apply to different situations. Clause 1 prohibits the unauthorized divulgence of the fact of the "existence, contents, substance, purport, effect, or meaning" of a message by anyone assisting in its transmission or reception. This restriction is designed to apply to persons such as telegram or radiogram operators, who must either learn the content of the message or handle a written record of communications in the course of their employment. Clause 1 recognizes that the integrity of the communication system demands that the public be assured that employees who thus come to know the content of messages will in no way breach the trust which such knowledge imposes on them. Clause 3, not relevant in this case, extends similar restrictions to unauthorized persons who assist in the transmission or reception of these messages. In order to further insure secrecy, clauses 2 and 4 establish a blanket prohibition of any disclosure by unauthorized persons who intercept a communication during its transmission.
The defendant argues that the Telephone Company, by producing for the FBI itemized bills listing the number and destination of defendant's calls, violated clause 1 of section 605 by making an unauthorized divulgence of the 'existence' of these calls. It is true that this clause refers to the disclosure of the existence of a communication. But to apply this language in the literal manner requested by defendant would require the Court to blind itself to the obvious purpose of section 605, and "* * * literalness is no sure touchstone of legislative purpose." International Longshoremen's and Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243, 72 S. Ct. 235, 239, 96 L. Ed. 275 (1952). As was pointed out above, the purpose of clause 1 is to prohibit any disclosures - even of the mere existence of a communication - by persons such as telegraph operators who may also have intimate knowledge of the content of a message. However, telephone calls are fleeting and ephemeral things, and there is no recorded message of such communication nor need employees listen to the conversation. Therefore, the Telephone Company could have no knowledge of the substance of the messages in the present case unless someone surreptitiously intercepted the calls during their transmission. If this were the case, clauses 2 and 4 would absolutely prohibit any disclosure concerning these calls. However, the defendant admits that there was here no such interception (defendant's brief, pp. 2-3). Since there is no other way in which telephone employees can learn of the contents of calls, neither the language of clause 1 taken in its proper context nor its ultimate purpose applies to such employees. To agree with defendant that this provision prohibits telephone companies from revealing the accounting data covering interstate calls would fail to further the purpose of section 605 and might lead to absurd results. This we cannot do. United States v. Bryan, 339 U.S. 323, 338, 70 S. Ct. 724, 94 L. Ed. 884 (1950); Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 841, 845 (2 Cir. 1963), cert. denied, 376 U.S. 952, 84 S. Ct. 968, 11 L. Ed. 2d 971 (1964).
Consequently, the Court holds that clause 1 of section 605 has no application to telephone company accounting employees. Therefore, the Telephone Company's disclosure of the existence of defendant's telephone listings, including private listings and accounting records relating thereto, in no way transgressed section 605 of the Federal Communications Act. The evidence thereby obtained will not be suppressed.
Because of our decision, it is unnecessary to discuss whether the demand of an FBI agent constitutes "other lawful authority" under clause 1 of section 605, or whether the subsequent issuance of a Grand Jury subpoena for these records could cure any original illegality in their disclosure.
For the above reasons, defendant Russo's motion to suppress the evidence gained by FBI inspection of telephone records, and by the search of February 6, 1965, will be denied.