 662; see also Board of Regents v. Roth (1972) 408 U.S. 564.) Before disconnection of telephone service can occur, in the context of the case now before us, there must be probable cause to believe that the telephone facilities are being or are about to be used to commit illegal acts, and it must be shown that the character of the acts is such that, absent summary action, significant dangers to public health, safety, and welfare will result. (Goldin, supra at 663-64.)

Such a showing of probable cause must be made before a magistrate - in this case, the Superior Court for the County of Los Angeles - and is reasonably comparable to the showing that must be made in order to obtain a search warrant. (Sokol v. Pub. Util. Comm. (1966) 65 Cal.2d 247, 256.) Based on the affidavit and exhibits that have been entered into evidence here (Exhibits 1, 4 and 5), Judge Injejikian concluded that there was probable cause to believe that complainant's business telephones were being used to violate or assist in violating the law, and that, absent summary action, such violation could cause significant danger to public health, safety, and welfare. (Exhibit 1.)

The Commission is empowered to rule on the adequacy of the showing of probable cause, and to determine whether interim relief is warranted pending the resolution of the civil court charges brought against the subscriber. As the California Supreme Court has stated:

"In a civil administrative proceeding of this nature, where the liberty of the subscriber is not at stake, it is sufficient for purposes of the interim protection involved that the Commission limit itself to the face of the affidavits and an assessment of their adequacy to support the magistrate's finding....Even in cases when it appears to the Commission that the finding is adequately supported by the affidavits presented to the magistrate, it may wish to consider the strength and character of the showing made as a factor to be weighed, along with pressing need or imminent economic damage, in its determination whether or not interim relief should be afforded to the subscriber." (Goldin, supra at 668; footnotes omitted.)

The evidence presented here recounts two instances of services being provided by Western Referral, doing business as VIP Escorts. In both instances, the entertainers readily and immediately sought "tips" of $300, in addition to their $200 or $210 base fee, and engaged in activities inconsistent with platonic nude modeling or entertainment, with such activities resulting in their arrests.

The police officers involved in this investigation provided credible testimony at hearing of the facts that form the basis for the arrests, and were cross-examined by complainant's counsel. The officers all have substantial experience in prostitution investigations to support their opinions of the nature of VIP Escorts' business.

More troublesome is complainant's showing that AT&T failed to immediately notify complainant in writing of the disconnection, as required by Rule 22. However, the evidence also shows that complainant and its attorney, within three days of the disconnection, were fully apprised of the action taken and the Rule 22 remedies available to them. Based on this, we find that AT&T's error does not rise to a level requiring us to order the telephone service restored.

In summary, based on the testimony and the exhibits, we find that the totality of the evidence would lead a reasonably prudent person to conclude that violations of laws related to prostitution have been shown, and that such violations posed a significant danger to public health, safety, or welfare. We find that these violations were made possible in large part by the use of the disconnected telephone number, since prospective customers used this number to contact Western Referral, which in turn enabled the solicitation of illegal services alleged in the affidavits. Therefore, we find that the law enforcement agency has met its burden of showing that the disconnection order was justified, and that the telephone service in question was being used directly or indirectly to violate or to assist in violating the law. We also find that the process followed by the officers complies with the Goldin decision such that complainant's legal challenges are unfounded. Finally, we find that complainant's own failure to avail itself of the Police Department's process for obtaining police reports caused the delay in receiving the police reports. Thus, complainant's allegation of discovery violations is similarly unfounded.

We turn then to the second showing that Rule 22 imposes on the law enforcement agency, namely that service should not be restored. Here, complainant testified that the two incidents with the undercover Los Angeles Police Department officers were isolated incidents, and that his receptionists carefully inform all clients that the entertainers perform only nude modeling or entertainment. Complainant presented no evidence, however, that the independent-contractor entertainers systematically refuse to perform acts that could constitute violations of the penal code relating to prostitution.

The police officers' testimony shows that on both of the two occasions when undercover officers sought services from Western Referral's entertainers, both entertainers readily agreed to, in one case, acts constituting prostitution and, in the other case, acts which would make the client "very happy." In neither instance did the entertainer refuse to engage in such acts due to any legal prohibition. The only impediment to completing the acts necessary for a prostitution charge in the second instance was the entertainer's skepticism regarding the legitimacy of the client, not any aversion to prostitution. Thus, during both contacts with Western Referral's entertainers, the police officers observed conduct inconsistent with Western Referral's asserted disavowal of prostitution.

We also note that both entertainers sought an identical amount, a $300 "tip," for, in the first instance, acts of prostitution, and, in the second instance, acts that would make the client "very happy." The identical pricing of these extra services suggests that these two particular offerings were not isolated instances of misconduct.

We, therefore, further find that good cause has been shown to deny any interim restoration of telephone service pending. Accordingly, the request for reinstatement of the disconnected telephone service is denied, and this complaint is dismissed.

The scope of this proceeding is set forth in Tariff Rule 22. Our order today confirms that ALJ Bushey is the presiding officer.