B-165102, SEPT. 10, 1968

B-165102, SEPT. 10, 1968

TO SOUTHWESTERN BELL TELEPHONE COMPANY:

WE REFER TO YOUR LETTER DATED AUGUST 7, 1968, REQUESTING A REVIEW OF THE SETTLEMENT DATED AUGUST 17, 1967, WHICH DISALLOWED YOUR CLAIM FOR$79.74 FOR LONG-DISTANCE TELEPHONE CALLS PLACED FROM WEBB AIR FORCE BASE, TEXAS.

ON JULY 14, 1966, THE TELEPHONE SYSTEM WAS CONVERTED FROM OPERATOR ASSISTANCE LONG-DISTANCE CALLS TO DIRECT DISTANCE DIALING (DDD) SYSTEM WITH THE RESULT THAT ANYONE ON THE BASE WITH ACCESS TO A TELEPHONE COULD CHARGE LONG-DISTANCE CALLS TO THE BASE TELEPHONE NUMBER. THERE WERE NUMEROUS UNAUTHORIZED CALLS MADE AFTER THE INCEPTION OF THE DDD SYSTEM AND IN MOST INSTANCES THE UNAUTHORIZED USERS WERE IDENTIFIED THROUGH "TRACER ACTION," WHO THEN IN TURN PAID THE TELEPHONE CHARGES. HOWEVER, WITH RESPECT TO YOUR CLAIM FOR $79.74, THE ADMINISTRATIVE REPORT STATED THAT THE IDENTITY OF THE INDIVIDUALS PLACING THESE CALLS COULD NOT BE DETERMINED, BUT THAT THE CALLS WERE UNAUTHORIZED AND NOT RELATED TO LEGITIMATE GOVERNMENT BUSINESS. ACCORDINGLY, YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION BECAUSE THE CALLS WERE PERSONAL CALLS, PAYMENT FOR WHICH IS PROHIBITED BY THE PROVISIONS OF SECTION 4 OF THE ACT OF MAY 10, 1939, 53 STAT. 738, 31 U.S.C. 680A, WHICH PROVIDES THAT: "* * * NO PART OF ANY APPROPRIATION FOR ANY EXECUTIVE DEPARTMENT, ESTABLISHMENT, OR AGENCY SHALL BE USED FOR THE PAYMENT OF LONG-DISTANCE TELEPHONE TOLLS EXCEPT FOR THE TRANSACTION OF PUBLIC BUSINESS WHICH THE INTERESTS OF THE GOVERNMENT REQUIRE TO BE SO TRANSACTED; AND ALL SUCH PAYMENTS SHALL BE SUPPORTED BY A CERTIFICATE BY THE HEAD OF THE DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED, OR SUCH SUBORDINATES AS HE MAY SPECIALLY DESIGNATE, TO THE EFFECT THAT THE USE OF THE TELEPHONE IN SUCH INSTANCES WAS NECESSARY IN THE INTEREST OF THE GOVERNMENT.'

YOUR FIRST CONTENTION IS THAT SINCE THE CALLS WERE PLACED OVER OFFICIAL TELEPHONES BY UNKNOWN PARTIES, THE ASSUMPTION SHOULD BE THAT THE CALLS WERE INTENDED FOR OFFICIAL INSTEAD OF PERSONAL USE. IT SEEMS APPARENT THAT THE INTENT OF 31 U.S.C. 680A WAS TO REQUIRE AN AFFIRMATIVE DETERMINATION BY AN AGENCY HEAD OR HIS DESIGNEE, AND THAT THE ASSUMPTION FOR WHICH YOU CONTEND WOULD THEREFORE BE CONTRARY TO THE PURPOSE OF THE STATUTE. IN THIS CONNECTION, PARAGRAPH 2210.9, SECTION 100-22, OF THE AIR FORCE MANUAL REQUIRES THE BASE COMMUNICATION OFFICER TO CERTIFY, PURSUANT TO 31 U.S.C. 680A, THAT USE OF THE TELEPHONE WAS FOR OFFICIAL PURPOSES, AND LACKING SUCH AFFIRMATIVE DETERMINATION, YOUR CLAIM MAY NOT BE PAID. SEE B-90487, NOVEMBER 29, 1949; B-72058, JULY 1, 1948.

YOUR SECOND CONTENTION IS THAT NOTWITHSTANDING THE OFFICIAL OR PERSONAL NATURE OF THE TELEPHONE CALL, THE AGENCY IS RESPONSIBLE "FOR PAYMENT OF ALL USAGE OF THAT SERVICE.' WHILE IT WOULD APPEAR, AS A GENERAL RULE, THAT A SUBSCRIBER IS LIABLE FOR ALL LONG-DISTANCE MESSAGES ORIGINATING FROM HIS TELEPHONE IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT CONTRACTS WITH THE FEDERAL GOVERNMENT FOR TELEPHONE SERVICES MUST BE MADE SUBJECT TO THE PROVISIONS OF 31 U.S.C. 680A, AND THE GENERAL RULE IS THEREFORE INAPPLICABLE. SEE B-164699, JULY 5, 1968.

LASTLY, YOU STATE THAT THE AIR FORCE WAS NEGLIGENT IN SUPERVISING THE USE OF TELEPHONES, AND SINCE IT WAS NOT WILLING TO PURCHASE A SERVICE WHICH WOULD HAVE PREVENTED THE PLACEMENT OF LONG-DISTANCE CALLS BY UNAUTHORIZED PERSONS, IT SHOULD BE FINANCIALLY RESPONSIBLE FOR SHORTCOMINGS OF THE DDD SYSTEM. WITH REGARD TO THESE CONTENTIONS, THE AIR FORCE ADVISES THAT YOUR COMPANY CONVERTED THE PHONE SYSTEM AT WEBB AIR FORCE BASE FROM OPERATOR- ASSISTANCE LONG-DISTANCE CALLS TO DDD FOR THE COMPANY'S OWN BENEFIT, AND NOT AT THE REQUEST OF THE BASE. THE AIR FORCE FURTHER ADVISES THAT, AS A PRACTICAL MATTER, IT WOULD BE IMPOSSIBLE FOR THE GOVERNMENT TO EFFECTIVELY POLICE ALL OF THE TELEPHONES ON THE INSTALLATION, AND SINCE THE GOVERNMENT DID NOT ASK FOR THE DDD SERVICE, IT CANNOT NOW BE ASKED TO PAY FOR ANOTHER SYSTEM THAT WOULD ELIMINATE THE POTENTIALITY WHICH HAS MATERIALIZED.

UNDER THE CIRCUMSTANCES, WE SEE NO PROPER BASIS UPON WHICH FAVORABLE CONSIDERATION MAY BE GIVEN TO YOUR CLAIM, AND THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE SUSTAINED.