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.