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In the Matter of AMENDMENT OF PART 64 OF THE COMMISSION'S RULES RELATING TO

USE OF RECORDING DEVICES BY TELEPHONE COMPANIES

Docket No. 17152

FEDERAL COMMUNICATIONS COMMISSION

6 F.C.C.2d 587 (1967)

RELEASE-NUMBER: FCC 67-127

January 30, 1967 Adopted


BY THE COMMISSION: COMMISSIONER COX CONCURRING AND ISSUING A STATEMENT; COMMISSIONER LOEVINGER DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER WADSWORTH JOINS; COMMISSIONER JOHNSON CONCURRING AND ISSUING AN OPINION.

OPINION:

 [*587]  1.  Notice is hereby given of proposed rulemaking in the above-entitled matter.

2.  The Commission proposes in this rulemaking to prohibit any telephone company, subject to its jurisdiction, from using any recording devices to record interstate or foreign telephone conversations between members of the public, on the one hand, and officers, agents, or employees of the telephone companies, on the other hand, without the use of the "beep" tone.

3.  Under the Commission's decision and orders, In Use of Recording Devices in Connection With Telephone Service, docket 6787, 11 F.C.C. 1033; 12 F.C.C. 1005, 1008, the Commission prescribed the substance of tariff regulations that would permit the use of customer-provided telephone recording devices in connection with interstate and foreign message toll telephone conversation subject to certain specified conditions, including the "beep" tone, intended to insure that all parties to a telephone conversation have adequate notification that a telephone recording device is being used.  These prescribed tariff regulations are now in effect and have been since 1948.

4.  The tariff regulations that have been filed pursuant to the aforesaid decision of the Commission are specifically applicable to "customer-provided" recording devices and are couched in terms of an exception to the "foreign attachment" prohibitions contained in the tariffs.  Such tariff provisions do not literally apply to the use of recording devices by the telephone companies themselves.

5.  The Commission is informed that certain telephone companies, in practice, impose upon themselves the same notice requirements on telephone calls to or from the telephone company that are imposed under the tariffs upon customers in their use of customer-provided recording devices.  Other telephone companies, we are informed, do not follow such practice and engage in the practice of recording telephone  [*588] calls made to or from the telephone company without providing any notice to the other party that a recording device is being used.

6.  We believe that the principles that governed our decision in 1947, and our orders implementing that decision, apply with equal force to the recording of telephone conversations by the telephone companies when they are the called or calling party to a telephone conversation.  It appears, therefore, that the same rules and practices that are applicable to the general public in their use of recording devices should apply equally to the telephone companies.

7.  In view of the foregoing, it is proposed to amend part 64 of the rules as set forth in the attached appendix.

8.  This notice of proposed rulemaking is issued under authority of sections 4(i), 201(b), and 202(a) of the Communications Act of 1934, as amended, and in implementation of section 605 of said act.

9.  Pursuant to applicable procedures set forth in section 1.415 of the Commission's rules, interested persons may file comments on or before March 21, 1967, and reply comments on or before April 10, 1967.  All relevant and timely comments and reply comments will be considered by the Commission before a final action is taken in this proceeding.  In reaching its decision in this proceeding, the Commission may also take into account other relevant information before it, in addition to the specific comments invited by this notice.

10.  In accordance with the provisions of section 1.419 of the Commission's rules, an original and 14 copies of all statements or briefs shall be furnished to the Commission.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


[*589]  CONCURRING STATEMENT OF COMMISSIONER KENNETH A. COX

Commissioner Loveinger's dissent is in error in its premise that there is now no rule or law which proscribes the use of telephone recording devices without the use of a "beep" tone.  The tariffs filed by the carriers with this Commission require, as a condition of service covered by those tariffs, that no subscriber may use a recording device in connection with telephone service without the "beep" tone.  It is the scheme and intent of the provisions of the Communications Act that the carriers have the basic responsibility to render service in accordance with the terms and conditions of their tariffs and to insure that their customers comply with such terms and conditions.  These tariffs, so long as they are in effect, have the force of law as to both the telephone users and the carriers.  Failure on the part of users to comply with the terms of the tariff in this respect subjects them to possible loss of service, and to injunctive action pursuant to sections 401(b) and 411(a) of the Communications Act.  (See Ambassador, Inc. v. United States, 325 U.S. 317 (1945).) Failure on the part of a carrier to enforce its tariffs with regard to the use by its customers of telephone recording devices could subject it to the civil penalties provided for in section 203(e) of the act, as well as to the criminal penalties of section 502 of the act.

The course proposed by the dissent -- that is, the adoption of a rule imposing a direct prohibition of this practice as to telephone users -- would be contrary to the basic policy adopted by Congress in the Communications Act, in that it would tend to shift the burden of tariff enforcement from the carriers where it was intended to rest and to impose that burden and responsibility upon the Commission.  Clearly, the carriers, who have day-to-day control of their facilities and are in much closer contact with the users than this Commission, are in a far better position to detect violations of, and secure compliance with, their tariffs.  In addition, we are simply not staffed for such an enforcement role, and I think the sort of rule Commissioner Loevinger proposes would be a dead letter and of no real effect.  In fact, it might be interpreted by the carriers as relieving them of some of their responsibility for enforcing their tariffs.

The dissent is also in error in stating that, as a practical matter, the proposed rule will operate only on one single, relatively small telephone company.  Presumably he is referring to the General Telephone System, since it was George H. Gage, an officer in the General System, who testified on September 16, 1966, before the Subcommittee on Administrative Practices and Procedures of the Senate Committee on the Judiciary, that companies in the General Telephone System do not use the "beep" tone on recorded telephone calls between those companies and members of the public.

This is not a "single, relatively small company." There are more than 30 domestic telephone operating companies in the General System, serving more than 6,600,000 telephones in portions of 32 States, and this system comprises the largest group of non-Bell System telephone companies in the United States.  Moreover, there are more than 2,200 independent, non-Bell System companies, in addition to [*590]  those in the General Telephone System, which engage or participate in interstate or foreign message toll telephone service.  All of them would be affected by the proposed rule.  These additional independent telephone companies serve more than 8 million telephones throughout the country.  In addition, the rule would, of course, apply to the Bell System, so as to require what the latter now does voluntarily -- but could change or abandon tomorrow in the absence of the proposed rule.

I, therefore, disagree with the statement that it is pointless to propose a rule which will bring about uniformity of practice within the entire telephone industry and which would impose the same requirements upon the telephone industry that now apply to members of the public.  In that connection, I do not understand Commissioner Loevinger's statement that our action is confined to "an area in which there is not the slightest evidence of evil or abuse." I thought that in his opinion any recording of telephone conversations without the use of a warning tone is improper.  The basic theory underlying all our activity in this field is that if one party to a telephone conversation wishes to record it, some  automatic and continuing notice of this fact should be given to the other party.  I think this is equally true when the party making the recording is a telephone company employee, and regardless of the purpose for which the recording is made.

I, therefore, concur in the notice as issued.


CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON n1

n1 I am in substantial agreement with many of the views of Commissioner Loevinger on this matter, although I express no opinion regarding his proposed rule.

(Re Proposed Rule on the Use of Recording Devices by Telephone Companies)

The attention of the entire Nation currently is focused on problems of the invasion of privacy by electronic means.  President Johnson, in his 1967 state of the Union message, has just urged that we outlaw all "wiretapping, electronic 'bugging,' and 'snooping.'" Congressional interest has been intense.  n2 The subject has been treated at length in the literature.  n3 The monitoring and recording of telephone conversations without consent is but one aspect of these vital problems.

n2 See, e.g., hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st and 2d sess. (1965-66), and subsequent hearings.

n3 One of the more thoughtful current treatments is that of Columbia Law School Prof.  Alan F. Westin, "Science, Privacy, and Freedom: Issues and Proposals for the 1970's," 66 Colum. L. Rev. 1003, 1206 (1966) (with a third party yet to come).

As the governmental agency which ought to be the most concerned with the integrity of our country's electronic communications, the FCC both can and should play an important role in finding solutions.  As much as I might wish it otherwise, however, I cannot report the  [*592]  detection of observable FCC stirrings in this direction.  n4 I do not minimize the difficulties of devising meaningful standards and methods of enforcement.  But even the appointment of an FCC advisory committee, or efforts at proposals for new legislation, would be a substantial gain over our current contributions.

n4 As recently as Sept. 15, 1966, an FCC spokesman conceded to Congress that, "The Commission's numerous other tasks and problems, many of an urgent nature and central to the basic mission of the Commission, and the limited resources and manpower of the Commission, simply do not permit an extensive effort in this field at this time." (Transcript of hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 2d sess., 1941 (1966) (remarks of Commissioner Lee Loevinger).)

I have no objection to the apparent purpose of the substantive rule being proposed.  Telephone tariffs now prohibit subscribers from recording telephone conversations without the use of the familiar "beep" tone.  Such tariffs are not applicable to the recording of conversations by employees of the telephone companies themselves.  This Commission regulation would simply apply the same prohibitions to telephone companies as the companies' tariffs now apply to subscribers.  Fair enough.  And we will thereby have removed a flyspeck from the murky national problem of invasion of privacy.  But I am concerned lest the Commission's self-satisfied complacency in having "done something" may further stifle, rather than support, the prospects for meaningful FCC participation in lasting solutions.  My hope is that time and this Commission may prove me wrong.


DISSENTING STATEMENT OF COMMISSIONER LEE LOEVINGER
(Re Proposed Rule on Recording Devices Used by Telephone Companies in Which Commissioner James J. Wadsworth Joins)

I dissent to the notice of proposed rulemaking proposing a rule which would require telephone companies to use a "beep" tone device when recording telephone conversations because the proposed rule is so inadequate as to be futile and quixotic.

The Commission now has a rule requiring telephone companies to include in their tariffs a provision forbidding the use of recording devices by customers unless the devices create a "beep" tone on the line to warn the participants that their conversation is being recorded, but the Commission rules do not forbid the practice.  These tariffs do not, by their terms, forbid such practices by the companies.  However, A.T. & T., which controls approximately 85 percent of all the telephones in this country -- and a considerably larger percentage of all those over which this Commission has direct jurisdiction -- has informed us that as a matter of practice it always uses such a "beep" tone device when recording telephone conversations.  Thus, as a practical matter, the rule now proposed is directed to and will affect the practice of only one company (and its affiliates) which operates a relatively small percentage of the telephones over which the Commission has jurisdiction.  There is no evidence whatever that there have been any abuses in the practice of this company.  There is not a scintilla of evidence that there is the slightest need for the proposed rule in its present form.

On the other hand, there is a considerable body of public material relating to the use of various types of recording devices by telephone  [*591] company customers.  If there are any abuses, or bad practices, in this field -- and there probably are -- it is by persons who will be wholly unaffected by the proposed rule.  If the Commission regards the recording of telephone conversations without the knowledge of one or both participants as an evil, and if it regards the use of "beep" tone devices as a remedy -- which it obviously does -- then it should directly and unequivocally forbid the evil and require the remedy within the scope of its jurisdiction.  This it now refuses to do.

No purpose would be served at this point in reviewing the arguments considered by the Commission as to whether it should seek to take more effective action in this matter or not.  However, I believe that simple candor to the public requires notice that the proposed rule would forbid the prohibited practice only in the most minute proportion of the situations in which it occurs, and in an area in which there is not the slightest evidence of evil or abuse.  In the area of general usage of telephone recording devices, there is no law or rule against recording and the Commission is now proposing to let the situation continue as it is without significant change.  I would vote to propose a rule which prohibited the recording of telephone conversations without use of a "beep" tone device within the scope of the Commission jurisdiction.  I cannot vote to propose a rule which will operate on one single, relatively small company that has not been shown to have engaged in any improper practices.

If the practice is improper, and if Commission action has any effect at all, the Commission should forbid the practice.  The action now proposed is a pointless gesture, unworthy of the dignity of Government action.


APPENDIX

Part 64, Miscellaneous Rules Relating to Common Carriers, is amended to add to add a new subpart E as follows:

  64.501 RECORDING OF TELEPHONE CONVERSATIONS WITH TELEPHONE COMPANIES.

No telephone common carrier, subject in whole or in part to the Communications Act of 1934, as amended, may use any recording device in connection with any interstate or foreign telephone conversation between any member of the public, on the one hand, and any officer, agent or other person acting for or employed by any such telephone common carrier, on the other hand, except under the following conditions:

(a) that such use shall be accompanied by adequate notice to all parties to the telephone conversation that the conversation is being recorded;

(b) that such notice shall be given by the use of an automatic tone warning device, which will automatically produce a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use;

(c) that the characteristics of the warning tone shall be the same as those specified in the orders of this Commission adopted by it, In Use of Recording Devices In Connection With Telephone Service, docket 6787, 11 F.C.C. 1033 (1947); 12 F.C.C. 1005 (November 26, 1947); 12 F.C.C. 1008 (May 20, 1948);

(d) that no recording device shall be used unless it can be physically connected to and disconnected from the telephone line or switched on and off.


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