Authority of National Telecommunications and Information

Administration to Monitor Radio Communications

T h e N ational T elecom m unications and Inform ation A dm inistration (N T IA ) m ay m onitor 

radio com m unications to the extent reasonably necessary to discharge its functions 

und er 47 U .S.C. § 305(a) and 15 U .S.C. § 272(12) & (13).

T itle III o f the O m nibus C rim e C ontrol and Safe S treets A ct o f 1963 prohibits N T IA 

from aurally m onitoring com m unications betw een a radio and a land-line telephone.

February 12, 1980

M EM O RA N D U M O PIN IO N FOR T H E G E N E R A L COUNSEL, 

D E PA R T M E N T O F CO M M ERCE

This responds to your request for our views on the authority of the. 

National Telecommunications and Information Administration (NTIA) 

to monitor certain radio transmissions. You specify that N TIA will 

m onitor these communications only to the extent necessary to perform 

its authorized functions, and that it will not divulge the contents or the 

existence of any particular intercepted message. Similarly, you say, 

N T IA will not attem pt to decode coded messages.

For the reasons we state below, we believe that, with one exception, 

N TIA may conduct these monitoring activities to the extent they are 

reasonably necessary to discharge N T IA ’s statutory functions under 47 

U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13). The one exception is 

that N TIA may not aurally monitor communications between a radio 

and a land-line telephone.

I. NTIA Authority to Monitor Radio Communications

N T IA derives its authority from the Secretary of Commerce. No 

statute explicitly empowers the Secretary to monitor radio communications, but we believe that tw o statutes implicitly authorize the Secretary 

to m onitor in certain situations. First, § 305(a) of the Communications 

A ct of 1934, 47 U.S.C. § 305(a), provides that “[r]adio stations belonging to and operated by the United States . . . shall use such frequencies as shall be assigned . . . by the President.” As you know, when 

the function of assigning frequencies to government stations was vested 

in the Office of Telecommunications Policy (OTP), see Reorganization 

Plan No. 1 of 1970, 84 Stat. 2083, we expressed the opinion that O TP 

was “implicitly authorized to conduct monitoring activities related to

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its statutory responsibilities under § 305(a).” We reasoned that O T P ’s 

functions were analogous to those of the Federal Communications 

Commission, which assigns frequencies to radio stations not owned by 

the government and regulates certain aspects of their transmissions. 

United States v. Sugden, 226 F.2d 281, 284 (9th Cir. 1955), a ffd per

curiam, 351 U.S. 916 (1956), held that the Commission can monitor 

radio communications in order to carry out its duty of assigning frequencies, because “[e]xcept by listening, how can the Commission tell 

with certainty that a station is using its assigned frequency?” Id. By 

analogy, we concluded, O TP was authorized to monitor radio transmissions in the course of performing its function of assigning frequencies to 

stations owned by the government. In 1977, this function was transferred to the Secretary of Commerce. Reorganization Plan No. 1 of 

1977, as amended, § 5(B), 91 Stat. 1633. You tell us that the Secretary 

has delegated this responsibility to NTIA. Plainly, then, N TIA has the 

same authority as O T P had to monitor radio communications to the 

extent reasonably necessary to carry out its statutory responsibilities 

under § 305(a).

The second statutory source of N T IA ’s authority to monitor is 15 

U.S.C. § 272(12) & (13). These subsections provide:

The Secretary of Commerce . . . is authorized to undertake . . .

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(12) the investigation of the conditions which affect the 

transmission of radio waves from their source to a 

receiver;

(13) the compilation and distribution of information on 

such transmission of radio waves as a basis for choice of 

frequencies to be used in radio operations.

You tell us that the Secretary of Commerce has also delegated these 

functions to NTIA. We believe that the reasoning of Sugden applies 

here as well; to the extent that the monitoring you describe is “reasonably ancillary to the effective performance of [these statutory] responsibilities,” United States v. Southwestern Cable Co., 392 U.S. 157, 178 

(1968), we believe that N TIA is implicitly authorized to conduct it. See,

e.g., Permian Basin Area Rate Cases, 390 U.S. 747, 777, 780 (1968).

Your letter appears to assume that Executive O rder No. 12046 confers on N TIA additional authority to monitor radio communications. 

That executive order does not purport expressly to authorize the Secretary of Commerce to monitor. Your letter seems to suggest, however, 

that such authority is implicit in the executive order’s instruction that 

the Secretary “serve as the President’s principal adviser on telecommunications policies,” § 2-401, conduct economic and technical analyses of telecommunications policies, § 2-412, represent the Executive

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Branch in dealings with the Federal Communications Commission, § 2- 

407, and perform similar tasks. But as a general m atter,1 an executive 

order cannot enlarge the pow er of the Executive Branch beyond what 

Congress has granted. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 585 (1952). Therefore Executive O rder No. 12046 does 

not expand N T IA ’s pow er to monitor beyond what can reasonably be 

inferred from 47 U.S.C. § 305(a) and 15 U.S.C. §272(12) & (13).2

Partly because your letter assumed that Executive O rder No. 12046 

provides an independent source of authority to monitor, you did not 

make clear the extent to which N TIA needs to conduct the sorts of 

monitoring activities your letter describes in order to fulfill its statutory 

responsibilities. Thus we cannot specify w hich among the kinds of 

transmissions you mention in your letter may be monitored. In general, 

we believe that N T IA has authority to m onitor both electrical impulses 

and voices on nongovernment frequencies; but it may monitor them 

only to the extent that such monitoring is reasonably necessary to 

enable N TIA to assign frequencies to government stations, and to 

perform the functions incident to assigning frequencies, or to investigate 

the conditions affecting the transmission of radio waves and to compile 

and distribute information about radio waves “as a basis for choice of 

frequencies to be used in radio operations.” This authority is, of course, 

subject to the statutory restrictions to which we turn next.

II. Statutory Limits on NTIA’s Authority to Monitor

A t first glance, tw o statutes appear to restrict N T IA ’s authority. 

Section 605 of the Communications A ct of 1934, 47 U.S.C. §605, 

provides, in relevant part, that “[n]o 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.” T he Departm ent of Justice 

has consistently taken the position that since § 605 is phrased in the 

conjunctive—“intercept . . . and divulge” (emphasis added)—a government agency may intercept radio communications so long as it does 

not disclose information about them to any person outside the G overn­

’ N o inherent presidential powers, derived directly from the Constitution, appear to be involved in 

N TIA monitoring. See generally United Stales v. United States District Court, 407 U.S. 297, 308-12 

(1972); Fleishman & Aufses, Law and Orders: The Problem o f Presidential Legislation. 40 Law & 

Contemp. Probs., Summer 1976, at-1, 11-13. In any event, as we noted, Executive O rder No.. 12046 

does not expressly attem pt to authorize the Secretary o f C om m erce to monitor, and we are reluctant 

to assume that inherent executive powers have been invoked by implication.

2 As you note, Executive O rder No. 11556 assigned to O T P many functions similar to those 

assigned to the Secretary in Executive O rder No. 12046, and § 5(B) o f Reorganization Plan No. 1 of 

1977 transferred “(a]ll . . . functions o f the Office o f Telecom m unications Policy and o f its D irector,” 

with exceptions not relevant here, to the Secretary o f Commerce. But for the reasons w e have given, 

Executive O rder No. 11556 could not have expanded O T P ’s pow ers beyond w hat was granted by 

statute, and in any event a-reorganization Mmay not have the effect o f . . . authorizing an agency to 

exercise a function w hich is not expressly authorized by law at the time the plan is transmitted to 

Congress." 5 U.S.C. § 905(a)(4). Thus Reorganization Plan No. 1 o f 1977 does not give N TIA any 

additional statutory authority.

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ment. See Office of Legal Counsel Memorandum for the D irector, 

Federal Bureau of Investigation, May 29, 1979, 3 Op. O.L.C. 240, 245 

(1979) (hereinafter “ 1979 OLC M emorandum”) H.R. Rep. No. 1283, 

Pt. 1, 95th Cong., 2d Sess. 15 (1978). See also United States v. Butenko,

494 F.2d 593, 623-24 (3rd Cir.) (Aldisert, J;, concurring and dissenting), 

cert, denied, 419 U.S. 881 (1974). Moreover, as the language of §605 

suggests, only divulging the contents or existence of a particular “com ­

munication” is prohibited. In our view, N TIA would not violate § 605 

if, after monitoring, it divulged only aggregate statistics about the use 

of radio frequencies. You stipulate that you will not reveal the contents 

of communications to any other party; so long as “contents” is understood broadly to include the “existence” and “purport, effect, or meaning” of the particular communication, we believe that N T IA ’s monitoring will not run afoul of 47 U.S.C. § 605.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 

as amended, 18 U.S.C. §§ 2510-2520, presents a more complex question. 

It provides that with certain exceptions, “any person 

who . . . willfully intercepts, endeavors to intercept, or procures any 

other person to intercept or endeavor to intercept, any wire or oral 

communication . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 2511 (1 )(a). A 

“wire communication” is defined as:

any communication made in whole or in part through the 

use of facilities for the transmission of communications by 

the aid of wire, cable, or other like connection between 

the point of origin and the point of reception furnished or 

operated by any person engaged as a common carrier in 

providing or operating such facilities for the transmission 

of interstate or foreign communications.

18 U.S.C. §2510(1). An oral communication is defined as “any oral 

communication uttered by a person exhibiting an expectation that such 

communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C. §2510(2). Radios contain wires, but 

the wires are not “connection[s] between the point of origin and the 

point of reception furnished or operated by . . . a common carrier.” 

For this reason, we have previously expressed the view that communications between two radios are not “wire communications” within the 

meaning of Title III. 1979 O LC Memorandum, 3 Op. O.L.C. at 242. 

The Ninth Circuit has reached the same conclusion. United States v. 

Hall, 488 F.2d 193, 196-97 (9th Cir. 1973).

On the basis of the legislative history of Title III, see e.g., S. Rep. No. 

1097, 90th Cong., 2d Sess. 66, 75, 89-90 (1968); see also United States v. 

Hall, 488 F.2d at 198, we have previously concluded, 1979 OLC 

Memorandum, 3 Op. O.L.C. at 242 & n.2, that when Congress limited 

the definition of “oral communication” to communications by a person

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who has “an expectation that such communication is not subject to 

interception under circumstances justifying such expectation,” it intended to include only those communications made with a “reasonable 

expectation of privacy” in the sense in which that term is used in 

defining a “search” under the Fourth Amendment, see, e.g., K atz v. 

United States. 389 U.S. 347, 351-53 (1967). See also United States v. 

United States District Court, 407 U.S. 297, 302 (1972). 1979 O LC Memorandum, 3 Op. O.L.C. at 242 & n.2. We have also previously concluded 

that radio users have no reasonable expectation of privacy in ordinary 

radio transmissions. We reasoned that the “ease of interception, the 

widespread availability of the technology required for interception, and 

the ease of access for the user to more private means of communication” all suggested that one cannot reasonably expect ordinary radio 

communications to remain private. Id. at 243.3

It follows from these conclusions we have previously reached that 

ordinary communications by radio are not “oral communications” 

within the meaning of Title III.4 As we have said, communications 

between radios are also not “wire communications.” Thus Title III, like 

§ 605, does not prohibit N TIA from intercepting ordinary communications between radios. We know of no other statute that applies.

Title III does, however, prohibit N TIA from monitoring communications between a party using a mobile telephone or other radio and a 

party using a land-line telephone. “Wire communication” is defined by 

Title III as “any communication made in whole or in part . . . by the 

aid o f ’ wire or cable facilities furnished or operated by a common 

carrier. 18 U.S.C. §2510(1) (emphasis added). In.the legislative history, 

Congress noted that this definition is intended to be “comprehensive.” 

S. Rep. No. 1097, 90th Cong., 2d Sess. 89 (1968). Otherwise, the 

legislative history seems to give no indication of how Congress wished 

to treat communications between a radio telephone and a land-line 

telephone. In these circumstances, we must follow the language of the 

statutory definition; since communications betweeen a radio telephone 

and a land-line telephone are made “in part through the use of facilities 

for the transmission of communications by the aid of wire, cable, or 

other like connection . . . furnished or operated by . . . a common 

carrier,” we must conclude that they are “wire communications” under 

Title III. The Ninth Circuit, apparently the only court to have considered the issue, reached the same conclusion. United States v. Hall, 488 

F.2d at 197-98. Title III prohibits “any person” from “intercept[ing]” 

wire communications without a warrant; it contains some exceptions,

3 As the quoted language suggests, we assume that N TIA proposes to intercept only ordinary radio 

transmissions, not transmissions made by sophisticated means designed to prevent the transmission 

from being intercepted by devices that are generally known to exist.

4 Since radio users have no reasonable expectation of privacy in ordinary radio transmissions, 

intercepting such transmissions would not violate the Fourth Amendment.

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but none applies to N T IA .5 As you know, we have previously said that 

monitoring electrical impulses alone—without translating them to voice 

impulses—does not violate Title III. Therefore Title III does not prohibit N TIA from monitoring the electronic impulses of communications 

between radios and land-line telephones. But N TIA may not aurally 

monitor a transmission if any party to the transmission is using a landline telephone. With this restriction, we believe that N TIA is authorized to monitor radio communications in the categories you identify in 

your letter, when such monitoring is reasonably necessary if NTIA is to 

perform its functions under 47 U.S.C. § 305(a) and 15 U.S.C. § 272(12) 

& ( 13).

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

8 The statute partially exempts “an officer, employee, or agent o f the Federal Communications 

Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission" from these prohibitions. 18 U.S.C. § 2511 (2)(b). As you know, we 

previously concluded that this exemption did not embrace employees o f N T fA ’s predecessor, OTP. 

We reasoned that when Congress enacted the Omnibus Crim e C ontrol Act, it was aware that certain 

agencies had responsibility for governm ent communications corresponding to the Federal Com m unications Commission’s responsibilities for private communications; yet Congress exempted only the 

Commission from Title III. We noted that the case law confirm ed this view. See, e.g.. United States v. 

Sugden, 226 F.2d 281, 285 (9th Cir. 1955), a f f d per curiam. 351 U.S. 916 (1956). For these same 

reasons, N TIA is not exempted from the restrictions contained in Title III. No other exemptions are 

relevant.

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