The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, District Judge.
Instituted in September 1979 under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552, the focus of this litigation is certain records, in the form of tape recordings of amateur radio transmissions, in the possession of defendant Federal Communications Commission (FCC) that had been denied to plaintiff by the Commission in a memorandum opinion and order adopted and released in July 1979. Plaintiff James Reston, Jr., having filed his final submission in April 1980, disposition of this action, pending on cross-motions for summary judgment, is now appropriate. After careful consideration of the various filings, the Court has determined that there are no material facts in dispute, making summary judgment proper, and that defendant's motion should be granted and judgment entered in its favor and against plaintiff.
While carrying out its enforcement responsibilities with regard to amateur radio station operations, the Commission's routine monitoring of amateur frequencies revealed certain ongoing violations of FCC rules by members of the now well-known People's Temple religious organization transmitting between amateur radio stations WD 6 DVI and WA 6 DTJ in San Francisco, California, and amateur radio stations WB6MID portable 8R3 and WB6MWH/8R1 in Jonestown and Georgetown, Guyana, South America. Ultimately, notices of FCC rule violations were sent to two licensed amateur operators associated with the People's Temple in California in May 1977 and in March, April, May, and October 1978, and fines were assessed.
In the course of its investigation of the People's Temple stations, the FCC recorded a number of radio transmissions between the California and Guyana stations, amassing twenty-five tape cassettes and four reels of tape. Also in the possession of the Commission, and at issue in this action, is one tape cassette, which is alleged to be a recording of transmissions by persons involved with the People's Temple, that was made by an amateur radio operator and submitted to the FCC in July 1978 as evidence to support his complaints about rule violations by the People's Temple stations. Prior to plaintiff's FOIA request, the only release of the tapes by the Commission was made under subpoena to a federal grand jury in California, which was investigating the events in Jonestown, Guyana, that resulted in the tragic death of United States Congressman Leo Ryan and others, and to the Committee on International Relations of the United States House of Representatives.
Desiring to hear these tapes to gather resource material for a forthcoming book on the Reverend Jim Jones and the People's Temple organization of which Jones was the founder, in January 1979 plaintiff Reston submitted an informal inquiry to FCC General Counsel Robert Bruce asking for the release of all materials held by the Commission regarding the People's Temple radio transmissions. This informal request was denied and on March 28, 1980, a formal FOIA request was submitted to the Commission.
In an opinion released July 18, 1979, the Commission denied plaintiff's request in part and granted it in part. In re Reston, 72 F.C.C.2d 662 (1979). With regard to the tape recordings, the Commission found alternative bases for denying plaintiff's FOIA request. Citing section 552(b)(3), which exempts from disclosure those records whose revelation is specifically barred by another statute, the Commission found that Congress expressed its intention in section 605 of the Communications Act of 1934, as amended, 47 U.S.C. § 605, that amateur broadcasts, such as those involved, that were not intended for use by the general public were not to be disclosed. Id. at 665-69. Alternatively, the Commission stated, disclosure was barred by section 552(b)(7)(A) because the tape recordings were, within the meaning of that provision, investigatory records compiled for law enforcement purposes whose disclosure would interfere with the ongoing law enforcement proceedings of the California grand jury. Id. at 669-70. Further, responding fully to plaintiff's request for all materials relating to the radio transmissions, the Commission revealed that there were eight other documents fitting that description of which only two would be withheld, those being internal legal memoranda exempt from disclosure under section 552(b)(5). Id. at 670-71. While plaintiff's complaint in this action refers to the release of all records relating to the People's Temple radio transmissions, it is apparent from the filings that his only interest is in the tape recordings and thus the Commission's invocation of section 552(b)(5) to exempt the two legal memoranda from disclosure, not being specifically addressed by plaintiff, is deemed to have been conceded as proper.
Turning then to the question of the propriety of the Commission's refusal to release the tape recordings at issue, we begin with the well-established proposition that because the general philosophy of the Freedom of Information Act is one of full disclosure absent some clearly delineated exemption in the Act, the agency here must bear the burden of showing that the recordings are exempt. See, e.g., Federal Open Market Committee of the Federal Reserve System v. Merrill, 443 U.S. 340, 351-52, 99 S. Ct. 2800, 2808-09, 61 L. Ed. 2d 587 (1979); Chrysler Corp. v. Brown, 441 U.S. 281, 290 & n. 10, 99 S. Ct. 1705, 1712 & n. 10, 60 L. Ed. 2d 208 (1979). In its efforts to fulfill this burden, the Commission once again proffers alternative grounds to justify nondisclosure. While choosing to abandon its original reliance upon exemption (7)(A) of section 552(b) because in December 1979 the grand jury investigation in California was concluded and its members dismissed, the Commission nonetheless continues to rely on exemption (3) in section 552(b). In this regard, it refers to two statutory provisions it contends exempt the tapes from disclosure: section 605 of title 47, upon which it relied in its July 1979 decision, and Rule 6(e) of the Federal Rules of Criminal Procedure. In considering these two statutory provisions, because the Court has determined that section 605 is indeed a bar to the disclosure of the tapes of People's Temple transmissions, it need not and will not reach the question of whether Rule 6(e) would likewise preclude their release.
Subsection (3) of section 552(b), the exemption upon which the Commission relies, states that the disclosure provisions of section 552 do not apply to matters that are "specifically exempted from disclosure by statute..., provided that such statute (A) requires that the matters be with-held from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." As was made clear by the United States Court of Appeals for the District of Columbia Circuit in American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 415, 574 F.2d 624, 626 (1978), any agency attempt to invoke this exemption raises the initial issue whether the statute in question, in this instance section 605, fulfills the requirements of either subsection (A) or (B) of section 552(b)(3).
As set out in title 47 of the United States Code, section 605 provides:
Except as authorized by chapter 119, Title 18, [the provisions regulating the interception of wire and oral communications,] no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communications 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, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any inter-state 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. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing 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 broadcast or transmitted by amateurs or others for the use of the general public, or which relates to ships in distress.
47 U.S.C. § 605 (1976). It is apparent from the terms of section 605 that while it cannot fall within subsection (A) in that it fails to leave "no discretion on the issue [of disclosure]," it is a candidate under subsection (B) as it establishes "particular criteria for withholding or refers to particular types of matters to be withheld." In determining whether a given statute fulfills this criteria, the court in American Jewish Congress, after examining certain statutes that Congress had indicated in the legislative history of subsection (B) would or would not meet its requirements, declared that "[these] and other examples imply a congressional sense that the crucial distinction lay between statutes that in some manner told the official what to do about disclosure and those that did not significantly inform his discretion in this regard." 187 U.S.App.D.C. at 418, 574 F.2d at 629 (emphasis in original). This provision does indeed meet these criteria. While the second sentence of section 605 is quite specific in that "[no] person not being authorized by the sender shall intercept any radio communication and divulge... [the] contents... to any person," nonetheless that provision also sets forth with particularity those communications subject to disclosure, that is, those "broadcast or transmitted by amateurs or others for the use of the general public, or which relates to ships in distress." It is evident that in this provision, the strictures of which the Commission cannot waive, see United States v. Sugden, 226 F.2d 281, 285 (9th Cir. 1955), aff'd per curiam, 351 U.S. 916, 76 S. Ct. 709, 100 L. Ed. 1449 (1956), Congress has indeed adequately informed agency officials about what to do regarding disclosure and, as a result, section 605 qualifies as a statute by whose terms the Commission may claim, under section 552(b)(3)(B), an exemption from the general requirement of disclosure under section 552.
Having so concluded, the next question that arises is to what extent section 605 demands the disclosure or nondisclosure of the taped communications in question here. That provision states that "no person... shall intercept any radio communication and divulge [it]," a requirement that applies not only to any "individual, partnership, association, joint-stock company, trust, or corporation," 47 U.S.C. § 153, but also to the Commission except to the extent such interception or disclosure is necessary to aid the Commission in fulfilling its responsibility to enforce the provisions of the Communications Act. United States v. Sugden, supra, 226 F.2d at 285; see 18 U.S.C. § 2511(2)(b).
The disclosure requested in this instance having nothing to do with the enforcement of those laws regulating radio communications, a further provision must be found elsewhere within section 605 that would allow the disclosure plaintiff seeks. To this end, the final sentence of section 605 becomes the object of scrutiny for it declares that "[this] section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is broadcast or transmitted by amateurs or others for the use of the general public, or which relates to ships in distress." More specifically, the parties focus on the phrase "amateurs or others for the use of the general public," plaintiff arguing that this language exempts all amateur transmissions from section 605's prohibition on interception and disclosure, while defendant asserts that it applies only to those amateur transmissions intended for the use of the general public, which those in question here were not.
It is this question of statutory construction with which the Court is confronted.
Consideration of the words of a statute is, of course, the initial step in any endeavor at statutory interpretation. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 2485, 61 L. Ed. 2d 82 (1979); American Trucking Associations v. United States, 195 U.S.App.D.C. 266, 271-72, 602 F.2d 444, 449-50, cert. denied, 444 U.S. 991, 100 S. Ct. 522, 62 L. Ed. 2d 420 (1979). In this regard, as support for its ...