Sandra BODDIE, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANIES, INC.; Geraldo Rivera; Charles C. Thompson; and Maravilla Production Company, Inc., Defendants-Appellees.
No. 82-3420.
United States Court of Appeals, Sixth Circuit.
April 6, 1984
Rehearing and Rehearing En Banc Denied June 1, 1984.
731 F.2d 333
Before KEITH and WELLFORD, Circuit Judges, and BROWN, Senior Circuit Judge.
Argued Oct. 12, 1983.
The third dispute involves reassignments of job duties at the Hartsville Nuclear Plant and the elimination of two bargaining unit positions. Again, TVA asserts that this dispute involves TVA‘s right to decide what work is managerial and what work should be performed within the bargaining unit. The Panel describes the issue as TVA‘s transfer of duties to management, asserting that the classification of work and determination of appropriate pay schedules are subjects suited to the grievance procedure.
In the fourth dispute the Panel asserts that TVA used contract employees to do work ordinarily done by bargaining unit positions. TVA, on the other hand, argues that it is authorized by statute “to enter into such contracts ... upon such terms and conditions and in such matter as it may deem necessary,”
Our review of these four labor disputes does not allow us to say with positive assurance that the parties agreed to exclude such disputes from arbitration. Whether each of these disputes involves the unfair application of a policy, as the Panel maintains, or an attempt to change an established policy or procedure, as TVA maintains, is a question for the arbitrator to determine based on his interpretation of the collective bargaining agreement. In short, the threshold question for the arbitrator is the arbitrability of each of the disputes. Accordingly, we find that we should, and hereby do affirm, that part of the district court order ordering that these four disputes, including the question of their arbitrability, be submitted to arbitration.
VI.
The circumstances are different, however, with regard to the Panel‘s $1 million claim for damages which the district court also ordered submitted to arbitration. That order was clearly error.
The Panel‘s cause of action with respect to the $1 million claim is based upon an alleged “plan, program and campaign to weaken and emasculate [the] Panel ... and to breach the Articles of Agreement.” The Panel did not demand arbitration of this claim. In addition, nothing in the Articles permits arbitration of such a claim, nor has the Panel argued on appeal that such a claim should be submitted to arbitration. We find that the parties have clearly not agreed to submit to arbitration claims for damages arising out of alleged breaches of the collective bargaining agreement. Accordingly, that part of the district court‘s order requiring that the damage claim be submitted to arbitration must be, and hereby is, reversed.
The judgment of the district court is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.
Richard Sternberg (argued), Akron, Ohio, for plaintiff-appellant.
BAILEY BROWN, Senior Circuit Judge.
This case arises from an investigative report entitled “Injustice For All“, produced and broadcast by the defendant, the American Broadcasting Companies, Inc. The report, presented on ABC‘s “20/20” television program, inquired into allegations that Judge James Barbuto of Akron, Ohio had regularly granted leniency to criminal defendants in exchange for sex. The report included a brief, secretly recorded exchange with the plaintiff, Sandra Boddie, an alleged participant in the scandal. The plaintiff brought suit against ABC; Charles C. Thompson, the executive producer and chief investigative reporter for the report; and Geraldo Rivera, the senior producer and correspondent for the report. The plaintiff sought damages for defamation, false light, invasion of privacy and violation of title III of the Omnibus Crime Control and Safe Streets Act of 1968,
I.
As part of an investigation into the allegations surrounding Judge Barbuto, defendants Rivera, Thompson and other investigators conducted an interview with plaintiff Boddie. Boddie consented to be interviewed by the journalists in her home, but when questioned, she refused to appear on camera. Unbeknown to Boddie, the journalists recorded the interview by using a hidden videotape camera and concealed microphones. The sound picked up by the microphones was transmitted to a receiver in a nearby van and there recorded. A segment from this interview, including the videotape and audio recording, was shown in the televised report, “Injustice For All.” It is undisputed that Boddie knew that the journalists were from ABC‘s “20/20” program but that she was not informed that the interview was being recorded for broadcast.
In the first count of her complaint, Boddie alleged that the defendants’ broadcast placed her in a false light and invaded her privacy. In the second count, Boddie alleged that the defendants’ report defamed her by making false statements about her personal life and her participation in the alleged leniency scheme. Following a seven-week trial the jury returned a verdict in favor of the defendants on the claims in the first two counts.
Boddie‘s third count which was, as stated, dismissed sua sponte before trial, charged that the defendants’ surreptitious recording of the interview violated the Federal Wiretap Statute. In particular, Boddie claimed that the recording of the interview violated
(1) Except as otherwise specifically provided in this chapter any person who—
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
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(c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral
communication in violation of this subsection: shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Boddie also charged that the defendants’ activities were contrary to regulations of the Federal Communications Commission that prohibit the use of electronic devices for eavesdropping without the consent of the parties engaged in the conversation, 47 C.F.R. §§ 2.701, 15.4, 15.11, 15.154 (1982). Violation of these regulations, Boddie claimed, was contrary to
The district judge dismissed the third count on its own motion. Stating that the “area of law is one with which the Court is eminently familiar,” the judge held that the plaintiff had failed to state a cause of action. The court ruled that the alleged violation of
II.
The district court was clearly incorrect in ruling that the Federal Wiretap Statute provides no private cause of action. In the third count of her complaint, Boddie cited
III.
The defendants maintain that the dismissal was, nevertheless, correct because they were privileged as parties to the conversation to record the exchange with Boddie. The defendants also maintain that there was no unlawful interception and that Boddie had no expectation of privacy as required by statute. Boddie contends that the defendants’ recording was an unlawful interception of a communication that she reasonably expected was not being intercepted. Boddie further contends that the existence of a privilege to record the interview turns on the defendants’ purpose. Determination of the defendants’ purpose, Boddie argues, is a question of fact reserved for the jury.
A. Privilege
The Federal Wiretap Statute sets forth the privilege for a consenting party to a conversation.
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has
given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.
The defendants, relying on this court‘s per curiam decision in Smith v. Cincinnati Post & Times-Star, 475 F.2d 740 (6th Cir.1973), maintain that they are entitled, as parties to the interview, to a complete privilege against the claim under the Wiretap Statute. In that case, Howard Wunker recorded a telephone conversation with Rufus Lee Smith in which Smith indicated that he could “fix” a divorce case. Wunker released the tape recording to the defendant newspaper which published the contents. On appeal, this court affirmed the grant of summary judgment to the newspaper. In an earlier decision in a separate action that was not appealed, Smith v. Wunker, 356 F.Supp. 44 (S.D.Ohio 1972) (discussed below), the district court held that Wunker‘s actions had not violated the Federal Wiretap Statute. In Cincinnati Post & Times-Star, this court ruled that because the recording was not obtained in violation of the statute, “the appellant cannot seek damages from the newspaper for publishing the conversation.” 475 F.2d at 741.
Defendants in the instant case contend that Cincinnati Post & Times-Star established a one-party consent privilege that is not limited by a party‘s purpose in recording the conversation as specified in
Defendants contend, despite the language of
The statute does not define “injurious act.” Senator Hart explained that
Because the district court in Smith v. Wunker failed to consider the full statutory language of
Defendants maintain that their purpose in recording the conversation was both lawful and proper and that the jury verdict in their favor on the tort claims precludes any further consideration of this issue. The statute, however, proscribes not only interceptions where the party acts with “criminal” or “tortious” purpose, but where the party acts with a “purpose of committing any other injurious act.” Boddie alleged in her third count that the defendant‘s purpose was “to cause the Plaintiff insult and injury.” The defendants contend that they intended no injury to Boddie and that they acted only in good faith to preserve evidence of Judge Barbuto‘s allegedly illegal activities. This dispute, we believe, raises questions of fact for the jury. We cannot, on the basis of the record before us, make this determination as a matter of law.4
B. Expectation of Privacy.
Defendants contend that the interview was not protected under the statute because Boddie had no expectation of privacy. The statute defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
IV.
The district court dismissed the plaintiff‘s claim under the FCC regulations prohibiting eavesdropping, ruling that primary jurisdiction for the enforcement of the regulations was vested in the Commission.6 On appeal, the plaintiff maintains that evidence of the defendants’ alleged violations of these regulations would establish the defendants’ improper purpose under the Wiretap Statute.
We agree with the defendants that the court acted properly in excluding from trial plaintiff‘s allegations that the defendants violated the FCC regulations. The Wiretap Statute requires the plaintiff to show that the defendants intended an illegal, tortious or injurious act other than the recording of the conversation. See Stamatiou v. United States Gypsum Co., 400 F.Supp. 431, 436 n. 3 (N.D.Ill.1975), aff‘d mem., 534 F.2d 330 (7th Cir.1976). Even if we assume that the defendants, by the mere interception, violated these regulations, the question remains under
The dismissal of plaintiff‘s third count is REVERSED, and this case is remanded for proceedings not inconsistent with this opinion.
WELLFORD, Circuit Judge, concurring:
I concur in Judge Brown‘s well written opinion, but would also add for the benefit of the trial court, upon remand, the following guidelines as to application of
(1) By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956, 959 (7th Cir.1982):
A desire to make an accurate record of a conversation to which you are a party is a lawful purpose under the statute even if you want to use the recording in evidence.
(2) Moore v. Telfon Communications Corp., 589 F.2d 959, 965-66 (9th Cir.1978) (footnotes omitted):
Congress did not define the meaning of “injurious act.” While we acknowledge that the term embraces acts not easily classified as either “criminal” or “tortious,” we cannot believe that Congress intended it to be read to embrace every act which disadvantages the other party to this communication. Such a reading would nullify the exemption created by
§ 2511(2)(a)(d) . Presumably there is some disadvantage in having any conversation intercepted in the absence of consent of all parties. Congress, we believe, intended to permit one party to record conversation with another when the recorder is acting “out of a legitimate desire to protect himself.”
(3) United States v. Phillips, 540 F.2d 319, 325 (8th Cir.), cert. denied, 429 U.S. 1000 (1976) (quoting 114 Cong.Rec. 14694 (May 28, 1978):
“The provision would not, however, prohibit any such activity [intercepting a wire or oral communication] when the party records information of criminal activity by the other party with the purpose of taking such information to the police as evidence.”