Marion Edwards, Plaintiff-Appellant, v. State Farm Insurance

Company and "John Doe," Defendants-Appellees


Nos. 86-3686, 86-3840


UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT


833 F.2d 535; 1987 U.S. App.; 64 Rad. Reg. 2d (P
 & F) 174

December 7, 1987 


PRIOR HISTORY:   


   Appeals from the United States District Court for the Middle District of
 Louisiana.


COUNSEL: Lewis O. Unglesby for appellant.


   David M. Vaughn, Patricia A. McKay, William E. Willard for appellee State
 Farm.


Richard S. Thomas for appellee John Doe.


OPINIONBY: GARWOOD


OPINION: Before RANDALL, GARWOOD, and DAVIS, Circuit Judges.


   GARWOOD, Circuit Judge:


   This is an appeal from the district court's dismissal of plaintiff-appellant 
 Marion Edwards' Federal Communications Act and state law invasion of privacy
 claims for damages against defendants-appellees John Doe and Doe's liability
 insurer, State Farm Insurance Company (collectively Doe). The district court
 granted Doe's motion for summary judgment, dismissing Edwards' suit with
 prejudice. We affirm.


   Facts and Proceedings Below


   On an unspecified day in August 1985, Marion Edwards spoke from a mobile
 telephone, n1 in his automobile to his attorney, John R. Martzell, who was using
 a regular, line telephone in his law office in New Orleans. John Doe overheard
 the conversation on his Bearcat 350 Radio Receiver Scanner, which he had with
 him in his Baton Rouge business office. The Bearcat radio has an automatic
 scanning feature that monitors a number of radio frequencies or
 channels, including ones transmitting police and air
traffic control broadcasts,
 in addition to frequencies assigned for cellular phone system communications,
 such as Edwards' mobile telephone. Along with similar models made by
 competitors, the Bearcat radio is commercially available to the general public
 at most radio and electronics stores.


   n1 Mobile telephone services available for use in cars and other moving
 vehicles use both radio and wire (line) transmission. The technology, approved
 in 1981 by the Federal Communications Commission, utitlizes a cellular
 radiotelephone system (cellular phone). Cellular phone systems operate by
 dividing large service areas into honeycomb-shaped segments (cells), each of
 which can receive and transmit messages within its parameters. When a caller
 dials a number on a cellular phone, a transceiver sen
ds signals over the air on 
 a radio frequency to a cell site. From there the signal travels over phone lines
 to a computerized mobile telephone switching office. The switching office
 automatically switches the conversation from one base station and frequency to
 another as the mobile telephone moves from cell to cell. See Electronic
 Communications Privacy Act of 1986. S.Rep. No. 99-541, 99th Cong., 2d Sess.,
 (1986), reprinted in 1986 U.S.Code Cong. & Ad.News 3555, 3563.


While Doe was using his radio's scanner, the radio picked up the conversation
 between Edwards and Martzell. After listening for a few moments, Doe came to
 believe that Edwards and his attorney were discussing criminal activity. He then
 recorded the remainder of the conversation on his portable tape recorder and
 eventually delivered the tape to Stanford Bardwell, Jr., the United States
 Attorney for the Middle District of Louisiana. Bardwell notified John Volz, the 
 United States Attorney for the Easter
n District of Louisiana, of the existence
 of the tape. Volz, who was prosecuting Edwards and others in a criminal trial
 then pending in a federal district court in the Eastern District of Louisiana,
 promptly disclosed the existence of the tape to the court and to Martzell.
 Martzell then notified Edwards. Neither the tape nor the conversation was used
 in the pending criminal trial.


   On the basis of these events, Edwards filed suit in federal district court
 pursuant to1 18 U.S.C. @ 2520, which authorizes a civil action by any person
 whose wire or oral communication was "intercepted, disclosed, or used" in
 violation of chapter 119 of Title 18 of the United States code. See 18 U.S.C. @@
 2510-2520 (the Wiretap Act), n2. He named Doe and Bardwell as defendants.
 Subsequently, on February 6, 1986, Edwards initiated a separate action in state 
 court against Doe and Doe's insurer, Stat
e Farm Insurance Company, alleging that
 Doe's actions constituted an invasion of privacy in violation of article 1,
 section 5 of the Louisiana Constitution and La. Civil Code art. 2315. Edwards
 amended the state court petition to add a claim that Doe's interception and
 divulgence of the conversation also violated section 605 of the Federal
 Communications Act. See Communications Act of 1934, Pub.L. No. 73-416, @ 605, 48
 Stat. 1064, 1103-04 (1934) (currently codified as amended at 47 U.S.C. @
 605(a)).
Doe removed the suit to federal court, alleging federal question
 jurisdiction under 28 U.S.C. @ 1331, and it was consolidated by order of the
 court dated April 3, 1986, with the already pending Wiretap Act suit.


   n2 On October 21, 1986, chapter 119 of Title 18 was substantially revised by 
 the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 
 1848 (codified as amended at 18 U.S.C.A. @@ 2510-2521 (West Supp.1987)). As
 amended, the Wiretap Act continues to authorize a civil action for violation of 
 its provisions, but it now applies to "electronic communications" as well as
 wire and oral communications. See 18 U.S.C.A. @@ 2511, 2520 (West Supp.1987).
 


   On April 7, 1986, however, Edwards filed a motion to remand the second action
 to state court. The district court therefore severed the actions and did not
 consider the issues in the removed action concurrently with the Wiretap Act
 claim. The district court, on April 10, 1986, entered a summary judgment
 dismissing with prejudice Edwards' claim under the Wiretap Act. Edwards v.
 Bardwell, 632 F.Supp. 584 (M.D. La.1986). On appeal, a panel of this Court
 affirmed. 808 F.2d 54 (5th Cir.1986) (per curiam,
 unpublished opinion).


   The district court subsequently denied Edward's motion to remand the present 
 Communications Act and state law tort action and, on August 29, 1986, granted in
 part Doe's motion for summary judgment, dismissing Edwards' claim under section 
 605 of the Communications Act. The district court also eventually granted
 summary judgment in favor of Doe on Edwards' Louisiana law tort claim, thereby
 dismissing the entirety of Edwards' action with prejudice. Edwards has timely
 brought the present appeal.


   Discussion


I. Communications Act Claim


   A. Background


   Subsection (a) of section 605 of the Communications Act sets forth the
 activities proscribed by the statute:
  "605. Unauthorized publication or use of communications.


"(a) Practices prohibited


"Except as authorized by chapter 119, Title 18, (1) no person receiving,
 assisting in receiving, transmitting, or assisting in transmitting, any
 interstate or foreign communication by wire or radio shall divulge or publish
 the existence, contents, substance, purport, effect, or meaning thereof, except 
 through authorized channels of transmission or reception. . . . (2) No person
 not being authorized by the sender shall intercept any radio communication and
 divulge or publish the existence, contents, s
ubstance, purport, effect, or
 meaning of such intercepted communication to any person. (3) No person not being
 entitled thereto shall receive or assist in receiving any interstate or foreign 
 communication by radio and use such communication (or any information therein
 contained) for his own benefit or for the benefit of another not entitled
 thereto. (4) No person having received any intercepted radio communication or
 having become acquainted with . . . such communication (or any part thereof)
 knowin
g that such communication was intercepted, shall divulge or publish the
 existence, contents, substance, purport, effect, or meaning of such
 communication (or any part thereof) or use such communication (or any
 information therein contained) for his own benefit or for the benefit of another
 not entitled thereto. This section shall not apply to the receiving, divulging, 
 publishing, or utilizing the contents of any radio communication which is
 transmitted by any station for the use of the general public
, which relates to
 ships, aircraft, vehicles, or persons in distress, or which is transmitted by an
 amateur radio station operator. . . ."


Except for one amendment not relevant for purposes of this appeal, n3 this
 version of section 605(a) was enacted by Congress in 1968 as part of Title III
 of the Omnibus Crime Control and Safe Streets Act, @ 803, Pub.L. No. 90-351, 82 
 Stat. 197, 223-25 (1986) (Crime Control Act). Title III of the Crime Control Act
 also amended Title 18 of the United States Code to add new chapter 119, entitled
 "Wire Interception and Oral Communications" (Wiretap Act). Id. @ 802, 82 Stat.
 at 212-23 (codified as amended
 at 18 U.S.C.A. @@ 2510-2521 (West Supp. 1987)).


   n3 The last sentence of section 605(a) was amended in 1982 to remove amateur 
 and "CB" radio transmissions entirely from the protections of section 605. See
 Communications Amendments Act of 1982, Pub.L. No. 97-259, 126, 96 Stat. 1087,
 1099 (1982); see also Brown & Helland, Section 605 of the Communications Act:
 Teaching a Salty Old Sea Dog New Tricks, 34 Cath.U.L.Rev. 635, 646-48 (1985).
 The Communications Act was further amended in 1984 to regulate the interception 
 of satellite cable programming,
 but these amendments left the language of
 subsection (a) of section 605 untouched. See Cable Communications Policy Act of 
 1984, Pub.L. No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C.A. @@
 521-611 (West Supp. 1987)). The 1984 amendments also for the first time
 expressly imposed civil and criminal penalties for violations of the provisions 
 of section 605. Id. (codified at 47 U.S.C.A. @ 605(d)).  


   Prior to enactment of the Wiretap Act in 1968, the interception of radio and 
 wire communications was governed by section 605 of the Communications Act, n4.
 The passage of the Wiretap Act, however, transferred "regulation of the
 interception of wire or oral communications" from the Communications Act to the 
 new Wiretap Act. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968
 U.S.Code Cong. & Ad. News 2112, 2196. As enacted, the Wiretap Act set forth a
 comprehensive scheme outlining the condit
ions under which "wire" or "oral"
 communications could be intercepted, disclosed, or used without running afoul of
 the statute's criminal or civil penalties. See 18 U.S.C. @ 2511.


   n4 Regulation of wire and radio communications was first consolidated into
 the jurisdiction of the new Federal Communications Commission with the enactment
 of the Communications Act of 1934. See Pub.L. No. 73-416, 48 Stat. 1064 (1934)
 (codified at 47 U.S.C. @@ 151-609). From that date until enactment of the
 Wiretap Act in 1968, section 605 of the Communications Act governed interception
 of both radio and wire communications by communications personnel, law
 enforcement officers, and private persons.
 See generally Brown & Helland, supra,
 note 3 at 644-46. Before 1934, the provision that later became section 605 was
 part of a statute regulating only radio communications. See Radio Act of 1912,
 Pub.L. No. 62-264, @ 4, 37 Stat. 302, 307 (1912), amended by Radio Act of 1927, 
 Pub.L. No. 69-632, @@ 1-41, 44 Stat. 1162 (1927); see also Brown & Helland,
 supra, note 3 at 640-44.  


   In enacting the Wiretap Act and concurrently amending the Communications Act,
 Congress did not state whether voice communications transmitted by radio waves
 were to be governed in the future by the Communications Act, the Wiretap Act, or
 both. Edwards' conversation, which was transmitted in part by radio waves, has
 already been determined to be an oral communication governed but unprotected by 
 the Wiretap Act. Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986), aff'd,
 808 F.2d 54 (5th Cir.198
6). Thus, his present suit presents the issue of whether
 a communication which the Wiretap Act covers but does not protect may
 nevertheless be protected by the Communications Act. No panel of this Circuit
 has yet had to decide this question; however, the First Circuit has reached it. 
 See United States v. Rose, 669 F.2d 23 (1st Cir.), cert. denied sub nom. United 
 States v. Hill, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982); cf. United
 States v. Hall, 488 F.2d 193 (9th Cir.1973), n5.


   n5 Hall involved police interception and use in a criminal prosecution of
 conversations among various defendants from a mobile telephone in a car to a
 regular, line telephone and from one mobile car telephone to another mobile car 
 telephone. The Ninth Circuit held that for purposes of the Wiretap Act, because 
 communications between a mobile car telephone and a regular, line telephone were
 transmitted in part by wire, they were wire communications, and that
 conversations between two car telephones
, transmitted entirely by radio waves,
 were oral communications. Hall, 488 F.2d at 196-97. The court further held
 that since law enforcement officers had intercepted the conversations, and since
 the legislative history to the 1968 amendments to section 605 excluded policemen
 from the purview of that section, section 605 did not preclude the
 interceptions. Id. at 195-96. Hall thus suggested that communications could
 simultaneously be "wire or oral" for Wiretap Act purposes, and "radio" for
 Communicati
ons Act purposes.  


   In Rose, the First Circuit concluded that while the Communications Act still 
 applied to oral communications transmitted by radio waves, after the enactment
 of the Wiretap Act such communications were protected by section 605 only if the
 speaker possessed a subjective expectation of privacy that was also objectively 
 reasonable. 669 F.2d at 26-27. Although unlike the Wiretap Act, see 18 U.S.C. @ 
 2510(2), section 605 does not explicitly require any expectation of privacy, the
 First Circuit determin
ed that by prefacing section 605's prohibitions with the
 words "[e]xcept as authorized by [the Wiretap Act]," Congress in 1968
 incorporated this Wiretap Act requirement into the Communications Act. Id. at
 26. Thus, according to the Rose Court, in simultaneously amending section 605
 and passing the Wiretap Act, Congress "significantly diminished in scope [the
 protective shield of section 605] by incorporating the requirements of
 subjective and reasonable expectations of privacy" set forth in the Wireta
p Act.
 Id. at 27.


   B. Application to Facts


   The thrust of Edwards' argument to the district court was that Doe violated
 the provision in section 605(a) that prohibits any "person not being
 authorized by the sender" from "intercept[ing] any radio communication and
 divulg[ing]" its existence or contents "to any person." The district court
 disagreed. Adopting the view expressed in Rose, the district court determined
 that section 605 prohibits the interception and divulgence of an "oral" radio
 communication only if it meets the expectation of pr
ivacy requirements imposed
 by the Wiretap Act for oral communications. The district court pointed out that 
 in Edwards' earlier, Wiretap Act suit, it had decided that the conversation
 between Edwards and Martzell was an oral communication, and not a wire
 communication; that Edwards had no reasonable expectation of privacy regarding
 the conversation; and that Doe's interception therefore did not violate the
 Wiretap Act. Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986), aff'd, 808
 F.2d 54 (5th C
ir. 1986), n6. The district court concluded that it was bound by
 its previous holding in Bardwell that the Edwards conversation was an oral
 communication to which no reasonable expectation of privacy attached under the
 Wiretap Act, and that since the Wiretap Act's expectation of privacy requirement
 had been incorporated into section 605, the conversation was not
 protected by section 605 either.


   n6 In so deciding, the district court and the panel of this Court that
 affirmed the district court on appeal rejected the Hall court's holding that a
 communication transmitted in part by radio waves and in part by wire was a wire 
 communication for Wiretap Act purposes. Accord Williamette Subscription
 Television v. Cawood, 580 F.Supp. 1164 (D.Or. 1984); State v. Delaurier, 488
 A.2d 688, 693 (R.I.1985); State v. Howard, 235 Kan. 236, 679 P.2d 197 (1984);
 see also, Dorsey v. State, 402 So.2d 1178 (Fl
a.1981) (similarly interpreting
 Florida statute with language identical to that in the Wiretap Act).


   On appeal, Edwards challenges the district court's conclusion. Edwards argues
 that the First Circuit's analysis in Rose, and the district court's here, is
 backwards. In Edwards' opinion, we should begin our analysis by determining
 whether the challenged activity was proscribed by section 605, without
 considering whether the activity is permitted under the Wiretap Act. Since
 "interception and divulgement" of radio communications is an activity prohibited
 under the second sentence of section 605, Edw
ards argues, it is
 reasonable for a speaker to expect that his privacy will be maintained, even if 
 he knows his conversation can easily be overheard.


   Although it has surface appeal, this argument begs the question whether Doe's
 interception and disclosure was in fact unlawful under section 605. We think it 
 was not. Another panel of this Court has already held that for purposes of the
 Wiretap Act, Edwards' conversation with Martzell was an oral communication, and 
 that it was unaccompanied by any justifiable expectation of privacy. Bardwell.
 The facts in Bardwell were precisely the same as those here; the two cases
 involve the very same conversa
tion, just different statutes. The Bardwell
 opinion, therefore, has, at very least, stare decisis effect upon our resolution
 of this case. Consequently, the sole question for us is whether to follow Rose, 
 which so far as we are aware is the only federal appellate opinion directly
 addressing the issue, in reading the "except as authorized by [the Wiretap]"
 clause in section 605 to incorporate the Wiretap Act's limiting definition of
 oral communications.


   We elect to do so. While the phrase could be interpreted to preface 
 only the first sentence of section 605, which regulates the conduct of
 communications personnel, n7 we think the better interpretation limits each of
 section 605's prohibitions to activities not authorized by the Wiretap Act.
 Under the former interpretation, activity permissible under the Wiretap Act
 could be prohibited under section 605 of the Communications Act. Since Congress 
 added the introductory phrase to section 605 at the
 same time that it enacted
 the Wiretap Act, we believe Congress likely intended to make the statutes
 consistent. The latter interpretation has this effect by ensuring that the
 interception and divulgence of a voice communication transmitted by radio waves 
 is not prohibited by section 605 nor the relevant legislative history makes it
 entirely clear whether Congress intended this result, n8 we conclude that
 section 605 makes unlawful the interception and divulgement of an "oral" radio
 communication on
ly if the speaker held a subjective expectation of privacy that 
 was justifiable under the circumstances, n9. Since Edwards has been determined
 not to have possessed such an expectation with respect to the conversation at
 issue, we hold that Doe did not violate section 605 by listening to,
 and disclosing to the federal authorities the contents of, that conversation.


   n7 One commentator has argued in favor of such an interpretation. See Fein,
 Regulating the Interception and Disclosure of Wire, Radio, and Oral
 Communications: A Case Study of Federal Statutory Antiquation, 22 Harv.J. on
 Legis. 47, 60 & 88-90 (1985). Even this commentator, however, suggested as an
 alternative interpretation the one adopted by the First Circuit in Rose. Id. at 
 62-63 Other authors have at least implicitly read the clause to modify each of
 the activities proscribed by section 605. Se
e, e.g., Note, The Admissibility of 
 Evidence Obtained by Eavesdropping on  Cordless Telephone  Conversations, 86
 Colum.L.Rev. 323, 332 n. 73 (1986); Note, Title III Protection for Wireless
 Telephones, 1985 Univ.Ill.L.Rev. 143, 150 & n. 52.


   n8 While we find the legislative history for the 1968 amendments to section
 605 inconclusive about Congress' intent on this issue, we think it is at least
 consistent with the district court's interpretation. The Senate Report
 accompanying the legislation stated that the amendments were "not intended
 merely to be a reenactment of section 605," but rather "as a substitute." S.Rep.
 No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 2112,
 2196.


   We think the 1986 amendments to the Wiretap Act also indirectly support our
 conclusion that Congress, even in 1968, intended that Act to apply to voice
 communications transmitted by radio waves as well as to ones transmitted by
 sound waves and by wire. As amended in 1986, the Wiretap Act expressly governs
 voice communications transmitted by radio waves; it defines such communications,
 except the radio portion of a  cordless telephone  (in contrast to to a
  cellular telephone)  conversation, as "ele
ctronic communications" and provides 
 for civil remedies and criminal sanctions for interceptions of such
 communications. See 18 U.S.C.A. @@ 2510-2511, 2520 (West Supp.1987).  


   n9 Since the 1986 amendments to the Wiretap Act appear to prohibit
 interceptions of communications transmitted between a  cellular telephone  in an
 automobile and a line telephone, Edwards' conversation might be protected under 
 the current version of the Wiretap Act. Our prior decision in Bardwell assumed, 
 however, that because the amendments do not apply retroactively, they did not
 govern Edwards' claim under the Wiretap Act. For purposes of the present appeal,
 we likewise conclude that the 1986
 amendments do not apply. We note that
 substantive changes in statutes, like the 1986 changes to the Wiretap Act, are
 generally not applicable to pending cases. Griffon v. United States Dep't of
 Health & Human Services, 802 F.2d 146 (5th Cir.1986). Especially where, as here,
 the question is whether Edwards had a justifiable expectation of privacy with
 regard to his August 1985 conversation with Martzell, we do not think the 1986
 amendments could retrospectively create such an expectation.


II. State-law Right to Privacy Claim


   Edwards also challenges the district court's dismissal, on summary judgment, 
 of his Louisiana law tort claim for invasion of privacy. The right to privacy
 is expressly recognized in the Louisiana Constitution, which provides
 that "[e]very person shall be secure in his person . . . [and] communications . 
 . . against unreasonable . . . invasions of privacy." La. Const. art. 1, @ 5.
 One of the ways was a plaintiff may recover under Louisiana law for invasion of 
 this right to privacy is by proving t
hat the defendant unreasonably disclosed
 embarrassing private facts about him. Jaubert v. Crowley Post-Signal, Inc., 375 
 So.2d 1386, 1388 (La.1979). Recovery is limited, however, to private facts; as
 the Louisiana Supreme Court has stated, "[N]o right to privacy attaches to
 material in the public view." Id. at 1391; see also Restatement (Second) of
 Torts 652D Comment (b), at 386 (1977).


   We customarily give substantial deference to the district court's
 determination of the law of the state in which it sits, see Jackson v.
 Johns-Manville Sales Corp., 781 F.2d 394, 398 (5th Cir.1986), and we perceive no
 reason to depart from that practice here. Edwards' claim for invasion of privacy
 under Louisiana tort law is founded upon the same events that provide the basis 
 for his claims under section 605 of the Communications Act and under the Wiretap Act. Since Edwards' conversation from the t
elephone in his car is
 not protected under either of these federal statutes, we sustain the district
 court's determination that Edwards has no right to recover under Louisiana tort 
 law either. In our Bardwell opinion, we stated, "[T]he district court found that
 there was no objectively reasonable expectation of privacy in Edwards' use of
 his car phone. We agree." We believe that a communication to which no
 justifiable expectation of privacy attaches is "material in the public view"
 unprotected by th
e Louisiana law right to privacy. Consequently, we also affirm 
 the district court's summary judgment against Edwards on his state law invasion 
 of privacy claim.


   Conclusion


   Accordingly, we affirm the district court's dismissal of Edwards' suit.



AFFIRMED.