Texas television station settles federal wiretapping lawsuit

From the Spring 2002 issue of The News Media & The Law, page 33.

A Dallas television station that was sued for violating federal and state wiretap laws settled the lawsuit in January, attorneys for the station said.

Thomas Leatherbury and Guy Kerr, attorneys for WFAA-TV, would not discuss terms of the settlement.

The case, Peavy v. WFAA-TV, was one of three that the U.S. Supreme Court was asked to review involving reporters using information from illegally intercepted phone conversations. The high court decided the most notable of the cases, Bartnicki v. Vopper, in favor of the media in May 2001. The court ruled that two Pennsylvania radio stations and a talk-show host could not be held liable for publishing information of public concern that was obtained unlawfully by a source but where the media were blameless in the illegal interception.

The same month, the Supreme Court refused to hear WFAA-TV’s appeal of a ruling by the U.S. Court of Appeals in New Orleans (5th Cir.). The appeals court held that the station and investigative reporter Robert Riggs could be civilly liable because they knew tape recordings of cordless phone conversations had been made illegally, but they continued to use them.

The Supreme Court’s refusal to hear the appeal let the Fifth Circuit’s ruling stand. The parties reached a settlement last fall after 3½ days of mediation, and the settlement was finalized in January, Leatherbury said.

The station and Riggs had obtained tape recordings of cordless phone conversations of Carver Peavy, a trustee of the local school district. Peavy’s neighbor, Charles Harman, had made the recordings. Harman began using a police scanner to listen to Peavy’s phone calls in 1994. The recorded calls contained conversations in which Peavy allegedly discussed plans to interfere in the school district’s award of an insurance contract and made threats against Harman.

Harman offered the tapes to WFAA, which accepted them in early 1995 after Paul Watler, another attorney for the station, told the reporter and the station that cordless phone calls were not covered by the wiretap laws.

Watler later learned that the federal wiretap statute had been amended to protect cordless phone calls. Watler advised the station not to broadcast the tapes, to return the originals, and not to disclose their contents or confront witnesses without being able to obtain the same information from independent sources first.

Without broadcasting any portion of the tapes, WFAA aired a series of articles on Peavy’s alleged wrongdoing in summer 1995. Peavy and an associate who was also recorded on Harman’s tapes, Eugene Oliver, were indicted for bribery, but they were later acquitted. Both Peavy and Oliver sued WFAA and Riggs in October 1996, alleging violations of the wiretap laws and civil conspiracy, and both settled.

Boehner v. McDermott, the third wiretapping case that the Supreme Court was asked to review, was sent back to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) after the high court ordered that the case be reconsidered in light of Bartnicki. In December, the appeals court remanded the case to the federal trial court in Washington, D.C.

Boehner involves a dispute between two congressmen. Rep. John A. Boehner (R-Ohio) sued Rep. James A. McDermott (D-Wash.) in 1998 for violating a federal wiretapping law by illegally disclosing the contents of an illegally intercepted conference call.

A Florida couple recorded a cell-phone conference call involving Boehner and other House Republicans and gave a copy of the tape to McDermott, who gave the tape to several newspapers. — MD