simply be switched off when its operation is not desired. Thus, there is no reason why a recording device which can be used in connection with an interstate or foreign telephone call must be used in connection with an intrastate call; on the contrary, users can easily limit the employment of recording devices to their interstate and foreign calls. Accordingly, state and other local regulatory authorities remain entirely free to deal as they see fit with the use of recording devices on intrastate calls. Whether, as the Bell System suggests, a user with a recording device will employ it on intrastate, as well as interstate and foreign calls, obviously depends on the position taken in the matter by the appropriate local authorities. It may be commented further, however, that the Bell System argument ignores the real consideration that interstate and foreign message toll telephone service requires the use of facilities that are not "exclusively interstate." The service necessarily involves all the facilities, charges, classifications, practices, services, and regulations used in the rendition of the service, and regulation of such service must be able to deal with all or any of the matters so involved if it is to be effective. This is clearly the purport of the comprehensive common carrier provisions of the Communications Act. See Matter of Hotel Surcharges, decided December 10, 1943, F.C.C. Docket No. 6255 (52 P.U.R. (N.S.) 141 (1943); Ambassador, Inc. v. United States, 325 U.S. 317.12 The relative percentages of interstate and intrastate telephone calls cited by the Bell System in its argument also tend to give a distorted picture. Of course, intrastate calls far predominate numerically, interstate toll calls being, in the year 1944, only 1.3 percent of all calls (exchange and toll) and 25.6 percent of all toll calls, according to Bell System estimates. But behind these percentages were 359 million interstate and foreign toll messages. RECORDING DEVICES AND THE QUALITY OF TELEPHONE SERVICE It is clear from the record that the use of recording devices is not detrimental to the quality of telephone service. The modern electronic recording device is so equipped as to cause no measurable drain on the telephone talking circuit and so as to prevent a short circuit or other trouble in the device from impairing telephone service. In the case, however, of recorders which are physically connected to the telephone circuit, it is necessary that the recorder be properly connected to the telephone line to protect against impairment of the telephone service. A faulty connection might reduce the efficiency of the circuit, thereby impairing transmission, or, being connected with the house current, impress on the circuit harmful voltages or currents which might be injurious to person or plant. The method of connection itself might cause trouble in the telephone circuit. Adequate connecting arrangements can be provided, however, and it is apparent from the record that the protection of the telephone service can be satisfactorily accomplished in the connection of recorders to the telephone lines. Although the Bell System specifically stated that it has no objection to a telephone user providing his own recording device, it does assert that since the connecting device is of primary importance to the telephone service and is a part of the telephone facilities, it is essential that it be furnished, installed, and maintained by the telephone companies, as are the rest of the telephone facilities. There was no disagreement on this point on the part of any of the parties. The Commission is of the opinion that the furnishing, installation, and maintenance of the necessary connecting device should be the responsibility of the telephone companies. This would mean that where a plug-in jack arrangement is to be used to connect the recorder to the telephone line, the jack installation should be furnished, installed, and maintained by the telephone companies. Where, however, an inductive recorder is to be used, there would appear to be no necessity for any equipment to be furnished, installed, or 13 The Commission can hardly believe that at this late date in the history of Federal regulation, the Bell System is seriously attempting to remove practically all its facilities from the jurisdiction of this Commission, but the logical result of the above test proposed by it. "facilities which are exclusively interstate." would do just that. For example, It would logically follow from the Bell System argument that even though a facility were essential for the rendition of interstate and foreign message toll telephone service, It could be freely abandoned with impunity under the Communications Act so long as it was not an "exclusively interstate" facility. But see Section 214 of the Act and Part 63 of the Rules and Regulations, governing discontinuances of service. maintained by the telephone companies. The inductive recorder should be so constructed that when used for telephone recordings, it would not interfere in any way with the operation of the telephone circuit. The matter of the engineering standards that should be established to assure against any such interference is one of the matters that should be considered at the engineering conference the Commission will hold, as hereinafter set forth, to consider what technical requirements should be imposed in connection with the use of telephone recording devices. One question raised by the recorder manufacturers is that sales demonstrations of their equipment to prospective customers would be hampered if they are required to have telephone company personnel make the connections of the equipment to the telephone line. This difficulty would, of course, not exist in the case of inductive recorders. As for the type involving a wire connection to the telephone line, we are of the opinion that it is more important to assure that such a connection be properly made to prevent interference to telephone service than that the sale demonstrations be made without hindrance. The telephone companies should, however, cooperate fully with the recorder organizations so that no unreasonable delays will occur in the connection of recorders for sales demonstrations, and the Commission will act promptly on any complaints against telephone companies in this respect. RECORDING DEVICES AND THE PRIVACY OF TELEPHONE SERVICE It has been previously observed that in this proceeding there has been no objection to the use of telephone recording devices as such. They have been recognized as being a modern and legitimate aid to government and commerce. The telephone companies have, however, emphasized the "right of privacy" in telephone communications, and urged that this "right" would be infringed by the use of telephone recorders without adequate notice to the parties that their conversation was being recorded. It has been stressed that in the interest of preservation of telephone privacy, the use of telephone recorders should be barred except where such notice is given. The recorder manufacturers, on the other hand, challenge the claim of the telephone companies to the existence of privacy in telephone conversations, pointing to the availability of extension telephones, party-line service, plug-in jacks, and monitoring devices, which make it possible for persons to listen in on a telephone conversation without the knowledge of the parties. The manufacturers contend that no form of notification of the use of telephone recorders is necessary, since recorders will in all probability be limited to legitimate Government and commercial use, and the users could be generally advised, through the medium of a general publicity program and information in the telephone directory, that recorders may be used. The manufacturers, however, would apparently have no objection to some kind of specific notice, although at least one, the Dictaphone Corporation, indicated that a requirement of a mechanical warning signal would be objectionable "as impairing the coherence of telephone conversations and unduly annoying the conversers." The Commission is of the opinion that the use of telephone recording devices should be permitted in connection with interstate and foreign message toll telephone service. These devices have been clearly shown on the record here as having a useful and legitimate place in the conduct of governmental and private business. The Commission is, however, keenly appreciative of the importance and desirability of privacy in telephone conversations. Such conversations should be free from any listening-in by others that is not done with the knowledge and authorization of the parties to the call, whether this be done by recording devices, extension telephones, monitoring devices, or any other means, and the Commission is prepared to take all steps within its authority to accomplish this objective. Accordingly, the Commission is firmly of the opinion that the use of telephone recording devices should be permitted only when measures are in effect to assure notification to the parties that their conversation is being recorded. 13 The telephone companies' answer to these instances is essentially that this is a matter of degree that "even though in some other cases privacy has had to be sacrificed to a limited extent in order to furnish economical and efficient service to large classes of telephone subscribers, that does not justify further and more serious infringements upon the privacy of telephone conversations for the benefit of a few." METHODS FOR NOTIFICATION OF USE OF TELEPHONE RECORDING DEVICES At the hearing, there were discussed several methods for notification of the parties to a telephone conversation that recording devices were being used. These were as follows: (1) Automatic Tone Warning. (2) Automatic Voice Announcement. (3) Operator Announcement Plan. These will be discussed in order. Automatic Tone Warning The The warning mechanism would operate whenever the recording device was being used, but it would superimpose on the telephone conversation a distinct recurring signal, such as musical notes, at regular intervals of, say, about 15 seconds.1 This signal should be loud enough to be clearly heard, but at the same time, the signal should not unduly interfere with the conversation. Bell System estimates that it would cost from $25 to $50 to manufacture this warning device. The Bell System argued that this warning was inadequate because the musical tone would not be self-explanatory and the general public could not be taught its significance. Automatic Voice Announcement Under this method, the automatic warning would be by a voice announcement made by a record. A musical tone would be transmitted over the circuit at intervals of about 15 seconds, followed immediately by an announcement: "This conversation is being recorded." The Bell System points out, by way of objection to this method, that the announcement must be loud enough to be heard, which means it would interrupt the conversation for the time it required, about 3 seconds. Even if the text of the announcement were shortened, there would be substantial interference with the telephone call, the call would probably be lengthened, and charges to the user for the call thus increased. Operator Announcement Plan Under this plan the recorder is connected with a special telephone line which terminates at a special telephone company operator position. All incoming and outgoing calls involving this special subscriber line would be handled by the operator at the special position. The special operator would complete all calls and make an announcement to the other party before the start of the conversation, that the special line is equipped wih a voice recorder which may be used to record the conversation. The Bell System argues that this plan is the "only reasonably certain and efficient arrangement to secure adequate notice to telephone users that their conversations may be recorded." It would appear to be possible for situations to occur where this plan, as elaborate as it is, might not result in a warning to the principal parties to the conversation, because one or the other, or both, were not on the line when the connection was first established. This might be the case, for example, on a station-to-station call initiated by others on behalf of either or both of the principal parties. This plan may be less certain in effect that the automatic warning recurring throughout the call. The operator announcement plan would also involve considerable expenditure for the installation and operation of additional subscriber lines and associated equipment for this special purpose. The additional operating cost to the customer for service under the plan was estimated to be $5 monthly per line, based on a thousand calls per year and a substantial number of special recording lines. The USITA also contends that this is the only method so far devised which would give adequate notification, but it alleges that the expense of this method would be prohibitively burdensome to smaller telephone companies. A further objection is that the requirement of handling all calls through the special operator, even those calls on which no recorder is to be used, would involve service delays. The alternative of a separate line for use only on calls to be recorded would add substantially to the subscriber's telephone costs. 14 It has been noted that the California Railroad Commission suggested that the warning signal should resemble the surface notice of a recording or transcription. The Bell System comments on this suggestion were to the effect that such a signal might not be sufficiently distinctive; also, that the signal would have to continue throughout the recording and would interfere with the recording and perhaps with the clarity of the telephone conversation. Directory Listing Plan Under this plan, an asterisk or some other special indicator would be placed alongside the name of each subscriber who had a telephone recording device. This indicator would refer to a note of explanation at the bottom of the directory page. The Bell System criticizes this plan as affording no protection to persons called from a telephone at which there is a recorder; it does not cover the situation where recorders are installed after the publication of a directory; and many calls are made without reference to telephone directories, as, for example, from letterheads, advertisements, or long-distance calls from other cities. CONCLUSIONS ON METHODS OF NOTIFICATION OF USE OF RECORDING DEVICES Upon consideration of the above methods of notification, the Commission is of the opinion that form of automatic tone warning, generally uniform throughout the United States, supplemented by appropriate publicity by both the telephone companies and the recorder manufacturers, should serve adequately to inform users of interstate and foreign message telephone toll service as to the use of recording devices in connection with such service. Any publicity program should make provision for the insertion of full-page statements in the telephone directories informing the telephone using public of the nature and use of recording devices and describing in detail the operation and significance of the tone warning signal. In addition, the telephone companies can familiarize the public with the tone warning signal by making available a special telephone number which, when dialed or called, would reproduce the tone warning sound. Even if the publicity should not reach the particular user, a recurrent unusual sound should make him sufficiently suspicious to cause him to ascertain the reason therefor. Of course, the other party might attempt to deceive him as to the cause of the sound, but if the party would work such a deceit, he would presumably attempt to evade any safeguards intended to protect a telephone user against the use of recording devices without his knowledge and authorization. The Commission recognizes the defects pointed to by the Bell System in the directory listing plan and concludes that such plan would not be effective in providing adequate notice of a recording device. With respect to the operator announcement plan proposed by the Bell System, the Commission is of the opinion that this plan is much too cumbersome, involving too much expense and service inconvenience in relation to what can be achieved thereby. Insistence on such a plan might well defeat the objective of regularizing the use of recording devices. The above conclusions regarding the use of telephone recording devices, and particularly their connection with the telephone line and the form of automatic warning signal, present specific engineering questions. These questions include such matters as how the physically connected type of recorder should be connected to the telephone line, how the automatic warning device should be connected, and the development of an adequate tone warning signal which will be of sufficient audibility to be heard by parties to a recorded telephone conversation, but will not impair the clarity or coherence of the telephone conversation or the recording thereof. The matter of obtaining uniformity of the signal produced by the automatic tone warning devices associated with different types of recording devices and the proper interval of time between signals also require further investigation and study. Since these questions are principally of a technical or engineering character, it is the opinion of the Commission that they can be most readily resolved by an engineering conference of representatives of the telephone companies, the manufacturers of recording devices, the State commissions and this Commission. On the basis of such findings and recommendations as result from this conference, the Commission will give consideration to the adoption of engineering standards to govern the installation, use, and operation of telephone recorders and automatic tone warning devices. The Commission will postpone issuance of its final order in this proceeding until such consideration has been had. LAWFULNESS OF PRESENT TARIFF REGULATIONS APPLICABLE ΤΟ TELEPHONE RECORDING DEVICES In view of our conclusion that under certain conditions, the use of recording devices should be permitted in connection with interstate and foreign message 15 It is of interest to note that such a plan has been in use in England and Sweden. toll telephone service, it is our further conclusion that insofar as any tariff regulations on file with us have the effect of barring such use of recording de vices, such tariff regulations are unjust and unreasonable, and therefore un lawful under the provisions of section 201 of Communications Act." APPARENT VIOLATIONS OF APPLICABLE TARIFFS The record herein indicates that recording devices have been used in connection with interstate and foreign message toll telephone service despite effective tariffs on file with this Commission apparently prohibiting such use. The Commission is of the opinion, however, that no action is called for with respect to these apparent tariff violations in view of the above conclusion as to unlawfulness of the pertinent tariff regulations as applied to telephone recording devices. Of course, once just and reasonable tariff regulations concerning this matter are on file with this Commission, and are in effect, strict adherence thereto, in accordance with the provisions of section 203 of the Communications Act, will be expected. TARIFF REGULATIONS TO BE ESTABLISHED The Commission is of the opinion that tariff regulations should be filed with it in accordance with section 203 of the Communications Act, by all telephone companies required to file tariffs thereunder, which state, in conformity with the above conclusions, that recording devices may be installed and used in connection with interstate and foreign message toll telephone service, but only under certain specified conditions. These conditions should include the requirements that recording devices be used only when such device, at the will of the user, can be physically disconnected from the telephone line or switched off; that recording devices, whether they be physically, or inductively connected, be used only when such use is accompanied by the operation of an automatic tone warning device; and that the telephone companies will provide, install and maintain any equipment which is necessary physically to connect a recording device to the telephone line. Specific provisions concerning the furnishing, installation, and maintenance of an automatic tone warning device may also become necessary, depending upon the outcome of the engineering conference to be held as indicated above. Provision should also be made for reasonable arrangements which would permit sales demonstrations by recorder organizations of their equipment. Tariff provisions so filed should afford a definite basis for the regulation under the Communications Act of the use of recording devices, enabling the regularization of such use and the elimination of unauthorized use. CONCLUSIONS 1. A real need and demand exist, for legitimate governmental and commercial purposes, for the use of recording devices in connection with interstate and foreign message toll telephone service. 2. The use of recording devices does not impair the quality of telephone service. In the case of a recorder physically connected to the telephone line, proper safeguards should be employed in the connecting equipment. 3. The use of recording devices in connection with interstate and foreign message toll telephone service should be authorized, provided such use is accompanied by adequate notice to all parties to the telephone conversation that the conversation is being recorded. Adequate notice will be given by the use of the automatic tone warning device, which would 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. Both the telephone companies and the recorder manufacturers should also undertake a publicity program designed to inform telephone users generally of the use of telephone recording devices and of the import of the warning signal. Any publicity program should provide for the insertion of full-page statements in telephone directories, informing the telephone using public of the nature and 10 Another aspect of this matter is found in the fact that the application of the pertinent tariff regulation of the four Chesapeake & Potomac Telephone Cos, and of the Bluefield Telephone Co. is dependent upon the "consent" or "approval" of the telephone company. This would also render the tariff regulation unjust and unreasonable, and thus unlawful under the Communications Act. Published tariffs should be definite and certain so that a user can ascertain therefrom that to which he is entitled without regard to the whim of the telephone company. See our Rules and Regulations, sec. 61.55 (f). |