B-13110, MARCH 24, 1941, 20 COMP. GEN. 546

B-13110: Mar 24, 1941

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TELEGRAMS - RATES - TOURATE APPLICABILITY TO GOVERNMENT MESSAGES A TELEGRAPH COMPANY MAY NOT CHARGE MORE FOR TRANSMITTING GOVERNMENT MESSAGES THAN THE LOWEST AVAILABLE RATE WHICH WILL FAIRLY ACCOMPLISH THE SERVICE REQUESTED OF IT. WHERE THE COMMERCIAL TOURATE IS AVAILABLE FOR A PARTICULAR MESSAGE AND THAT RATE IS LESS THAN THE GOVERNMENT DAY MESSAGE RATE. THE GOVERNMENT IS ENTITLED TO THE LOWER RATE EVEN THOUGH THE MESSAGE IS NOT SPECIFICALLY DESIGNATED AS A TOURATE MESSAGE. 1941: I HAVE YOUR LETTER OF FEBRUARY 7. OF WHICH YOU WERE GOOD ENOUGH TO GIVE ME THE BENEFIT IN YOUR LETTER OF THE 17TH. THAT WE HAVE ALLOWED OURSELVES TO BE LED ASTRAY FROM THE REAL POINT AT ISSUE AND THAT THERE IS ALSO A QUITE EVIDENT MISCONCEPTION CONCERNING THE PRACTICE WITH REFERENCE TO COMMERCIAL MESSAGES PARALLELING THE GOVERNMENT MESSAGES UNDER CONSIDERATION.

B-13110, MARCH 24, 1941, 20 COMP. GEN. 546

TELEGRAMS - RATES - TOURATE APPLICABILITY TO GOVERNMENT MESSAGES A TELEGRAPH COMPANY MAY NOT CHARGE MORE FOR TRANSMITTING GOVERNMENT MESSAGES THAN THE LOWEST AVAILABLE RATE WHICH WILL FAIRLY ACCOMPLISH THE SERVICE REQUESTED OF IT, AND WHERE THE COMMERCIAL TOURATE IS AVAILABLE FOR A PARTICULAR MESSAGE AND THAT RATE IS LESS THAN THE GOVERNMENT DAY MESSAGE RATE, THE GOVERNMENT IS ENTITLED TO THE LOWER RATE EVEN THOUGH THE MESSAGE IS NOT SPECIFICALLY DESIGNATED AS A TOURATE MESSAGE.

COMPTROLLER GENERAL WARREN TO THE WESTERN UNION TELEGRAPH CO., MARCH 24, 1941:

I HAVE YOUR LETTER OF FEBRUARY 7, 1941, AS FOLLOWS:

I APPRECIATE THE FULL EXPOSITION OF YOUR VIEWS CONCERNING THE APPLICATION OF COMMERCIAL TOURATE CLASSIFICATION TO CERTAIN GOVERNMENT MESSAGES, OF WHICH YOU WERE GOOD ENOUGH TO GIVE ME THE BENEFIT IN YOUR LETTER OF THE 17TH. I AM AFRAID, HOWEVER, THAT WE HAVE ALLOWED OURSELVES TO BE LED ASTRAY FROM THE REAL POINT AT ISSUE AND THAT THERE IS ALSO A QUITE EVIDENT MISCONCEPTION CONCERNING THE PRACTICE WITH REFERENCE TO COMMERCIAL MESSAGES PARALLELING THE GOVERNMENT MESSAGES UNDER CONSIDERATION.

AFTER ALL, THERE IS ONLY ONE QUESTION IN THE CASE.

THE PREMISES ARE:

A MESSAGE IS FILED AS A GOVERNMENT DAY MESSAGE.

THE TEXT CONSISTS OF MATTER WHICH WOULD QUALIFY THE MESSAGE FOR ACCEPTANCE AS A TOURATE MESSAGE IF IT WERE A COMMERCIAL MESSAGE.

THE CHARGE FOR THE MESSAGE AS A GOVERNMENT DAY MESSAGE IS GREATER THAN IT WOULD BE AS A COMMERCIAL TOURATE MESSAGE.

THE MESSAGE IS CHARGED FOR AS A GOVERNMENT DAY MESSAGE.

QUERY.--- DOES THIS CHARGE EXCEED THE CHARGE FOR A CORRESPONDING COMMERCIAL MESSAGE?

FOR EXAMPLE.--- A 10-WORD MESSAGE FROM DALLAS TO WASHINGTON FILEDAS A GOVERNMENT DAY MESSAGE: COMMERCIAL FULL RATE 90 CENTS; GOVERNMENT RATE 54 CENTS; TOURATE 35 CENTS:

DOES THE CHARGE OF 54 CENTS EXCEED THE CHARGE FOR A CORRESPONDING COMMERCIAL MESSAGE?

THE ANSWER IS " NO.'

A CORRESPONDING COMMERCIAL MESSAGE IS A MESSAGE FILED AS A FULL-RATE TELEGRAM, THE TEXT OF WHICH WOULD ENTITLE IT TO TOURATE CLASSIFICATION IF FILED AS A TOURATE. THE CHARGE FOR SUCH A COMMERCIAL MESSAGE IS THE FULL TELEGRAM RATE--- IN THIS CASE 90 CENTS.

IT WAS EVIDENTLY ERRONEOUSLY ASSUMED THAT SUCH A COMMERCIAL MESSAGE WOULD BE CHARGED FOR AS A TOURATE MESSAGE. IN THE SECOND PARAGRAPH ON PAGE 4 OF YOUR LETTER YOU SAY:

" I ASSUME IT WOULD NOT BE CONTENDED THAT, IF THE MESSAGES HERE INVOLVED HAD BEEN SENT BY PRIVATE INDIVIDUALS INSTEAD OF GOVERNMENT OFFICERS AND EMPLOYEES, THEY WOULD NOT HAVE BEEN ENTITLED TO THE TOURATE.'

IT IS NOT ONLY SO CONTENDED. IT IS THE FACT.

IT IS IMPOSSIBLE FOR THE EMPLOYEES OF OUR BILLING ORGANIZATIONS TO READ THOUSANDS OF MESSAGES THAT PASS THROUGH THEIR HANDS. THEY MUST PERFORCE BE GUIDED BY THE CHECK OF THE MESSAGE. THEY CAN COMPLY WITH SUCH REQUIREMENTS OF THE ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION, AS, FOR EXAMPLE, THAT A MESSAGE CHECKED AS A GOVERNMENT DAY LETTER SHALL BE RATED AS A GOVERNMENT DAY MESSAGE, IF THAT PRODUCES A LOWER CHARGE, BECAUSE THERE THE CHECK OF THE MESSAGE TELLS THE WHOLE STORY, BUT THEY CANNOT READ THE MESSAGES, WHETHER THEY BE COMMERCIAL OR GOVERNMENT, TO DETERMINE WHETHER POSSIBLY ONE OF THE MULTITUDE THEY HAVE TO HANDLE MIGHT ACCORDING TO ITS TEXT HAVE BEEN FILED UNDER A DIFFERENT CLASSIFICATION THAN IT ACTUALLY WAS. CLASSIFICATION DEPENDING ON THE TEXT MUST THEREFORE BE SELECTED BY THE SENDER AND FIXED AT THE TIME OF FILING. IF THE MESSAGE IS FILED AS A FULL-RATE COMMERCIAL TELEGRAM AND CHECKED ACCORDINGLY, IT IS CHARGED FOR AS A FULL-RATE TELEGRAM AND SIMILARLY, IF THE MESSAGE IS A GOVERNMENT MESSAGE, FILED AS A GOVERNMENT DAY MESSAGE AND CHECKED ACCORDINGLY, IT IS CHARGED FOR AS A GOVERNMENT DAY MESSAGE.

IN THE CASE OF GOVERNMENT MESSAGES THAT MIGHT HAVE BEEN SENT AS COMMERCIAL TOURATE MESSAGES, THE DIFFICULTY LIES IN THE ABSENCE OF APPROPRIATE INSTRUCTIONS TO THE FIELD REPRESENTATIVES OF THE GOVERNMENT AGENCIES. THE REMEDY IS THAT MESSAGES HAVING THE CHARACTERISTICS ENTITLING THEM TO THE TOURATE CLASSIFICATION, THAT IS, REFERENCE TO TIME OF ARRIVAL OR DEPARTURE, WHERE STOPPING, NATURE OF WEATHER AS EFFECTS TRIPS, ETC., SHALL BE FILED AS COMMERCIAL TOURATE MESSAGES AND NOT AS GOVERNMENT MESSAGES WHENEVER THE CHARGE FOR THE MESSAGES AS A COMMERCIAL TOURATE IS LESS THAN IT WOULD BE AT GOVERNMENT RATES.

THIS MATTER AROSE OUT OF DIFFERENCES TOTALING $30.20 FOUND IN THE AUDIT BY THIS OFFICE OF CERTAIN RURAL ELECTRIFICATION ADMINISTRATION VOUCHERS STATED IN YOUR FAVOR, CONTAINING CHARGES FOR A NUMBER OF TELEGRAMS BILLED AS GOVERNMENT DAY MESSAGES, BUT WHICH WERE FOUND, ACCORDING TO THEIR SUBJECT MATTER, PROPERLY TO HAVE BEEN ACCEPTABLE AS "TOURATE TELEGRAMS.' THE AUDIT EXCEPTION WAS COMPUTED UPON THE DIFFERENCES CHARGED BETWEEN THE RATES FOR THE PARTICULAR GOVERNMENT DAY MESSAGES AND THE SOMEWHAT LOWER RATE FOR COMMERCIAL TOURATE TELEGRAMS.

IN DECISION OF THIS OFFICE DATED JANUARY 17, 1941, SUSTAINING THE AUDIT ACTION, THERE WAS QUOTED THE APPLICABLE ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION AS TO RATES PAYABLE FOR GOVERNMENT TELEGRAMS, PARAGRAPH 5 OF WHICH PROVIDES IN PART," THAT IN NO CASE SHALL THE CHARGE FOR A GOVERNMENT MESSAGE EXCEED THE CHARGE FOR A CORRESPONDING COMMERCIAL MESSAGE," AND QUOTED, ALSO, THE FOLLOWING DESIGNATION OF THE TOURATE SERVICE, FROM YOUR TARIFFS FILED AS F.C.C. NOS. 213 AND 176:

DESCRIPTION OF SERVICE AND WHERE AVAILABLE.--- THIS SERVICE IS RESTRICTED TO MESSAGES CONCERNING TRIPS, LIMITED TO INFORMATION CONCERNING THE TIME OF ARRIVAL, HEALTH OF THE SENDER OR OF THE PARTY, STATE OF THE WEATHER, A CHARACTERIZATION OF THE TRIP, TIME OF DEPARTURE, THE NEXT DESTINATION OR DESTINATIONS, AND TIME OF ARRIVAL AT DESTINATION OR DESTINATIONS, TO WHICH MAY BE ADDED AN EXPRESSION OF AFFECTION OR REGRET AT SEPARATION FROM THE ADDRESSEE, SUCH AS " LOVE," " LOVE TO ALL," " DEVOTEDLY," " MISSING YOU," " MISSING YOU GREATLY," " WISH YOU WERE WITH US," " SORRY YOU ARE NOT WITH US.'

SPECIAL RATE MESSAGE SERVICES.--- THIS CLASSIFICATION COVERS TOURATE, RESERVATION, HOLIDAY GREETING, SPECIAL OCCASION GREETING AND SPECIAL OCCASION MESSAGES WHICH ARE ACCEPTED AT SPECIAL LOW RATES AND RECEIVE THE SAME HANDLING AS ORDINARY TELEGRAMS. * * *

WHILE YOUR FORMER LETTER OF NOVEMBER 16, 1940, RATHER IMPLIES THAT THE TOURATE SERVICE IS NOT AVAILABLE TO THE GOVERNMENT, THE PREMISE NOW APPEARS TO BE CONCEDED THAT GOVERNMENT MESSAGES, TO THE SAME EXTENT AS COMMERCIAL TELEGRAMS, MAY BE SENT AT THE ORDINARY TOURATE (35 CENTS FOR 15 WORDS OR LESS, TO ANY WESTERN UNION DESTINATION IN THE UNITED STATES). HOWEVER, YOU REPEAT THE CONTENTION THAT, ONCE A TELEGRAM IS FILED AS A " GOVERNMENT DAY MESSAGE," NO OTHER CLASSIFICATION MAY APPLY, AND, IN EFFECT, THAT IT IS SOLELY YOUR CUSTOMERS' DUTY TO BE AWARE OF, AND DEMAND, THE LOWER RATE, OR OTHERWISE THE RIGHT THERETO IS FORFEITED.

WHILE IT MAY NOT BE MATERIAL, IT IS NOT ENTIRELY CLEAR HOW THE MESSAGES IN QUESTION WERE DESIGNATED BY THE SENDERS. IT IS NOTED THAT THE ORDINARY TELEGRAM BLANK (YOUR FORM 1207-B) CONTAINS NEITHER THE WORDS " GOVERNMENT" NOR "DAY MESSAGE.' WHILE GOVERNMENT TRAVELERS ARE INSTRUCTED TO ENDORSE THEIR TELEGRAMS " OFFICIAL BUSINESS," THIS SERVES NOT ALONE TO FIX THE PROPER RATES, BUT TO SECURE THE PRIORITY IN TRANSMISSION WHICH THE STATUTE REQUIRES (R. S. 5266, 47 U.S.C. 3). BUT ASSUMING THESE TELEGRAMS WERE SO ENDORSED, AND ASSUMING ALSO--- WHAT HAS NOT BEEN ESTABLISHED--- THAT SOME OF THE MESSAGES MAY HAVE BEEN CHECKED SPECIFICALLY BY THE SENDERS AS FULL- RATE TELEGRAMS, STILL THE TOURATE WOULD NOT NECESSARILY BE EXCLUDED THEREBY. THE FACE OF THE TELEGRAM BLANK PRESENTS NO ALTERNATIVE SELECTION HEADED "TOURATE," AND YOU DO NOT SUGGEST THAT YOUR CLERKS WHO RECEIVED THESE MESSAGES REFERRED TO THE TOURATE SERVICE OR IN ANY WAY MENTIONED ITS AVAILABILITY. THUS, THERE CAN BE NO CONTENTION THAT THE SENDERS, HAVING AN ACTUAL CHOICE OF TWO SERVICES, REFUSED THE CHEAPER AND REQUIRED THE FULL RATE, AND IT MAY BE DOUBTED WHETHER THERE WOULD BE AUTHORITY TO DO SO. BEARING IN MIND THAT THE TOURATE SERVICE AS RENDERED, WHATEVER IT BE TERMED, (1) DOES NOT CALL FOR PREARRANGED PHRASES OR CODES, (2) OFFERS NO APPARENT ECONOMY IN THE COST OF THE TRANSMISSION, AND (3) SO FAR AS CONCERNS ACTUAL RESULTS EITHER TO THE SENDER OR THE RECIPIENT, IS ABSOLUTELY IDENTICAL TO THE FULL-RATE SERVICE (IN FACT, IN CERTAIN CIRCUMSTANCES, THE TOURATE IS A SUPERIOR SERVICE, EVEN AT THE LOWER RATE-- - SEE F.C.C. TARIFF NO. 176, P. 33), THE TELEGRAPH COMPANY, LIKE ANY PUBLIC UTILITY, WOULD SEEM TO BE BOUND UNDER A POSITIVE DUTY TO OFFER THE CHEAPEST SERVICE WHICH REASONABLY WILL SUPPLY THE PARTICULAR DEMAND MADE UPON IT, AS THE COURTS OFTEN HAVE HELD. IN NORTHERN PACIFIC RY. CO. V. SOLUM (1918), 247 U.S. 477, THE SUPREME COURT SAID:

IN THE ABSENCE OF SHIPPING INSTRUCTIONS IT IS ORDINARILY THE DUTY OF THE CARRIER TO SHIP BY THE CHEAPER ROUTE. BUT THE DUTY IS NOT AN ABSOLUTE ONE. THE OBLIGATION OF THE CARRIER IS TO DEAL JUSTLY WITH THE SHIPPER, NOT TO CONSIDER ONLY HIS INTERESTS AND TO DISREGARD WHOLLY ITS OWN AND THOSE OF THE GENERAL PUBLIC. IF, ALL THINGS CONSIDERED, IT WOULD BE UNREASONABLE TO SHIP BY THE CHEAPER ROUTE, THE CARRIER IS NOT COMPELLED TO DO SO. THE DUTY IS UPON THE CARRIER TO SELECT THE CHEAPER ROUTE ONLY "IF OTHER CONDITIONS ARE REASONABLY EQUAL.' * * *

SEE ALSO MILLER V. DAVIS ( IOWA, 1932), 78 A.L.R. 1541, AND NOTE, PAGE 1545; POOR V. C., B. AND Q.R.R., 12 I.C.C. 469; AND COMPARE THE CASES COLLECTED AT 38 A.L.R. 1065 UNDER THE HEADING," DUTY OF PUBLIC SERVICE CORPORATION TO INSTRUCT PATRON AS TO ECONOMICAL MANNER OF USING THE SERVICE * * " SIMILARLY, IN EICHACKER V. N.Y. TELEPHONE C. (1940), 14 N.Y.S. (2D) 17, IT WAS HELD ( SYL.)," THE RESPONSIBILITY FOR THE SELECTION OF THE APPROPRIATE SERVICE CLASSIFICATION UNDER TARIFF FILED BY TELEPHONE COMPANY * * * IS ON THE TELEPHONE COMPANY AND NOT ON THE SUBSCRIBER.' LONG AGO AS 1876, THE ATTORNEY GENERAL, CONSIDERING A QUESTION OF GOVERNMENT TELEGRAPH RATES WHERE ALTERNATE ROUTES OF TRANSMISSION WERE AVAILABLE TO THE SAME DESTINATION, HELD, IN 15 OP. ATTY. GEN. 579, 582:

* * * THE UNITED STATES AS SENDERS OF THE DISPATCH, HAVE AN OPTION OF SELECTING THE ROUTE BY WHICH IT SHALL GO; AND WHEN SUCH SELECTION IS EXPRESSED, THE DUTY OF THE COMPANY TO COMPLY IS JUST WHAT IT WOULD BE IF THE LINE SELECTED WERE THE ONLY ONE UNDER ITS CONTROL; AND, EVEN IF THE UNITED STATES HAVE EXPRESSED NO OPTION, I AM STRONGLY INCLINED TO THINK THAT THE COMPANY WOULD BE HELD (BY AN IMPLICATION OF A PROMISE TO ACCOMPLISH THE RESULT REQUIRED BY NO MORE THAN NECESSARY LABOR) TO AN AGREEMENT TO CHARGE NO MORE FOR THE DISPATCH THAN IT WAS FAIRLY WORTH TO SEND IT; THAT IS, WHAT IT WAS WORTH TO SEND IT BY THE CHEAPER LINE. FOR IN EITHER CASE THE ARTICLE FURNISHED TO THE UNITED STATES IS THE SAME, I.E., A DISPATCH DELIVERED AT PUEBLO; WHEREAS IF THE COMPANY WERE ALLOWED AS A MATTER OF MERE OPTION TO TRANSMIT SUCH DISPATCH BY THE MORE EXPENSIVE LINE, IT WOULD BE EQUIVALENT TO PERMISSION TO CHARGE THEIR CUSTOMERS FOR LABOR UNNECESSARILY EXPENDED. THAT YOUR COMPANY HAS FULL RECOGNIZED THAT PRINCIPLE APPEARS FROM YOUR TARIFFS. FOR EXAMPLE, UNDER RULE IX, PAGE 15, OF F.C.C. NO. 176, WHEN A COMMERCIAL DAY MESSAGE IS OFFERED AT SO LATE AN HOUR AS TO PRECLUDE DELIVERY THAT DAY, THE SENDER IS TO BE SO ADVISED, AND THE CLASSIFICATION IS TO BE CHANGED TO NIGHT LETTER, IF AGREED UPON. OR, AS IT IS PUT IN YOUR " INSTRUCTIONS FOR RECEIVING CLERKS," FILED AS F.C.C. NO. 13:

23. THE COST OF MESSAGES MAY SOMETIMES BE REDUCED BY LEAVING OUT SUPERFLUOUS WORDS, BY THE USE OF DIFFERENT PHRASES, BY SPELLING OUT NUMBERS INSTEAD OF USING FIGURES, OR BY THE USE OF A CHEAPER BUT EQUALLY SATISFACTORY CLASS OF SERVICE FOR THE SPECIAL END IN VIEW.

147. WHENEVER IT SEEMS ADVISABLE TO DO SO, RECEIVING CLERKS SHALL EXPLAIN THE CHARACTERISTICS OF THE VARIOUS CLASSES OF SERVICE, AND ASSIST PATRONS IN MAKING THE BEST SELECTION ACCORDING TO THE URGENCY, LENGTH OF THE COMMUNICATION, OR OTHER CONTROLLING CIRCUMSTANCES.

148. AS ALREADY EXPLAINED, AN OVERNIGHT MESSAGE WILL BE MARKED AND CHARGED FOR AS A NIGHT MESSAGE OR NIGHT LETTER, ACCORDING TO WHICH IS CHEAPER, IRRESPECTIVE OF THE SENDER'S INDICATION.

THUS, WHILE THE SPECIFIC INSTRUCTIONS TO GOVERNMENT TRAVELERS WHICH YOU SUGGEST MAY BE FOUND NECESSARY AS A MEASURE OF PROTECTION TO THE GOVERNMENT, THAT IT BE NOT OVERCHARGED, THE LEGAL DUTY IN THE MATTER CLEARLY IS UPON THE TELEGRAPH COMPANY TO CHARGE THE LOWEST RATE WHICH WILL FAIRLY ACCOMPLISH THE SERVICE REQUESTED OF IT, AND THIS MAY BE CARRIED OUT, WITHOUT THE INCONVENIENCE TO YOUR BILLING CLERKS TO WHICH YOU REFER, IF, IN COMPLIANCE WITH PRESENT INSTRUCTIONS YOUR RECEIVING CLERKS WILL MERELY OFFER THE TOURATE SERVICE WHENEVER APPLICABLE, AND SO CHECK THE MESSAGES FOR TRANSMISSION. THE ALTERNATIVE RULE WOULD REQUIRE THE CONCLUSION THAT THE TOURATE IS AVAILABLE ONLY TO THOSE WHO MAY CHANCE TO BE AWARE OF IT, WHILE OTHERS WHO RECEIVE EXACTLY THE SAME SERVICE MUST PAY MORE--- A RATHER OBVIOUS DISCRIMINATION WHICH THE STATUTES PARTICULARLY PROHIBIT. SEE WESTERN UNION V. ESTEVE (1921), 256 U.S. 566, WHICH INVOLVED A TARIFF PROVISION AGAINST THE SENDER'S INTEREST, BUT UNKNOWN TO HIM, AND YOUR COMPANY SUCCESSFULLY URGED BEFORE THE SUPREME COURT THAT THE TARIFF PROVISIONS WERE CONTROLLING. ACCORDINGLY, THE DECISION OF JANUARY 17, 1941, MUST BE, AND IS, AFFIRMED, BUT IT IS CALLED TO YOUR ATTENTION THAT THE ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION FIXING THE GOVERNMENT RATE IS ISSUED ANNUALLY, SHORTLY BEFORE THE BEGINNING OF EACH FISCAL YEAR, AND IF THE PRESENT RULE, AS HERE APPLIED, IS DEEMED TO BE UNSATISFACTORY, IT IS OPEN TO YOU TO MAKE SUCH REPRESENTATIONS TO THE COMMISSION AS YOU MAY BE ADVISED, WITH A VIEW TO EFFECTING A CHANGE IN THE RULE FOR THE SUCCEEDING YEAR.