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EDWARDS.TXT
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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 me