Appellant Southern Bell Telephone and Telegraph Company (Southern Bell), appeals from two orders issued by the District Court of the Southern District of Florida pursuant to F.R.Crim.P. 41,1 requiring Southern Bell to furnish the Drug Enforcement Administration of the United States (DEA) all information, facilities and technical assistance necessary to install and operate a Pen Register/Touch Tone Decoder (pen register).2 Because the orders have been complied with and the Decoder searches have been finished, we dismiss this appeal as moot.

On September 4, 1974, the District Court issued two orders,3 based on the applications of an agent of the DEA, authorizing the installation of a pen register on the telephone lines of two specific subscribers4 for a period of 30 days or until the information sought was obtained, whichever was the first to occur. The orders also required Southern Bell to "furnish the Drug Enforcement Administration all information, facilities, and technical assistance necessary to conduct the operation of the pen register/touch-tone decoder unobstrusively and with a minimum of interference with the service the subscriber may be receiving."

On September 9, 1974, the United States moved for an order to show cause why two officers of Southern Bell should not be held in contempt for their refusal to give the Government technical assistance in the installation of the pen register, as they were required to do by the September 4 orders.5 In response to the District Court's order to show cause, Southern Bell filed a motion to reconsider or withdraw its previous orders or in the alternative to eliminate Southern Bell from the requirements of the orders. In support of its motion, Southern Bell argued (i) that if the orders had been issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520, the orders were defective because they did not contain the required authorization from the Attorney General;6 (ii) that if the orders were issued pursuant to F.R.Crim.P. 41, they were defective because that Rule does not authorize the Court to direct persons other than "a civil officer of the United States authorized to enforce or assist in enforcing any law thereof" to carry out the provisions and requirements of a search warrant;7 (iii) that if the orders were issued pursuant to F.R.Crim.P. 41, they were further defective in that they did not relate to search for or seizure of "property" within the meaning of Rule 41(h)8 and (iv) that the orders were not required to be executed within 10 days as required by Rule 41(c).9

Upon consideration of the record and Southern Bell's motion and accompanying memorandum of law, the District Court entered an order dated September 13 finding that Southern Bell should not be held in contempt. The order also modified the September 4 order in several respects. First, it stated that the Court's authority to enter the September 4 order was not founded upon Title III, but upon F.R.Crim.P. 41, which authorizes a Federal Judge to issue search warrants. Second, it shortened the period of the order to the 10 days allowed by Rule 41(c). Finally, the order stated that, since "the Court is authorized to order the installation of a pen register (under F.R.Crim.P. 41), the Telephone Company's concern for its exposure to civil liability should be alleviated. With the removal of this obstacle and in light of their past cooperation, the Court has no reason to believe that the company will not furnish the requested technical assistance which will permit the Government agents to execute the court order."

Although Southern Bell promptly complied with the District Court order, it filed a motion to stay and a motion for clarification of the September 13 order. We denied the motion to stay, but granted the motion for clarification and remanded the case to the District Court, without ruling on the jurisdiction of the District Court to order a pen register installation under F.R.Crim.P. 41 and without ruling on the jurisdiction of the District Court to order the assistance of Southern Bell in installing and operating such a pen register under Rule 41. Upon remand, the District Court stated that the September 13 order relieved Southern Bell of the obligation to assist the DEA in the installation of the pen register, since the telephone company was placed in the same position as any other citizen whose premises the Government seeks to search pursuant to a search warrant.10

After this appeal was filed by Southern Bell to resolve the legal issues underlying the ordering of the use of pen registers by District Courts pursuant to F.R.Crim.P. 41, the orders were renewed and extended for ten day periods on three different occasions, and each time, Southern Bell complied with the orders. The orders have since expired, however, and Southern Bell is not currently operating under any similar orders. With the case in this posture, any opinion we would render would be a mere advisory opinion, since we conclude that this case is moot.

In DeFunis v. Odegaard, 1974, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705-06, 40 L. Ed. 2d 164, 168-69, the Supreme Court stated that the starting point for determining whether a case is moot

"is the familiar proposition that 'federal courts are without power to decide questions that cannot affect the rights of litigants in this case before them.' North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971). The inability of the federal judiciary 'to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964); see also Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Sibron v. New York, 392 U.S. 40, 50 n. 8, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

* * * (u)nder Art. III '(e)ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.' North Carolina v. Rice, supra, at 246, 30 L. Ed. 2d 413."

In recent years, the Fifth Circuit has on several occasions held causes moot for example,

"when the allegedly offending action was rescinded, see Barron v. Bellairs, 5 Cir., 496 F.2d 1187 (1974) (new Georgia welfare statute enacted prior to entry of injunctive relief), when the proof failed to show the complaining party was or would be injured by the challenged actions of the defendant, see National Lawyers Guild v. Board of Regents, 5 Cir., 490 F.2d 97 (injunction requiring use of college facility for meeting held moot where meeting date set had long gone by and no showing was made that required co-sponsorship by college dean had been sought or refused); and Merkey v. Board of Regents, 5 Cir., 493 F.2d 790 (where plaintiff was a non-student at the time of appeal and no student was shown to seek recognition for a college club, the action demanding recognition was moot Judge Goldberg dissented), and when the matter in controversy has become passe, see De Simone v. Lindford, 5 Cir., 494 F.2d 1186 (request for injunctive relief pending completion of administrative review held moot upon final agency decision); United States Servicemen's Fund v. Killeen Independent School District, 5 Cir., 489 F.2d 693 (right to use a high school auditorium for a 'Counter-USO Show' by Viet Nam war protesters held moot after the conflict ended); and Hollon v. Mathis Independent School District, 5 Cir., 491 F.2d 92 (injunction suspending a school rule against married athletes mooted by plaintiff's graduation). Reference to these holdings and the authorities they cite suffices for articulation of the underlying legal principles."

Gooden v. Mississippi State University, 5 Cir. 1974, 499 F.2d 441, 443-44.

In the case now before the Court, the matter in controversy has become passe, because Southern Bell has complied with all the orders of the District Court and all the orders have now expired. Their controversy is not a live one at this time, so we cannot resolve this matter or give effective relief to either party.

Neither does this case fall within the limited exception to the mootness doctrine of cases which are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 1911, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310, 316.11 That exception has been restricted by the Supreme Court "to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 1975, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350, 353. See also Sosna v. Iowa, 1975, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532.

The case at bar does not meet the Southern Pacific/Weinstein test, for even should Southern Bell be subject to similar orders in the future (a contingency which may or may not occur), we have concluded that full and effective appellate review of the order will be possible prior to the cessation or expiration of the challenged District Court order. Here, as in DeFunis,12 where this exception was also urged by the parties, there is no reason to suppose that the issues raised by Southern Bell will in the future evade review, provided timely steps are taken in the District Court and in this Court and, equally important, provided this Court recognizes its duty to take available steps to assure review. In the past, we have denied Southern Bell's motions for stays of the District Court's orders, out of an experience-based judgment that interlocutory appeals13 or interim stays often do not serve to advance the case. However, without criticizing our previous denials of motions to stay, this abortive case serves to convince us that special consideration should be given by us and by the District Court in future similar cases.

As the use of the pen register as a surveillance tool has grown, and as courts in different jurisdictions have responded with differing voices to the legal issues posed by its use,14 we have become increasingly aware that we and the District Court in acting on stays pending review must still the clamor in the Fifth Circuit by taking the steps necessary in the future to make sure that the controversy reaches us while it is still alive. Thus, in any future case raising these issues, absent a substantial representation by the Government that delay would frustrate the Government's legitimate investigative efforts, the District Court should seriously consider a stay to permit review on an emergency basis by this Court. At the same time, we are acutely aware of our own responsibilities to expedite the appeal of any future case raising these issues while a stay order is in effect.

The law cannot ignore indefinitely the plight of a party in Southern Bell's precarious situation damned by potential civil liability if it does comply with the District Court's order and damned by a possible contempt citation if it does not. The mere possibility that Southern Bell will be under a similar order in the future, however, will not justify our issuance of what would be, after all, merely an advisory opinion. Our resolution of the legal issues raised here must await some future date, when the issues reach us embodied in the facts of a living controversy. For, much as we would like to free Southern Bell from the uncertainties which confront it, neither the Constitution nor common sense will allow us to resolve a dispute which has temporarily, at least resolved itself.

DISMISSED AS MOOT.