NELSON, Circuit Judge:
The government appeals the district court’s dismissal of indictments against two Parlier police officers. The officers were accused of bugging a closed executive session of the Parlier City Council in violation of 18 U.S.C. § 2511(l)(b)(ii)
which pro
scribes the use of an electrical or mechanical device to intercept an oral communication. This case presents the novel question of whether section 2511(l)(b)(ii) requires a showing of an effect on interstate or foreign commerce.
I.
Background
The parties stipulated to the following facts:
On or about October 27,1981, the Parlier City Council met in executive session during the evening hours. This executive session of the City Council was held in the courtroom of the Parlier Justice Court, which also served as the City Council Chambers. The Parlier Police Department was located in the same building, and it adjoined the Justice Court/City Council Chambers.
Prior to commencement of the City Council executive session, a Radio Shack brand FM wireless miniature microphone was surreptitiously taped under the counsel table of the courtroom where the City Council sat when in session. The miniature microphone measures 1%" by %" by operates on a tuneable 88-108 MHz FM band, and is powered by a 1.4 volt disc battery. The transmission range of the microphone does not exceed 250 feet.
Before the microphone was taped under the courtroom counsel table, an FM radio with a built-in cassette player had been adjusted to somewhere in the middle of the band range to receive transmissions from the microphone. The radio/cassette player was located in the Parlier Police Department, adjoining the City Council Chambers. The radio was 90 to 100 feet from the microphone located under the courtroom table.
The entire City Council session was overheard through the microphone and transmitted to the FM radio receiver located in the adjoining Parlier Police Department where the session was recorded on the radio’s built-in cassette player.
The government concedes that it cannot establish that there was any interference with any radio broadcast or reception as a result of the monitoring and broadcasting of the City Council session through the FM miniature microphone.
The district court dismissed the 18 U.S.C. § 2511(l)(b)(i) violation holding that an essential element — a showing of an effect upon interstate commerce — was absent. Finding no underlying violation of section 2511, the district court additionally dismissed the 18 U.S.C. § 2511(l)(c) violation.
We hold that section 2511(l)(b)(ii) proscribes the interception of any oral communication, through the use of a device that transmits radio communications,
interstate or intrastate.
Therefore, a showing of an effect on interstate commerce is unnecessary. Accordingly, we reverse the district court’s dismissal of the section 2511(l)(b)(ii) violation. With respect to the
section 2511(l)(c) violation, we remand so that the district court may hold proceedings in light of our above holding.
II.
Standard of Review
Since the parties have stipulated to the facts, none is in dispute. The only question then is whether the district court correctly interpreted section 2511(l)(b)(ii). This is a pure question of law and is therefore reviewable
de novo. United States v. McConney,
728 F.2d 1195, 1201 (9th Cir.) (en banc),
cert. denied,
— U.S. - 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
III.
Section 2511(l)(b)(ii)
The government argues that section 251 l(l)(b)(ii) applies to
“all
radio broadcasts, not just those that actually move in interstate commerce.” Relying on the Fourth Circuit’s decision in
United States v. Burroughs,
564 F.2d 1111 (4th Cir.1977), however, the trial court concluded that the “appropriate factual nexus” was lacking and dismissed the violations.
United States v. Anaya,
601 F.Supp. 1318, 1323-24 (E.D.Cal.1985).
In
Burroughs,
the defendants were indicted for violating section 2511(l)(a) for bugging the telephone in a motel room across the street from defendants’ plant. Affirming the defendants’ acquittals, the
Burroughs
court held that subparagraph (a) requires either a showing that the persons charged were acting under color of law or a showing of an effect upon interstate commerce. Continuing, the court, in dictum, stated: “The interception of
wire
communications under § 2511(l)(a) and
oral
communications under § 2511(l)(b)(i)-(iv) specifically require a showing of an effect upon interstate commerce to establish a violation of the statute.”
Burroughs,
564 F.2d at 1113 (emphasis in original). Defendants, here, contend that since it is stipulated the government cannot prove interference with any radio broadcast or reception and it was physically impossible for the broadcast to extend beyond state lines,
Burroughs
is dispositive, and the dismissal of the violations must be affirmed.
The government, however, advances a different interpretation of section 2511(l)(b)(ii). It apparently contends that subparagraph (b)(ii)’s prohibition against radio interception of oral communications should, like subsection (a)’s prohibition against the interception of
wire
communications, extend to all such radio interceptions,
interstate and intrastate.
The government argues that interstate and intrastate radio transmissions, as in the case of interstate and intrastate wire communications, are so interdependent that Congress necessarily intended to exercise jurisdiction over those radio transmissions which directly affect interstate commerce
and
over those that do not.
See Fisher’s Blend Station, Inc. v. State Tax Commission,
297 U.S. 650, 655, 56 S.Ct. 608, 610, 80 L.Ed. 956 (1936) (“By its very nature broadcasting transcends state lines and is national in its scope and importance — characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause.”);
Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co.,
289 U.S. 266, 279, 53 S.Ct. 627, 633, 77 L.Ed.
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NELSON, Circuit Judge:
The government appeals the district court’s dismissal of indictments against two Parlier police officers. The officers were accused of bugging a closed executive session of the Parlier City Council in violation of 18 U.S.C. § 2511(l)(b)(ii)
which pro
scribes the use of an electrical or mechanical device to intercept an oral communication. This case presents the novel question of whether section 2511(l)(b)(ii) requires a showing of an effect on interstate or foreign commerce.
I.
Background
The parties stipulated to the following facts:
On or about October 27,1981, the Parlier City Council met in executive session during the evening hours. This executive session of the City Council was held in the courtroom of the Parlier Justice Court, which also served as the City Council Chambers. The Parlier Police Department was located in the same building, and it adjoined the Justice Court/City Council Chambers.
Prior to commencement of the City Council executive session, a Radio Shack brand FM wireless miniature microphone was surreptitiously taped under the counsel table of the courtroom where the City Council sat when in session. The miniature microphone measures 1%" by %" by operates on a tuneable 88-108 MHz FM band, and is powered by a 1.4 volt disc battery. The transmission range of the microphone does not exceed 250 feet.
Before the microphone was taped under the courtroom counsel table, an FM radio with a built-in cassette player had been adjusted to somewhere in the middle of the band range to receive transmissions from the microphone. The radio/cassette player was located in the Parlier Police Department, adjoining the City Council Chambers. The radio was 90 to 100 feet from the microphone located under the courtroom table.
The entire City Council session was overheard through the microphone and transmitted to the FM radio receiver located in the adjoining Parlier Police Department where the session was recorded on the radio’s built-in cassette player.
The government concedes that it cannot establish that there was any interference with any radio broadcast or reception as a result of the monitoring and broadcasting of the City Council session through the FM miniature microphone.
The district court dismissed the 18 U.S.C. § 2511(l)(b)(i) violation holding that an essential element — a showing of an effect upon interstate commerce — was absent. Finding no underlying violation of section 2511, the district court additionally dismissed the 18 U.S.C. § 2511(l)(c) violation.
We hold that section 2511(l)(b)(ii) proscribes the interception of any oral communication, through the use of a device that transmits radio communications,
interstate or intrastate.
Therefore, a showing of an effect on interstate commerce is unnecessary. Accordingly, we reverse the district court’s dismissal of the section 2511(l)(b)(ii) violation. With respect to the
section 2511(l)(c) violation, we remand so that the district court may hold proceedings in light of our above holding.
II.
Standard of Review
Since the parties have stipulated to the facts, none is in dispute. The only question then is whether the district court correctly interpreted section 2511(l)(b)(ii). This is a pure question of law and is therefore reviewable
de novo. United States v. McConney,
728 F.2d 1195, 1201 (9th Cir.) (en banc),
cert. denied,
— U.S. - 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
III.
Section 2511(l)(b)(ii)
The government argues that section 251 l(l)(b)(ii) applies to
“all
radio broadcasts, not just those that actually move in interstate commerce.” Relying on the Fourth Circuit’s decision in
United States v. Burroughs,
564 F.2d 1111 (4th Cir.1977), however, the trial court concluded that the “appropriate factual nexus” was lacking and dismissed the violations.
United States v. Anaya,
601 F.Supp. 1318, 1323-24 (E.D.Cal.1985).
In
Burroughs,
the defendants were indicted for violating section 2511(l)(a) for bugging the telephone in a motel room across the street from defendants’ plant. Affirming the defendants’ acquittals, the
Burroughs
court held that subparagraph (a) requires either a showing that the persons charged were acting under color of law or a showing of an effect upon interstate commerce. Continuing, the court, in dictum, stated: “The interception of
wire
communications under § 2511(l)(a) and
oral
communications under § 2511(l)(b)(i)-(iv) specifically require a showing of an effect upon interstate commerce to establish a violation of the statute.”
Burroughs,
564 F.2d at 1113 (emphasis in original). Defendants, here, contend that since it is stipulated the government cannot prove interference with any radio broadcast or reception and it was physically impossible for the broadcast to extend beyond state lines,
Burroughs
is dispositive, and the dismissal of the violations must be affirmed.
The government, however, advances a different interpretation of section 2511(l)(b)(ii). It apparently contends that subparagraph (b)(ii)’s prohibition against radio interception of oral communications should, like subsection (a)’s prohibition against the interception of
wire
communications, extend to all such radio interceptions,
interstate and intrastate.
The government argues that interstate and intrastate radio transmissions, as in the case of interstate and intrastate wire communications, are so interdependent that Congress necessarily intended to exercise jurisdiction over those radio transmissions which directly affect interstate commerce
and
over those that do not.
See Fisher’s Blend Station, Inc. v. State Tax Commission,
297 U.S. 650, 655, 56 S.Ct. 608, 610, 80 L.Ed. 956 (1936) (“By its very nature broadcasting transcends state lines and is national in its scope and importance — characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause.”);
Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co.,
289 U.S. 266, 279, 53 S.Ct. 627, 633, 77 L.Ed. 1166 (1933) (“No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications. No state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities.”).
We agree with the government. A close reading of both the statute and its legislative history facilitates resolution of this novel issue.
On its face, the structuring of subsection 2511(1) seems inexplicable; the interception of
wire
communications is prohibited in only subparagraph (a), yet, the interception of
oral
communications is expressly prohibited in both subparagraphs (a) and (b). The unusual statutory construction is, however, alluded to in the legislative history of section 2511.
Congress, throughout the legislative process, was confident that its authority to legislate as to the interception of
wire
communications (interstate and intrastate) was solidly supported by the commerce clause. See 18 U.S.C. § 2511 congressional findings; S.Rep. No. 1097, 90th Cong., 2d Sess. 92,
reprinted in
1968 U.S.Code Cong. & Ad.News 2112, 2180 [hereinafter cited as the Report]. As the Report notes, the common law supported the proposition that Congress could proscribe the interception of
wire
communications, both interstate and intrastate, pursuant to the commerce clause:
Subparagraph (a) establishes a blanket prohibition against the interception of any wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign communications network, Congress has plenary power under the commerce clause to prohibit all interception of such communications, whether by wiretapping or otherwise.
(Weiss v. United States,
60 S.Ct. 269, 308 U.S. 321 [84 L.Ed. 298] (1939)).
Report,
supra,
at 2180.
With respect to regulating the interception of oral communications, however, Congress was less certain that it could legitimately legislate with regard to
all
such communications. Apparently, Congress was unsure whether
all
interceptions of oral communications have an effect upon interstate commerce.
See
Right of Privacy Act of 1967: Hearings on S. 928 Before the Subcomm. on Admin. Practice and Proc. of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. 441 (1967) (prepared statement of Prof. G. Robert Blakely, Notre Dame Law School) [hereinafter cited as Hearings].
As an alternative, Professor Blakely suggested that the fourteenth amendment’s grant of privacy could be employed to legitimate Congress’ exercise of jurisdiction over wholly intrastate oral communications.
See
Hearings,
supra,
at 414, 442 & 464-65. Taking the more cautious route, Congress prohibited the interception of oral communications pursuant to both the fourteenth amendment (subparagraph (a)) and the commerce clause (subpara-graph (b)). The dual proscription against the interception of oral communications and the concomitant unusual statutory structuring, therefore, is explained by Congress’ desire to legislate under both constitutional grants of authority. As the Report states, subparagraph (a) embodies Congress’ attempt to legislate with regard to its authority under the fourteenth amendment:
The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications. The Supreme Court has indicated that Congress has broad power to protect certain rights under the Equal Protection Clause of the 14th amendment against private interference.
(United States v. Guest,
86 S.Ct. 1170, 383 U.S. 745 [16
L.Ed.2d 239] (1966) (concurring and dissenting opinions).) The right here at stake — the right of privacy — is a right arising under certain provisions of the Bill of Rights and the due process clause of the 14th amendment. Although the broad prohibitions of subparagraph (a) could, for example, be constitutionally applied to the unlawful interception of oral communications by persons acting under color of State or Federal law, see
Katzenbach v. Morgan,
86 S.Ct. 1717, 384 U.S. 641 [16 L.Ed.2d 828] (1966), the application of the paragraph to other circumstances could in some cases lead to a constitutional challenge that can be avoided by a clear statutory specification of an alternative constitutional basis for the prohibition.
Report,
supra,
at 2180.
In order to “create an essentially comprehensive ban on the interception of oral communications,”
id.
at 2181, however, Congress “included subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause and other provisions of the Constitution....”
Id.
at 2180. Accordingly, subparagraphs (b)(i) through (b)(iv) delineate four situations where the commerce clause is implicated and federal jurisdiction is conferred.
Pages 2180-81 of the Report, discussing Congress’ jurisdictional authority for sub-paragraphs (i)-(iv),
provide further support for the government’s construction. All four subparagraphs are clearly enacted pursuant to the commerce clause. Only subparagraph (ii), however, fails to expressly require a connection to “interstate or foreign commerce.” Report,
supra,
at 2181. Rather, like subparagraph (v), where Congress retains exclusive territorial jurisdiction, “[s]ubparagraph (ii) is intended to be a
complete
prohibition against the use of [radio] devices for the interception of oral communications.”
Id.
at 2181 (emphasis added). Indeed, subparagraph (ii)’s prohibition applies to
“any
interception through the use of a device which transmits communications by radio or which interferes with the transmission of radio communications.”
Id.
(emphasis added).
Moreover, in the text of the statute itself, of those subparagraphs enacted pursuant to the commerce clause, only subpar-agraphs (i) and (ii) make no mention of a necessary connection to interstate or foreign commerce. The omission in subpara-graph (i) is apparently explained by the
complete jurisdiction Congress retains with respect to
wire
communications.
See Weiss,
308 U.S. at 327, 60 S.Ct. at 271. The omission in subparagraph (ii), however, is inexplicable if Congress did not similarly intend to exercise complete jurisdiction over all radio broadcasts pursuant to
Fisher’s Blend Station
and
Nelson Brothers Bond & Mortgage Company.
We note the Fourth Circuit’s suggestion in
United States v. Duncan,
598 F.2d 839 (4th Cir.),
cert. denied,
444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979), and agree that “[sjubsection (ii) of § 2511(l)(b) prohibits the interception of oral communications through the use of a radio transmitter. Congress indisputably has the power to regulate all use of radio transmission equipment. [Citing
Nelson Bros. Bond & Mortgage
Co.]”
Duncan,
598 F.2d at 854 n. 11.
That this interpretation was the one Congress intended is evidenced by the testimony of Attorney General Ramsey Clark at the hearings on section 2511:
Senator LONG. General, you mentioned in your statement that the Federal Government had the plenary authority in eavesdropping and wiretapping legislation. What about the use of bugs and electronic gadgets where they are not used in interstate commerce?
General CLARK. [I]n section 2511(a)(2) [now § 2511(l)(b)(ii) ], we have reached radio transmission, which also clearly involves the commerce power of the Federal Government.
Hearings,
supra,
at 50-51.
We therefore find that there was a sufficient factual basis to find defendants in violation of section 2511(l)(b)(ii).
IV.
Section 2511(l)(c)
Resolution of the above issue is disposi-tive of the dismissal of the 2511(l)(c) violation. Subparagraph (c) is violated when a person “willfully discloses, or endeavors to disclose, to any other person, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication
in violation of this subsection.”
18 U.S.C. § 2511(l)(c) (emphasis added).
The district court found no underlying violation of subsection (1) so it dismissed the subparagraph (c) violation. As stated above, however, we find defendants in violation of subparagraph (b)(ii), therefore, as the government asserts, it is entitled to allege additional facts to show that the communication was disclosed to another person. Although defendants argue to the contrary, the stipulation of facts was “entered into solely for the purpose of these motions [to dismiss] and is not to be a statement of stipulated facts for the purpose of trial or any other purpose.” Settled Statement of Facts re: Defendants’ Motion to Dismiss at 1.
Accordingly, we remand the section 2511(l)(c) violation to the district court in order to ascertain whether defendants “willfully disclose[d], or endeavor[ed] to disclose, to any other person,” the contents of the unlawfully intercepted communications.
REVERSED and REMANDED.