$// Hearing Designation Order, Freemon v. AT&T, FCC-94-192 //$ $/ 300.208 Complaints to the Commission /$ $/ 300.409 General Provisions Relating to Proceedings /$ $/ 1.201-1.364 Hearing Proceedings /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Elehue Kawika Freemon and ) Lucille K. Freemon, ) ) Complainants, ) CC Docket No. 94-89 ) v. ) File No. E-90-393 ) American Telephone and Telegraph Company, ) ) Defendant. ) HEARING DESIGNATION ORDER Adopted: July 20, 1994; Released By the Commission: I. INTRODUCTION 1. In this Order we designate the above-captioned complaint proceeding for hearing to resolve material questions of fact surrounding the American Telephone and Telegraph Company's (AT&T's) handling of an operator-assisted telephone call involving the complainants in this case, Elehue Kawika Freemon (Elehue Freemon) and Lucille K. Freemon (Lucille Freemon) (together the Freemons or complainants). The Freemons allege that on May 30, 1988, an AT&T operator intercepted and disclosed the contents or meaning of their telephone conversation in violation of Section 705 of the Communications Act, 47 U.S.C.  605, and other laws not within this Commission's jurisdiction. The issue to be decided in this Section 208 complaint proceeding is whether AT&T's actions violated Section 705 of the Act, and if so, whether the Freemons suffered any measurable harm as a consequence of such violations and are entitled to an award of damages. As discussed below, we are unable to resolve substantial questions of fact raised by the parties, the resolution of which is essential to a determination in this proceeding. An evidentiary hearing will permit both the Freemons and AT&T to establish the record necessary for a decision to be made. II. BACKGROUND AND CONTENTIONS OF THE PARTIES 2. The record shows that on May 30, 1988, at or about 10:30 p.m., Elehue Freemon placed a long distance, operator-assisted, collect call from Gresham, Oregon, to Lucille Freemon, his mother, in Long Beach, California. Although the parties agree that the call was carried by AT&T, the length of the call and whether, in fact, the parties were ever connected to each other is in dispute. At some point, the AT&T operator concluded that Mr. Freemon might be experiencing a medical emergency and asked Lucille Freemon if her son might need emergency medical assistance. The parties differ on some of the details of the operator's intervention, but both sides agree that the operator subsequently contacted local emergency services in Gresham, which, based on the information provided by the AT&T operator, dispatched the local police to Elehue Freemon's residence. The responding officers indicated that when they arrived, Mr. Freemon appeared unsteady and under the influence of a drug. The officers reported that Mr. Freemon admitted taking sleeping pills, but was unable to recall how many. After finding what they believed to be a suicide note, the officers concluded that Freemon had attempted to take his life by ingesting sleeping pills and wine. Following an examination by the Gresham emergency medical technicians, Freemon was transported to Portland Adventist Hospital, where he was hospitalized and "placed on a Police Officer Mental Hold" for his own safety. Freemon was released four days later. 3. The complainants filed their formal complaint August 16, 1990, alleging, inter alia, that AT&T had violated Section 705 of the Act by monitoring the complainants' telephone conversation and disclosing its contents or meaning. On September 20, 1990, AT&T filed an answer in which it disputes the legal and factual bases of the Freemons' claims. Both parties have since filed numerous pleadings and related motions in which the facts and circumstances surrounding the complainants' claims are sharply disputed. In addition, the parties have exchanged interrogatories directed at clarifying the bases of their respective claims. 4. The crux of the Freemons' complaint is the allegation that the AT&T operator who handled Elehue Freemon's May 30, 1988 call improperly interrupted and divulged the contents of his call and thus violated Section 705(a) of the Act. According to Mr. Freemon, AT&T's operator listened to their eight-minute conversation and then interrupted to ask Lucille Freemon if her son needed medical help. Mr. Freemon claims that he had already refused two offers of assistance by the operator and that the operator's subsequent actions were inappropriate. 5. AT&T admits that its operator forwarded complainants' call to the Gresham emergency services agency and advised them that an emergency may have existed with the caller, but claims that she did so when the call was initially placed and that no conversation ensued between the Freemons. AT&T maintains, however, that its operator's actions were a proper and necessary incident to rendering AT&T's service, and thus, were authorized under an exception to Section 705(a), set forth in 18 U.S.C.  2511(2)(a)(i). According to AT&T's operator, Elehue Freemon provided his mother's seven-digit telephone number, but was unable to remember her area code. The operator also stated that he sounded incoherent, and appeared to be having trouble breathing. Based on these facts, AT&T argues that its operator properly concluded that a medical emergency might exist and responded accordingly. 6. In reply, the complainants dispute AT&T's claim that an emergency situation existed that warranted the operator's intervention. Elehue Freemon claims that the AT&T operator misinterpreted the meaning of what she overheard: that he had programmed his mother's area code into his telephone and could not be expected to remember it; that the difficulty in breathing detected by the operator was a result of his exercising on a trampoline; and that his statements to his mother about "ending it all" that the operator may have overheard were in reference to his business. In addition, he asserts that when asked, he told the operator he did not need medical assistance. 7. Finally, AT&T argues that because Section 705(c)(3)(A) of the Act provides for trial of civil actions based on Section 705 in a federal district court or other court of competent jurisdiction, the Commission's Section 208 jurisdiction is superseded. III. DISCUSSION 8. We reject at the outset AT&T's threshold claim that the Commission lacks jurisdiction over the subject matter of the complaint. We find no support in the language of Section 705 or in caselaw decided under that section to support AT&T's position. Section 705(e)(3)(A) states: "Any person aggrieved by any violation of subsection (a) or paragraph 4 of subsection [(e)] may bring a civil action in a United States district court or in any other court of competent jurisdiction." Use of the word "may" shows that Congress clearly intended the statute to provide an aggrieved party the choice of using either this agency or the federal court system to resolve a complaint. The statute simply cannot be read to vest exclusive jurisdiction over a Section 705 complaint in the federal district court. Moreover, Sections 207 and 208 of the Act, 47 U.S.C.  207, 208, states that a complaint may be filed with the Commission alleging any violation of the Act by a common carrier and damages may be claimed in that complaint. Finally, Section 705 also states that the "penalties under this subsection shall be in addition to those prescribed under any other provision of [the Act]." Thus, AT&T's request is denied. 9. The principal factual dispute in this matter centers around AT&T's defense that its operator discussed with Lucille Freemon what she perceived as Elehue Freemon's emergency situation, and, with Lucille Freemon's acquiescence, then referred Mr. Freemon's call to the Gresham emergency services without ever connecting the Freemons to each other. AT&T claims that no conversation between the Freemons took place and its operator transferred Elehue Freemon's call to emergency services pursuant to procedures established by AT&T for such calls. The complainants, on the other hand, assert that they spoke for approximately eight minutes before the operator interrupted the call to speak with Lucille Freemon, and that only after this period did the operator transfer the call to emergency services. 10. We have carefully reviewed the evidence and arguments presented by the parties and conclude that further proceedings are necessary to resolve material questions of fact bearing on whether AT&T violated Section 705 of the Communications Act, as alleged in the complaint. AT&T states that Section 2511(2)(a)(i) of Title 18 permits an operator of a switchboard to intercept and disclose the contents of a telephone call in the normal course of her employment if she has reason to believe that an emergency situation exists. What is not clear from the record, however, is whether the operator's actions were taken in the ordinary course of handling Elehue Freemon's call or whether she connected the call and then monitored it to determine that an emergency situation existed. Particularly in the latter event, such actions could raise a question of lawfulness under Section 705. Moreover, even if it could be said that the record before us provides a sufficient basis to determine that AT&T's actions were unlawful as alleged, we still would be left with a substantial question of whether and to what extent Freemon suffered actual harm and is entitled to an award of damages from AT&T as a consequence of AT&T's actions. In order to avoid further delay in resolving the factual questions posed by the parties, and to ensure that the parties have a full and fair opportunity to present their claims, we will designate this complaint proceeding for hearing before an Administrative Law Judge (ALJ) on the issues of liability and damages set forth below. To the extent it becomes necessary for the ALJ to rule on AT&T's interpretation of Section 2511(2)(a)(i) of Title 18, he should forward to the General Counsel a request that the General Counsel solicit the views of the Department of Justice. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 201, 206, 207, 208, and 209, of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 201, 206, 207, 208, 209, that the above-captioned complaint proceeding IS DESIGNATED FOR HEARING in a proceeding to be held before an Administrative Law Judge at a time and place to be specified in a subsequent order upon the following issues: 1. To determine the facts and circumstances surrounding AT&T's handling of Elehue Freemon's operator- assisted telephone call to his mother, Lucille Freemon, on May 30, 1988. 2. To determine whether a telephone conversation ensued between Elehue Freemon and Lucille Freemon on May 30, 1988, at the time an AT&T operator handled the operator-assisted call at issue. 3. To determine whether AT&T, through its operator or otherwise, intercepted and disclosed the contents or meaning of any telephone conversation that may have taken place between Elehue Freemon and Lucille Freemon on May 30, 1988, within the meaning of Section 705 of the Communications Act. 4. To determine, in light of the evidence adduced under issues 1 through 3 above, whether AT&T's actions in handling Elehue Freemon's May 30, 1988 operator- assisted call violated Section 705 of the Communications Act. 5. To determine, in view of the evidence adduced on the foregoing issues, whether and if so, in what amounts, AT&T should be required to pay monetary damages to complainants. 6. To determine, in view of the evidence adduced on the foregoing issues, whether complainants are entitled to an award of prejudgment interest on any damages recovered in this proceeding. 12. IT IS FURTHER ORDERED, that the burden of proof and the burden of proceeding with the introduction of evidence shall be upon complainants. 13. IT IS FURTHER ORDERED, that the designated parties may avail themselves of an opportunity to be heard by filing with the Commission a Notice of Appearance in accordance with Section 1.221 of the Rules, 47 C.F.R.  1.221, within twenty (20) days of the mailing of this Order. 14. IT IS FURTHER ORDERED that the above-captioned complaint IS DISMISSED in so far as it makes claims and seeks relief pursuant to 18 U.S.C.  2510, 2511, and 2518, and the Fourth, Fifth, Ninth, and nineteenth amendments to the United States Constitution. 15. IT IS FURTHER ORDERED that the Freemons' request for "Discovery Through Use of Public Opinion," filed May 16, 1991, IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary