Not having substantially prevailed in this litigation, plaintiff's request for attorney fees and costs is denied.
In Sugden, supra, [226 F.2d] at 285, the Court did hold that before any right of privacy attached, the voice must be legally on the air; therefore, illegal short wave transmissions were held to be outside the protective ambit of Section 605. As noted in that case, it was necessary to have a license for the transmitting set and also for any base operator to have a license. In that case, however, although the radio station was licensed, those operating it were charged with and found guilty of illegal unlicensed operation under Section 303 of the Act. In the instant case, no such charge was made. The station here was licensed and so were the amateurs charged with certain rule violations. It should be noted, however, that the May 20, 1977 Notice charged violation of Section 97.79 of the Commission's Rules, for operating the station without a licensed amateur operator present.... This is not the same as the situation in Sugden, supra. Under the amateur rules, it is not necessary for all those who operate the station to be licensed. But it is necessary that a licensed operator be present and in control of the station as required by Rule 97.79. Thus, the fact situation here is clearly distinguishable from that in Sugden, supra, where it was necessary for the individuals charged to have a license in order to even use the radio station. Finally, the other violations charged in the instant case were of a more technical nature and thus render Sugden, supra inapplicable. Accordingly, the transmissions in the instant case do fall within the protective provisions of Section 605.
In re Reston, 72 F.C.C.2d 658, 668 (1979) (footnote omitted). Along this same line, the Court is unable to find that the cassette tape containing transmissions recorded by amateur operators and disclosed to the Commission as part of his protest over rules violations by the People's Temple stations is exempt from the prohibition on disclosure contained in section 605. Cf. United States v. Axselle, 604 F.2d 1330, 1335 (10th Cir. 1979); United States v. Savage, 564 F.2d 728, 732 (5th Cir. 1977); 18 U.S.C. § 2511(2)(b) (1976).
In addition, the Court does not find the fact that certain of the taped transmissions were only between the two People's Temple stations in Guyana in any way suspends the application of section 605 for that provisions applies" to all intereste and foreign communication by wire or radio... which originates and/or is received within the United States." 47 U.S.C. § 152(a)(1976).