Watkins v. L.M. Berry & Co.

• Decision Date: 02 May 1983
• Docket Number: No. 82-7007,82-7007
• Parties: Carmie WATKINS, Plaintiff-Appellant, v. L.M. BERRY & COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 577

704 F.2d 577

Carmie WATKINS, Plaintiff-Appellant, v. L.M. BERRY & COMPANY, et al., Defendants-Appellees.

No. 82-7007.

United States Court of Appeals, Eleventh Circuit.

May 2, 1983.

Slade Watson, Tuscaloosa, Ala., for plaintiff-appellant.

John D. Clements, Thomas, Taliaferro, Forman, Burr & Murray, William F. Murray, Jr., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, FAY and SMITH ^*, Circuit Judges.

EDWARD S. SMITH, Circuit Judge:

In this case appellant Watkins sued her employer, L.M. Berry & Company, and others, alleging violation of the federal wiretapping statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520 (1976). ¹ The district court granted summary judgment on the merits against Watkins, and she now appeals. We reverse and remand for further proceedings.

I.

The facts have not been developed in detail, but their general outline is undisputed. Carmie Watkins was employed as a sales representative by L.M. Berry & Company (Berry Co.). Watkins' immediate supervisor was Martha Little, and Little's supervisor was Diane Wright. Berry Co. was under contract with South Central Bell to solicit Yellow Pages advertising from South Central Bell's present and prospective Yellow Pages advertisers. Much of this solicitation was done by telephone and Watkins was hired and trained to make those calls.

Berry Co. has an established policy, of which all employees are informed, of monitoring solicitation calls as part of its regular training program. The monitored calls are reviewed with employees to improve sales techniques. This monitoring is accomplished with a standard extension telephone, located in the supervisor's office, which shares lines with the telephones in the employees' offices. Employees are permitted to make personal calls on company telephones, and they are told that personal calls will not be monitored except to the extent necessary to determine whether a particular call is of a personal or business nature.

In April or May 1980, during her lunch hour, Watkins received a call in her office from a friend. At or near the beginning of the call (there are conflicting indications), the friend asked Watkins about an employment interview Watkins had had with another company (Lipton) the evening before. Watkins responded that the interview had gone well and expressed a strong interest in taking the Lipton job. Unbeknownst to Watkins, Little was monitoring the call from her office and heard the discussion of the interview.

After hearing the conversation (how much is unclear), Little told Wright about it. Later that afternoon Watkins was called into Wright's office and was told that the company did not want her to leave. Watkins responded by asking whether she was being fired. Upon discovering that her supervisors' questions were prompted by Little's interception of her call, Watkins became upset and tempers flared. The upshot was that Wright did fire Watkins the next day. However, Watkins complained to Wright's supervisor and was reinstated with apologies from Wright and Little. Within a week Watkins left Berry Co. to work for Lipton.

II.

In Watkins' suit, Berry Co., Little, Wright, and South Central Bell are named as defendants. Watkins based her claims on title III and the Communications Act of 1934, 47 U.S.C. Sec. 605 (1976). South Central Bell moved for summary judgment on the ground that it was not legally responsible for Little's actions, which motion the district court granted. The court also dismissed the cause of action based on the Communications Act for failure to state a claim upon which relief could be granted.

We agree that South Central Bell is not liable on a theory of respondeat superior. While there is no question that South Central Bell had considerable influence on the solicitation message, Watkins alleges nothing that would support the conclusion that South Central Bell had the kind of close control over Berry Co.'s internal operating procedures and employment practices that would support vicarious liability. We therefore affirm the granting of South Central Bell's motion for summary judgment.

The district court also held that the Communications Act does not provide the basis for a civil remedy. Watkins makes no real effort to contest this holding on appeal. To the extent that section 605 applies to this case, any private remedy it contains is superseded by the remedy provided by section 2520 of title III. Section 605 was extensively revised by title III itself, ² and there is no reason to believe that title III provided duplicative remedies. We therefore also affirm the dismissal of the Communications Act claims.

III.

Title III forbids the interception, without judicial authorization, of the contents of telephone calls. It provides:

Except as otherwise specifically provided in this chapter any person who--

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(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication * * *

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shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 2511(1)(b). Title III also provides a civil remedy and statutory damages:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person--

(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred.

18 U.S.C. Sec. 2520. Watkins' complaint is founded upon these sections.

It is not disputed that Little's conduct violates section 2511(1)(b) unless it comes within an exemption "specifically provided in" title III (18 U.S.C. Sec. 2511(1)). Appellees claim the applicability of two such exemptions. The first is the consent exemption set out in section 2511(2)(d):

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 one of the parties to the communication has given prior consent to such interception * * *.

Appellees argue that, by using Berry Co.'s telephones and knowing that monitoring was possible, Watkins consented to the monitoring. The second is the business extension exemption in section 2510(5)(a)(i):

"electronic, mechanical, or other device" [in Sec. 2511(1)(b) ] means any device or apparatus which can be used to intercept a wire or oral communication other than--

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; * * * [emphasis supplied].

"[E]quipment * * * furnished to the subscriber or user by a communications common carrier in the ordinary course of its business" means in this case simply a standard extension telephone. See Briggs v. American Air Filter Co., 630 F.2d 414, 417 n. 5 (5th Cir.1980). The issue is therefore whether the monitoring of this call was in the ordinary course of Berry Co.'s business. Briggs, 630 F.2d at 417. Appellees contend that it was and hence that the extension telephone was not a "device" within the statutory meaning (section 2511(1)(b)) of "interception."

Briggs v. American Air Filter Co., decided by the Fifth Circuit in 1980, provides the framework for interpreting these exemptions. The consent and business extension exemptions are analytically separate. Consent may be obtained for any interceptions, and the business or personal nature of the call is entirely irrelevant. Conversely, the business extension exemption operates without regard to consent. So long as the requisite business connection is demonstrated, the business extension exemption represents the "circumstances under which non-consensual interception" is not violative of section 2511(1)(b). Briggs, 630 F.2d at 419. Accordingly, in analyzing the present case we will first consider the scope of Watkins' consent to the monitoring of this call and then move to the question whether the interception was justified as being in the ordinary course of Berry Co.'s business, notwithstanding the absence of consent.

A.

Appellees argue that Watkins' acceptance of employment with Berry Co. with knowledge of the monitoring policy constituted her consent to the interception of this call. This is erroneous with respect to both Watkins' actual and implied consent.

It is clear, to start with, that Watkins did not actually consent to interception of this particular call. Furthermore, she did not consent to a policy of general monitoring. She consented to a policy of monitoring sales calls but not personal calls. This consent included the inadvertent interception of a personal call, but only for as long as necessary to determine the nature of the call. So, if Little's interception went beyond the point necessary to determine the nature of the call, it went beyond the scope of Watkins' actual consent.

Consent under title III is not to be cavalierly implied. Title III expresses a strong purpose to protect individual privacy by strictly limiting the occasions on which interception may lawfully take place. See United States v. Harpel, 493 F.2d 346, 351 (10th Cir.1974). Stiff penalties are provided for its violation. It would thwart this policy if consent could routinely be implied from circumstances. Jandak v. Village of Brookfield, 520 F.Supp....