In the
Matter of ASSOCIATED STUDENTS OF THE UNIVERSITY OF ARIZONA (ASUA), COMPLAINANT v.
AMERICAN
TELEPHONE & TELEGRAPH CO. (A.T.&T.), DEFENDANT
FEDERAL COMMUNICATIONS COMMISSION
43 F.C.C.2d 197
RELEASE-NUMBER: FCC 73-1018
October 11, 1973 Released
Adopted October 3, 1973
JUDGES:
BY THE COMMISSION: CHAIRMAN BURCH ABSTAINING
FROM VOTING; COMMISSIONER ROBERT E. LEE ABSENT; COMMISSIONER
JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*197] 1. The
Commission has before it for consideration a formal complaint filed on February
5, 1973 pursuant to Section 208 of the Act by the Associated Students of the
University of Arizona (hereinafter "ASUA") against the American
Telephone and Telegraph Company (hereinafter "AT&T"). ASUA
is an organized association of approximately 28,000 students at the University
of Arizona in Tucson, Arizona which appropriates over $150,000 yearly from
student fees to provide various services for its student members. ASUA's
complaint concerns ASUA's request for interstate Wide Area Telecommunications Service
(WATS), as offered in AT&T's Tariff F.C.C. No. 259, and AT&T's refusal
to provide WATS service for ASUA's use. ASUA requested WATS service so
that it could make WATS available for use by its student members.
AT&T contends in its responsive pleading that the provision of WATS service
to ASUA is precluded by Section 2.2.1 of AT&T's Tariff F.C.C. No. 259 which
provides:
USE OF SERVICE BY THE CUSTOMER
The service is provided only for
communications in which the customer has a direct interest and shall not be
used for any purpose for which a payment or other compensation shall be
received by him from any other person, firm or corporation for such use, or in
the collection, transmission or delivery of any communication for others.
This prohibition shall not apply to
a customer who is engaged as a communications common carrier in a public
telegram message business.
AT&T alleges that the personal
use of WATS service by the student members of ASUA would be violative of the
above-quoted WATS tariff provision since (a) ASUA would not have a "direct
interest" in the personal communications of its student members and (b)
the service would be used by ASUA for the transmission of communications for
others for which ASUA would recover compensation, i.e., for [*198]
the transmission of personal student communications and not for the
transmission of communications relating to ASUA's functions. ASUA
contends that (a) it has the required "direct interest" in the
communications of its student members since ASUA exists both to control and to
finance student activities at the University of Arizona and that (b) WATS
service would not be used by ASUA for the transmission of communications for
others since only ASUA's student members would be permitted to use the WATS
service.
2. By letter, dated June 8,
1973, we requested additional information from ASUA relating to how ASUA
operates "both to control and to finance student activities at the
University of Arizona" (emphasis added) and relating to how ASUA has control
over student telephone calls. ASUA responded on July 20, 1973, submitting
information regarding the history of ASUA, the services offered to students by
ASUA, ASUA's financing, its governing structure, and the activities of its
student senate. Upon due consideration of all of the information
submitted by ASUA, the contentions of both parties, and the presently effective
tariff language of Section 2.2.1 of AT&T's Tariff F.C.C. No. 259 (Paragraph
1), we conclude that AT&T's provision of WATS service to ASUA as the customer
of AT&T for use by ASUA's student members would be violative of the
language appearing in Section 2.2.1 with particular reference to the provision
that "(the) service is provided only for communications in which the
customer has a direct interest...." Notwithstanding the fact that ASUA
appears to have a legitimate interest in the amounts students must pay for
telephone calls, just as it has a similar interest regarding how much its
students pay for housing, we do not see how this general concern of ASUA about
the financial welfare of its student members can be reasonably interpreted as
satisfying the "direct interest" requirement of Section 2.2.1.
We arrive at this conclusion because the only reasonable interpretation of the
tariff language, in our view, is that each WATS customer must have an interest
in the content of each of the communications made over the WATS line and not
merely in the amount of the charges therefore. Under the facts and
circumstances before us herein we fail to see any relationship between ASUA's
legitimate interest regarding the level of charges for student telephone calls
and the content of each of the personal telephone calls that ASUA's student
members might place over the WATS line. However, we realize that there could
be occasions where the content of some student telephone calls placed over the
WATS line might actually relate to ASUA's functions. In regard to those
occasions, ASUA still would not have the required "direct interest"
because in order to claim a "direct interest" ASUA must have an
interest that relates to the content of all of the telephone calls placed over
the WATS line, not an interest which arises by chance in only a few of the
student telephone calls placed over the WATS line. Although the tariff
provision applicable in this matter is not a model of clarity, it appears to us
to be incapable of being reasonably construed as ASUA desires.
Accordingly, since the tariff is binding upon the carrier and customer alike
until changed either upon the initiative of the carrier or by an order of this
Commission after opportunity for a hearing, or by an order of a court of
competent jurisdiction, it follows [*199] that we must sustain
AT&T's decision not to provide WATS service to ASUA for the purposes sought
by it.
3. However, our decision is
not to be interpreted as approving the structure of the present WATS service
offering of AT&T or as finding the tariff provision in question to be just,
reasonable or non-discriminatory. Our decision merely holds that under
the present language of AT&T's WATS tariff ASUA has not shown that it is
entitled to WATS service if ASUA intends to make such service available for use
by its student members for their own personal calls. We have designated
for hearing in the latter stages of Docket No. 19129 questions concerning the
lawfulness of the interstate WATS. We believe that it would be
appropriate that this proceeding give consideration to the reasonableness of
the existing restrictive language in the WATS tariff. Accordingly, we
direct the Trial Staff in Docket No. 19129 to give consideration to such matter
in connection with further proceedings in that case.
4. In view of the foregoing,
IT IS ORDERED, That ASUA's complaint IS, HEREBY, DISMISSED.
5. IT IS FURTHER ORDERED, That
the questions raised in this complaint are referred to the Trial Staff of the
Common Carrier Bureau in Docket No. 19129 for such action as may be appropriate
in the further stages of the proceedings in that case.
FEDERAL
COMMUNICATIONS COMMISSION, VINCENT J. MULLINS, Acting Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
The "Associated Students of the
University of Arizona" (ASUA) is a bona fide association of 28,000 named individuals
who support an annual budget of $150,000. As such, it is entitled to and
has applied for, "WATS" service from AT&T. The company has
refused to comply with its tariff. The Commission has refused to provide
the Association with the relief it seeks in the formal complaint before
us. The reasons? It boils down to the typical child's response:
"just because, that's why."
WATS (or "Wide Area
Telecommunications Service") is a telephone service Bell offers customers
with heavy long distance traffic. Rather than pay for each call
separately, a WATS customer pays a flat fee (say $2,000 or $3,000 a month) for
the privilege of making as many long distance calls as it wishes over a single
line. (If a customer has a need to make more than one long distance call
at a time, it must either pay for additional WATS lines or pay for additional
calls on a call-by-call basis.) "WATS" generally refers to an outward
service -- that is, the ability to make calls from the customer's phones.
Bell also offers an "inward WATS" service -- the ability to make
calls to the customer's phones at no cost to the caller. This service is
what makes possible the increasingly popular "800" (toll free)
numbers advertised by many hotels, other firms, and government agencies.
(See, N. Johnson, "We Need a Free Phone Link to Our Government,"
Parade, Sept. 24, 1972, p. 18.) What is before us in this case is "outward
WATS."
[*200] AT&T's FCC
Tariff No. 259, Section 2.2.1, provides:
The service is provided only for communications
in which the customer has a direct interest and shall not be used for any
purpose for which a payment or other compensation shall be received by him from
any other person, firm or corporation for such use, or in the collection,
transmission or delivery of any communication for others.
This prohibition shall not apply to
a customer who is engaged as a communications common carrier in a public
telegram message business.
It is
noteworthy that the FCC cannot begin to allege that the ASUA request for
service in any way conflicts with the tariff's prohibitions.
The Tariff provides -- quite
properly under the current telephone pricing and revenue collection scheme --
that a WATS customer cannot sell access to its WATS line. ASUA does not
propose to sell access to its WATS line, either to members of the Association
or to outsiders. The tariff prohibits WATS being used "in the
collection, transmission or delivery of any communication for others."
Putting aside the fact that the tariff then goes on to permit such use for a
particular class of corporate customer in instances that serve Bell's interest,
we are left with the fact that ASUA fully complies with the tariff in this
respect as well.
The only provision that AT&T and
the FCC can strain to find remotely applicable -- and it is not a prohibition,
but throw-away language in a tariff clause the Commission acknowledges is
"not a model of clarity" -- is the "direct interest"
language. The WATS tariff provides that the service can only be provided
for "communications in which the customer has a direct interest."
In my own view, ASUA is qualified
for WATS service under any reasonable interpretation of the "direct
interest" language. But I'll come to that in a moment. For
now, I wish simply to note that the most reasonable interpretation of the
language -- under all standard canons of construction of the legal language
found in legislation, contracts, wills (and tariffs) -- is that "direct
interest" modifies, refers to, and is modified by that language which
follows it in the very same sentence in which it is to be found. That is,
the tariff is designed to exclude those uses involving the delivery of messages
for others, or the collection of money for the use of the WATS line. Such
messages would be communications in which the customer would not have a
"direct interest." Presumably, however, any communication from an
employee, member, etc., of a "customer" would, by definition, be a
communication in which the customer does have a direct interest. When (1)
members of the student association, the customer, (2) use a WATS line of the
association, which they have paid for, (3) for the purpose for which the
association acquired the line, that is, in my view, a use in which the
association has a "direct interest."
Putting aside the possible hostility
to college students generally -- which would be the most easily understood
basis for today's decision -- when the ATT/FCC gets around to trying to explain
its decision it falls into the corporate mind set that affects so much of its
view of the world.
Corporations are one kind of WATS
customers. Corporations have a general interest in money making as their
principal purpose. That's [*201] altogether
appropriate. If money making is a telephone customer's principal purpose,
then its "direct interest" in calls made on its WATS line could be
said to turn on whether or not the call contributes to the firm's profit.
(I emphasize could because I think a corporation's interest in its WATS line is
as subject to its definition of interest as a student association's interest in
its WATS line is subject to the association's definition. Thus, offering
all employees access to a WATS line in the off-peak evening hours for personal
calls might well serve a corporate purpose of personnel relations, morale and
recruitment. This would be sufficient, in my view, to give it an adequate
"direct interest" in those "personal" calls -- even under
the standard ATT/FCC interpretation of "direct interest.")
But whatever may be said of corporations,
they are not the only customers for WATS service. And profit making is
not the only customer purpose giving rise to a "direct interest."
An association may exist to get
information to its members. The National Farmers Organization, for
example, has inward and outward WATS lines that are used by the members for
other than what might be thought of as "association business" in the
most limited sense. And yet surely the NFO has an adequate "direct
interest" in those calls.
Professional associations, churches,
and fraternal organizations would be in a similar position. An
organization devoted to counseling by telephone (such as Alcoholics Anonymous)
might very well use a WATS line for nothing but "personal calls" in
which the association had a "direct interest." Groups like Foster
Parents might have programs devoted to regular telephoning for no purpose other
than personal contact. Some organizations regularly call the aged and
infirm to visit, and check on their well being.
None of these telephone customers
would have a corporate, profit-making purpose in the use of their WATS line,
yet all would clearly qualify under the tariff as I read it.
Nor can one object to the mere
number of students involved -- 28,000. While a significant number, it is
much smaller than the 200 million who are free to use all "800"
inward WATS numbers, and the number of members of many national associations,
or employees in corporations with access to WATS lines. They are, at
least, clearly designated and identifiable. The ASUA WATS line will not
be available to anyone who walks in off the street to use it. Its use
will be limited to a finite number of known, dues-paying members of the
association -- an association whose purposes give it a "direct
interest" in the long distance calls of its members. Its interest,
and its members' interest, is not merely what is paid for those calls -- though
I would see nothing wrong with such an interest, it being the principal
corporate motive for using WATS. The interest is in maintaining
relationships with friends, loved ones, and parents -- both foster and natural
-- that are essential to productive attitudes toward education when
artificially separated by distance during one's college years.
The Commission concludes that
"since the tariff is binding... until changed... by an order of this
Commission... it follows [*202] that we must sustain AT&T's
decision..." Surely such vacuous reasoning need be no more than repeated
to be refuted.
The telephone company has been
perpetually embarrassed by its unending -- and losing -- battle with young
people who seek to use the services it offers. See, e.g., Simon
Winchester, "Phone Phreaks Hold a Convention," reprinted from the
Manchester Guardian in Washington Post, Oct. 7, 1973, p. G-1. Some of
these youthful innovations have been downright criminal -- though also of a
technical ingenuity far surpassing the capabilities of Bell Labs. That
they have often been accomplished by youngsters who have not yet entered high
school, let alone college, must give us pause -- both as to the capacity of
Bell's professionals, and also as to the young people's future. Bell,
quite legitimately, objects to providing them telephone service at no
charge. But the college students before us are no pranksters. They
have fairly caught Bell in its own tariff; they do not want to tamper with the
equipment, they just want to make legitimate use of it -- and pay the full
posted price for the privilege. I think the Association is entitled to
its WATS line, or lines, and that the telephone company's refusal to accept its
$30,000 to $150,000 a year is but another example of inexplicable company
intransigence, to be included in the next edition of "For Whom Does Bell
Toil?" Reprinted at, In Re Petition of American Telephone and Telegraph
Company, 26 F.C.C.2d 523, 540 (1970).
Accordingly, I dissent.