B-29154, MARCH 2, 1943, 22 COMP. GEN. 855

B-29154: Mar 2, 1943

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IN THAT THE CLASS OF SERVICE DESIRED WAS NOT INDICATED OR THE MESSAGES WERE DIRECTED TO BE SENT AS DAY (FULL-RATE) MESSAGES. THERE IS NO AUTHORITY UNDER APPLICABLE TARIFFS OR UNDER FEDERAL COMMUNICATIONS COMMISSION ORDER NO. 70. 1943: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9. I HAVE NOT OVERLOOKED THE STATEMENT MADE IN YOUR LETTER TO THE EFFECT THAT ANY ADDITIONAL EVIDENCE OR JUSTIFICATION IN SUPPORT OF THE PAYMENTS INVOLVED SHOULD BE FURNISHED TO THE RESPECTIVE AGENCIES WHICH BROUGHT THE EXCEPTIONS TO THE ATTENTION OF THE TELEGRAPH COMPANY. IT SEEMS TO US THAT SINCE THESE AGENCIES ARE SUBJECT TO RULINGS ISSUED BY YOU IT WOULD BE BETTER TO DEAL DIRECT. WHICH IS THE BASIS OF THE GOVERNMENT'S POSITION IN THIS CASE.

B-29154, MARCH 2, 1943, 22 COMP. GEN. 855

TELEGRAMS - MESSAGES SENT OVER TELEPRINTER FACILITIES - APPLICABILITY OF TIMED WIRE SERVICE RATES WHERE THE GOVERNMENT, IN SENDING MESSAGES OVER TELEPRINTER FACILITIES TO THE TELEGRAPH COMPANY'S ( WESTERN UNION) OFFICE FOR TRANSMISSION OVER THE COMPANY'S LINES, FAILED TO FOLLOW THE PROCEDURE AVAILABLE FOR OBTAINING TIMED WIRE SERVICE, IN THAT THE CLASS OF SERVICE DESIRED WAS NOT INDICATED OR THE MESSAGES WERE DIRECTED TO BE SENT AS DAY (FULL-RATE) MESSAGES, THERE IS NO AUTHORITY UNDER APPLICABLE TARIFFS OR UNDER FEDERAL COMMUNICATIONS COMMISSION ORDER NO. 70, GOVERNING THE PRIORITY AND CHARGES FOR GOVERNMENT COMMUNICATIONS BY TELEGRAPH DURING THE FISCAL YEAR INVOLVED (1941), FOR RECOMPUTING CHARGES ON SUCH MESSAGES ON A CONSTRUCTIVE TIME- COUNT BASIS INSTEAD OF A WORD-COUNT BASIS IN CASES WHERE THE TIME-COUNT BASIS PRODUCED THE LOWER CHARGE. 1 COMP. GEN. 402 AND 20 ID. 546, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO J. C. WILLEVER, FIRST VICE-PRESIDENT, WESTERN UNION TELEGRAPH COMPANY, MARCH 2, 1943:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1942, AS FOLLOWS:

THIS HAS FURTHER REFERENCE TO THE QUESTION OF THE APPLICATION OF TWS RATES TO GOVERNMENT TELEGRAMS FILED AS DAY MESSAGES WHERE THE FORMER RATE PRODUCES A LOWER CHARGE, ABOUT WHICH YOU WROTE ME ON NOVEMBER 16, 1942.

I HAVE NOT OVERLOOKED THE STATEMENT MADE IN YOUR LETTER TO THE EFFECT THAT ANY ADDITIONAL EVIDENCE OR JUSTIFICATION IN SUPPORT OF THE PAYMENTS INVOLVED SHOULD BE FURNISHED TO THE RESPECTIVE AGENCIES WHICH BROUGHT THE EXCEPTIONS TO THE ATTENTION OF THE TELEGRAPH COMPANY. HOWEVER, IT SEEMS TO US THAT SINCE THESE AGENCIES ARE SUBJECT TO RULINGS ISSUED BY YOU IT WOULD BE BETTER TO DEAL DIRECT, AGAIN WITH RESPECT TO THIS MATTER.

IN FURTHER SUPPORT OF OUR POSITION, I SHOULD LIKE TO POINT OUT THAT AT THE TIME THE RULING OF THE COMPTROLLER GENERAL, WHICH IS THE BASIS OF THE GOVERNMENT'S POSITION IN THIS CASE, WAS MADE, THERE WERE IN EFFECT ONLY FOUR CLASSIFICATIONS OF COMMERCIAL TELEGRAPH SERVICE, NAMELY, DAY MESSAGE (FULL RATE), DAY LETTER, NIGHT MESSAGE AND NIGHT LETTER, AND NO SERIOUS OBJECTION COULD BE MADE TO THE RULING THAT "WHERE THERE ARE TWO RATES FOR TELEGRAPH SERVICE OF EQUAL DISPATCH, THE GOVERNMENT IS ENTITLED TO THE CHEAPER RATE, OF WHICH FACT THE TELEGRAPH COMPANIES ARE REQUIRED TO TAKE NOTICE AND BILL MESSAGES ACCORDINGLY," SINCE IT COULD APPLY ONLY IN THE CASE OF THE TWO OVERNIGHT SERVICES.

THESE SERVICES WERE OF THE SAME TYPE, THAT IS, THE CONDITIONS OF ACCEPTANCE WERE SIMILAR, THE CHARGE WAS BASED ON THE NUMBER OF WORDS IN BOTH CASES AND THE MESSAGES ALL CARRIED A WORD COUNT SO THAT IN THE BILLING OPERATION IT WAS ONLY NECESSARY TO COMPARE THE ALTERNATIVE RATES FOR THE NUMBER OF WORDS INDICATED AND USE THE LOWER OF THE TWO. HOWEVER, TWS MESSAGES DIFFER IN A NUMBER OF IMPORTANT RESPECTS FROM DAY MESSAGES FOR EXAMPLE:

1. FILING BY TELEPRINTER TIE/LINE IS REQUIRED.

2. ADDRESS AND SIGNATURE ARE CHARGED FOR.

3. CHARGE IS BASED ON THE TIME REQUIRED BY THE SENDER'S OPERATOR IN TRANSMITTING THE MESSAGE TO THE TELEGRAPH COMPANY'S OPERATING ROOM, AND THIS IS THE ONLY BASIS PROVIDED IN WESTERN UNION TARIFFS FOR COMPUTING THE TOLLS ON SUCH MESSAGES.

THE FEDERAL COMMUNICATIONS COMMISSION, WHICH ALONE HAS THE POWER TO FIX THE RATES TO BE CHARGED FOR U.S. GOVERNMENT MESSAGES, UNDOUBTEDLY WAS AWARE OF THE ABOVE RULING AND RECOGNIZED THAT ITS PROPER APPLICATION, INSOFAR AS THE TWS SERVICE WAS CONCERNED, IS AS PROVIDED IN THE F.C.C. GOVERNMENT RATE ORDER THAT " TIMED WIRE SERVICE MESSAGES (I.E., MESSAGES FILED INITIALLY AS TIMED WIRES) SHALL BE CHARGED FOR AS TIMED WIRE SERVICE OR AS DAY MESSAGES, ACCORDING TO WHICH OF THESE CLASSIFICATIONS PRODUCES THE LOWER CHARGE.' THERE IS NO CORRESPONDING PROVISION WITH RESPECT OF MESSAGES FILED INITIALLY AS DAY MESSAGES.

IT HAS ALSO BEEN NOTED THAT THE REGULATIONS OF CERTAIN GOVERNMENT AGENCIES, FOR EXAMPLE, THE U.S. ARMY SIGNAL CORPS REGULATIONS, PROVIDE THAT THE SENDER SHALL BE RESPONSIBLE FOR SELECTING THE MESSAGE CLASSIFICATION WHICH WILL RESULT IN THE LOWEST CHARGE TO THE GOVERNMENT FOR THE SERVICE REQUIRED. THIS IS A RECOGNITION OF OUR CONTENTION THAT THE SELECTION OF THE CLASS OF SERVICE DESIRED IS UP TO THE SENDER AND THAT BILLING SHOULD BE ON THAT BASIS.

IT IS RESPECTFULLY REQUESTED, THEREFORE, THAT YOU GIVE FURTHER CONSIDERATION TO THIS MATTER AND THAT YOUR RULING BE AMENDED TO BRING IT IN CONFORMANCE WITH THE FEDERAL COMMUNICATIONS COMMISSION'S ORDER WITH RESPECT TO GOVERNMENT RATES.

IT APPEARS FROM PRIOR CORRESPONDENCE THAT YOUR LETTER HAS REFERENCE TO EXCEPTIONS TAKEN BY THIS OFFICE IN THE AUDIT OF PAYMENTS MADE TO YOUR COMPANY ON VOUCHERS 3639 AND 3640 OF THE APRIL, 1941, ACCOUNTS OF MAJOR JOHN F. CONNELL, F.D., U.S. ARMY, COVERING SERVICES RENDERED TO THE CONSTRUCTION QUARTERMASTER, INDIANA ORDNANCE WORKS, WAR DEPARTMENT, CHARLESTOWN, INDIANA, DURING THE MONTHS OF FEBRUARY AND MARCH, 1941, AND ON VOUCHER 353204 OF THE AUGUST, 1941, ACCOUNTS OF G. F. ALLEN, CHIEF DISBURSING OFFICER, COVERING SERVICES RENDERED TO THE UNITED STATES HOUSING AUTHORITY, FEDERAL WORKS AGENCY--- NOW THE FEDERAL PUBLIC HOUSING AUTHORITY, NATIONAL HOUSING AGENCY--- DURING MAY, 1941. ALL OF SUCH EXCEPTIONS WERE BASED UPON REASONS SET FORTH IN THE EXCEPTION TO VOUCHER 3639, SUPRA, AS FOLLOWS:

THE FOLLOWING LISTED MESSAGES WERE FILED WITH THE COMPANY APPARENTLY BY MEANS OF TELEPRINTER TRANSMISSION FROM THE ADMINISTRATIVE OFFICE TO THE COMPANY'S OFFICE. SEE ST REVISED, PAGE 3 OF F.C.C. 202.

ON PAGE 37 OF F.C.C. 176, IT IS STATED THAT GOVERNMENT TELEGRAMS (DAY MESSAGES) AND GOVERNMENT TIMED-WIRE SERVICE MESSAGES ( TWS) HAVE EQUAL PRIORITY IN TRANSMISSION AND DELIVERY.

ALTHOUGH THE MESSAGES WERE FILED AND TRANSMITTED AS DAY MESSAGES THE TWS RATE WHICH PRODUCES THE LOWER CHARGE IS CONSIDERED APPLICABLE. SEE 1 COMP. GEN. 402; 20 ID. 546.

CHARGES ARE ALLOWED AT THE TWS RATE BASED ON TRANSMISSION OF 40 WORDS PER MINUTE.

YOU WERE ADVISED IN MY LETTER OF NOVEMBER 16, 1942, THAT JUSTIFICATIONS FOR THE PAYMENTS AS MADE SHOULD BE SUBMITTED TO THIS OFFICE BY THE DISBURSING OFFICERS IN WHOSE ACCOUNTS CREDIT FOR THE CHARGES WAS WITHHELD, RATHER THAN BY THE RECIPIENT OF SUCH PAYMENTS, AND THAT ANY ADDITIONAL EVIDENCE IN SUPPORT OF THE PAYMENTS SHOULD BE FURNISHED TO THE RESPECTIVE AGENCIES WHICH BROUGHT THE EXCEPTIONS TO THE ATTENTION OF YOUR COMPANY. HOWEVER, IN VIEW OF THE IMPORTANCE OF THE QUESTION IN THE AUDIT OF THE ACCOUNTS OF DISBURSING OFFICERS AND OF THE NUMBER OF ACCOUNTS IN WHICH THE QUESTION HAS ARISEN, I HAVE DECIDED TO GIVE THE MATTER CONSIDERATION AT THIS TIME.

SECTION 203, TITLE II OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1070, 1071, PROVIDES, IN PART:

(A) EVERY COMMON CARRIER, EXCEPT CONNECTING CARRIERS, SHALL, WITHIN SUCH REASONABLE TIME AS THE ( FEDERAL COMMUNICATIONS) COMMISSION SHALL DESIGNATE, FILE WITH THE COMMISSION AND PRINT AND KEEP OPEN FOR PUBLIC INSPECTION SCHEDULES SHOWING ALL CHARGES FOR ITSELF AND ITS CONNECTING CARRIERS FOR INTERSTATE AND FOREIGN WIRE OR RADIO COMMUNICATION BETWEEN THE DIFFERENT POINTS ON ITS OWN SYSTEM, AND BETWEEN POINTS ON ITS OWN SYSTEM AND POINTS ON THE SYSTEM OF ITS CONNECTING CARRIERS OR POINTS ON THE SYSTEM OF ANY OTHER CARRIER SUBJECT TO THIS ACT WHEN A THROUGH ROUTE HAS BEEN ESTABLISHED, WHETHER SUCH CHARGES ARE JOINT OR SEPARATE, AND SHOWING THE CLASSIFICATIONS, PRACTICES, AND REGULATIONS AFFECTING SUCH CHARGES. SUCH SCHEDULES SHALL CONTAIN SUCH OTHER INFORMATION, AND BE PRINTED IN SUCH FORM, AND BE POSTED AND KEPT OPEN FOR PUBLIC INSPECTION IN SUCH PLACES, AS THE COMMISSION MAY BY REGULATION REQUIRE, AND EACH SUCH SCHEDULE SHALL GIVE NOTICE OF ITS EFFECTIVE DATE; AND SUCH COMMON CARRIER SHALL FURNISH SUCH SCHEDULES TO EACH OF ITS CONNECTING CARRIERS, AND SUCH CONNECTING CARRIERS SHALL KEEP SUCH SCHEDULES OPEN FOR INSPECTION IN SUCH PUBLIC PLACES AS THE COMMISSION MAY REQUIRE.

(B) NO CHANGE SHALL BE MADE IN THE CHARGES, CLASSIFICATIONS, REGULATIONS, OR PRACTICES WHICH HAVE BEEN SO FILED AND PUBLISHED EXCEPT AFTER THIRTY DAYS' NOTICE TO THE COMMISSION AND TO THE PUBLIC, WHICH SHALL BE PUBLISHED IN SUCH FORM AND CONTAIN SUCH INFORMATION AS THE COMMISSION MAY BY REGULATIONS PRESCRIBE; BUT THE COMMISSION MAY, IN ITS DISCRETION AND FOR GOOD CAUSE SHOWN, MODIFY THE REQUIREMENTS MADE BY OR UNDER AUTHORITY OF THIS SECTION IN PARTICULAR INSTANCES OR BY A GENERAL ORDER APPLICABLE TO SPECIAL CIRCUMSTANCES OR CONDITIONS.

(C) NO CARRIER, UNLESS OTHERWISE PROVIDED BY OR UNDER AUTHORITY OF THIS ACT, SHALL ENGAGE OR PARTICIPATE IN SUCH COMMUNICATION UNLESS SCHEDULES HAVE BEEN FILED AND PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND WITH THE REGULATIONS MADE THEREUNDER; AND NO CARRIER SHALL (1) CHARGE, DEMAND, COLLECT, OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR SUCH COMMUNICATION, OR FOR ANY SERVICE IN CONNECTION THEREWITH, BETWEEN THE POINTS NAMED IN ANY SUCH SCHEDULE THAN THE CHARGES SPECIFIED IN THE SCHEDULE THEN IN EFFECT, OR (2) REFUND OR REMIT BY ANY MEANS OR DEVICE ANY PORTION OF THE CHARGES SO SPECIFIED, OR (3) EXTEND TO ANY PERSON ANY PRIVILEGES OR FACILITIES IN SUCH COMMUNICATION, OR EMPLOY OR ENFORCE ANY CLASSIFICATIONS, REGULATIONS, OR PRACTICES AFFECTING SUCH CHARGES, EXCEPT AS SPECIFIED IN SUCH SCHEDULE.

THE DESCRIPTION OF TIMED WIRE SERVICE AND THE RULES AND REGULATIONS APPLICABLE THERETO ARE SET OUT IN WESTERN UNION TARIFF F.C.C. NO. 202, ORIGINAL PAGE 3, EFFECTIVE NOVEMBER 15, 1939, READING, IN PART, AS FOLLOWS:

(1) DESCRIPTION OF SERVICE

TIMED-WIRE-SERVICE IS A MESSAGE SERVICE WHICH IS CHARGED FOR ON A TIME BASIS INSTEAD OF THE WORD BASIS USED IN CHARGING FOR OTHER TYPES OF TELEGRAPH MESSAGE SERVICE. THIS IS NOT A DIRECT CUSTOMER-TO CUSTOMER SERVICE. THE MESSAGES ARE TRANSMITTED FROM THE CUSTOMER'S OFFICE TO THE TELEGRAPH COMPANY'S OFFICE IN WHICH THE TELEPRINTER CIRCUIT PROVIDED FOR THE CUSTOMER'S OFFICE IS TERMINATED AND RELAYED AT THAT POINT OVER THE TELEGRAPH COMPANY'S REGULAR MESSAGE CIRCUITS. THE PERIOD CHARGED FOR IS MEASURED FROM THE TIME THE CUSTOMER BEGINS THE TRANSMISSION OF THE MESSAGE UNTIL RECEIPT FROM HIM OF A SIGNAL INDICATING THE END OF THE MESSAGE. THIS SERVICE IS AVAILABLE ONLY TO THOSE CUSTOMERS WHO HAVE TELEPRINTER FACILITIES, PROVIDED BY THE TELEGRAPH COMPANY FOR THE HANDLING OF MESSAGES BETWEEN SUCH CUSTOMERS' OFFICES AND OFFICES OF THE TELEGRAPH COMPANY. TIMED-WIRE-SERVICE MESSAGES MAY BE SENT BY SUCH CUSTOMERS ADDRESSED TO ANY ADDRESSEE LOCATED WITHIN THE UNITED STATES. THESE TELEPRINTER FACILITIES ARE PROVIDED AND MAINTAINED FREE OF CHARGE BY THE TELEGRAPH COMPANY, WHICH ALSO FURNISHES MESSAGE BLANKS, TELEPRINTER TAPE, RIBBONS AND OTHER STATIONERY AND OPERATING SUPPLIES REQUIRED IN THE USE OF THIS EQUIPMENT. THE CUSTOMER MUST STAND THE EXPENSE OF ELECTRIC POWER CONSUMED BY TELEPRINTER EQUIPMENT INSTALLED IN HIS OFFICE.

TELEPRINTER EQUIPMENT FURNISHED BY THE TELEGRAPH COMPANY MAY BE USED FOR TRANSMITTING TIMED-WIRE-SERVICE MESSAGES AND OTHER CLASSES OF MESSAGES TO THE OFFICE OF THE TELEGRAPH COMPANY AND RECEIVING SUCH MESSAGES FROM SUCH OFFICE, AND MUST NOT BE USED FOR ANY OTHER PURPOSE.

THE CUSTOMER MAY FURNISH HIS OWN TELEPRINTER EQUIPMENT IF HE SO DESIRES, PROVIDING SUCH EQUIPMENT MEETS WITH THE APPROVAL OF THE TELEGRAPH COMPANY. NO MINIMUM GUARANTEE OR MINIMUM CONTRACT PERIOD IS REQUIRED IN CONNECTION WITH THIS SERVICE, NOR IS THE CUSTOMER ASSESSED ANY CONSTRUCTION CHARGES WHICH MAY BE INVOLVED.

THE TELEGRAPH COMPANY DOES NOT PROVIDE OPERATORS TO WORK TELEPRINTERS INSTALLED IN CUSTOMERS' OFFICES.

(2) RULES AND REGULATIONS

TIMED-WIRE-SERVICE MESSAGES ADDRESSED TO THIS-LINE (NUMBER) POINTS, OR TO OTHER/LINE (NUMBER) POINTS IDENTIFIED BY THE SYMBOL P OR TO POINTS WHERE THE OTHER-LINE (NUMBER) CHARGE IS NOT BASED ON WORD COUNT, ARE SUBJECT TO THE RULES AND REGULATIONS APPLICABLE TO TELEGRAMS CONTAINED IN WESTERN UNION TARIFF F.C.C. NO. 176 WITH THE FOLLOWING EXCEPTIONS:

(A) ALL REFERENCES TO WORD-COUNT AND CHARGES BASED THEREON DO NOT APPLY. THE NUMBER OF MINUTES CHARGED FOR APPEARS IN THE MESSAGE CHECK INSTEAD OF THE WORD-COUNT.

WESTERN UNION TARIFF CIRCULAR, SUPPLEMENT NO. 3 TO F.C.C. NO. 144, EFFECTIVE SEPTEMBER 10, 1939, PAGE I, GIVES THE FOLLOWING INFORMATION IN RESPECT OF TIMED WIRE SERVICE:

THIS SERVICE IS AVAILABLE TO TELEPRINTER TIE/LINE PATRONS AND IS CHARGED FOR ON A TIME BASIS. TIMED WIRE SERVICE MESSAGES ARE IDENTIFIED BY THE LETTERS TWS, AND EXCEPT WHERE SPECIAL RATES ARE AUTHORIZED, THE RATE FOR THE FIRST THREE MINUTES OR FRACTION THEREOF IS ONE AND ONE-HALF TIMES THE RATE FOR A 10-WORD TELEGRAM BETWEEN THE SAME POINTS, AND ONE-THIRD OF THE INITIAL RATE FOR EACH ADDITIONAL MINUTE OR FRACTION THEREOF. THE FIGURE IN THE CHECK INDICATES THE NUMBER OF MINUTES CHARGED FOR.

WHILE APPARENTLY NOT FILED AS A TARIFF, A BOOKLET ENTITLED " SIMPLEX PRINTER OPERATION IN PATRONS' OFFICES," PUBLISHED BY THE WESTERN UNION TELEGRAPH COMPANY, THROWS ADDITIONAL LIGHT UPON THE ACTUAL OPERATION OF TIMED WIRE SERVICE. ON PAGE 32 OF SAID BOOKLET APPEARS THE FOLLOWING STATEMENT:

HOW TO SEND A TIMED WIRE: THE WESTERN UNION SHOULD BE SIGNALLED IN THE USUAL MANNER, AND AFTER THE " GA" (MEANING " GO AHEAD" ( NOTICE IS RECEIVED, THE SYMBOL " TWS" SHOULD BE SENT. THE WESTERN UNION OPERATOR WILL RESPOND WITH " GA TWS" AND THE MESSAGE MAY THEN BE TRANSMITTED. SHOULD BE FOLLOWED IMMEDIATELY WITH THE WORDS " END TWS" AND FIVE BELL SIGNALS TO INDICATE THAT THE MESSAGE SHOULD BE TIMED. THE WESTERN UNION OPERATOR WILL THEN TRANSMIT A NOTICE SHOWING THE NUMBER OF MINUTES CONSUMED IN THE TRANSMISSION, THUS SHOWING THE TIME UPON WHICH THE CHARGE WILL BE BASED. FOR EXAMPLE: " CHARGE WILL BE FOR 5 MINS THANK YOU"

AS WILL BE OBSERVED FROM FIGURE 16, NO CHECK (WORD COUNT) IS TRANSMITTED ON TIMED WIRES. ANOTHER DIFFERENCE FROM OTHER CLASSES OF DOMESTIC SERVICE IS THAT THE WORDS " PAID" OR " COLLECT" ARE INCLUDED AFTER THE CLASS-OF- SERVICE DESIGNATION " TWS" IN ALL TIMED WIRES. * * *

IT SHOULD BE NOTED HERE THAT BY SUPPLEMENT NO. 1 TO TARIFF F.C.C. NO. 202, TIMED WIRE SERVICE WAS CANCELLED EFFECTIVE FEBRUARY 1, 1943, APPARENTLY PURSUANT TO FEDERAL COMMUNICATIONS COMMISSION ORDER DATED NOVEMBER 30, 1942, IN DOCKET NO. 2639.

IT IS APPARENT FROM THE FOREGOING DESCRIPTION OF TIMED WIRE SERVICE THAT THERE WAS A DISTINCTION BETWEEN SUCH SERVICE AND THE FACILITIES USED IN TRANSMITTING TIMED WIRE MESSAGES FROM THE PATRON'S OFFICE TO THE OFFICE OF THE TELEGRAPH COMPANY, THAT IS, THE TELEPRINTER TIE/LINE. IT IS APPARENT, ALSO, THAT SUCH FACILITIES WERE INTENDED FOR USE NOT ONLY IN SENDING TIMED WIRES, BUT IN TRANSMITTING OTHER CLASSES OF MESSAGES IN EITHER DIRECTION BETWEEN THE TWO OFFICES. FINALLY, IT APPEARS THAT ONE OF THE PRINCIPAL DIFFERENCES BETWEEN TIMED WIRE MESSAGES AND OTHER CLASSES OF MESSAGES WHICH COULD BE SENT OVER TELEPRINTER FACILITIES WAS IN THE USE OF A TIME BASIS IN CHARGING FOR TIMED WIRE MESSAGES INSTEAD OF THE WORD BASIS ORDINARILY USED FOR OTHER CLASSES. THIS BEING SO, IT IS IMPORTANT TO CONSIDER JUST HOW TIMED WIRE SERVICE COULD HAVE BEEN OBTAINED UNDER THE TARIFFS IN FORCE AT THE TIME OF RENDITION OF THE SERVICES HERE INVOLVED.

IN THIS CONNECTION, THERE HAS BEEN FOUND NO GENERAL TARIFF REGULATION REQUIRING THE RECORDING OF THE TIME CONSUMED IN TRANSMITTING FROM A CUSTOMER'S OFFICE TO THE TELEGRAPH COMPANY'S OFFICE EVERY MESSAGE SENT OVER A TELEPRINTER. ONLY AS TO TIMED WIRE MESSAGES DID THE REQUIREMENT OF TIMING EXIST. THE METHOD FOR OBTAINING SUCH TIMING IS INDICATED IN TARIFFS F.C.C. NO. 144 AND F.C.C. NO. 202, SUPRA, AND EXPLAINED IN DETAIL IN THE MATTER QUOTED ABOVE FROM " SIMPLEX PRINTER OPERATION IN PATRONS' OFFICES.'

EXAMINATION OF VOUCHERS 3639 AND 3640 SHOWS THAT THE METHOD PRESCRIBED FOR OBTAINING TIMED WIRE SERVICE WAS FOLLOWED IN THE CASE OF MANY MESSAGES SENT FROM THE INDIANA ORDNANCE WORKS DURING FEBRUARY AND MARCH, 1941. THE ORIGINALS OF SUCH MESSAGES, AS TRANSMITTED BY THE GOVERNMENT OVER THE TELEPRINTER TO THE TELEGRAPH COMPANY'S OFFICE, THE SYMBOL " TWS" APPEARS IMMEDIATELY AFTER THE GOVERNMENT'S OFFICE CALL LETTERS AND MESSAGE NUMBER- -- E.G., " BU40 TWS GOVT"--- AND THE SYMBOL IS FOLLOWED BY SUCH A NOTATION AS "PAID 3," INDICATING THAT THE MESSAGE HAD BEEN TIMED AT THREE MINUTES. ON THE OTHER HAND, THE MESSAGES, CHARGES FOR WHICH WERE QUESTIONED IN THE AUDIT, BEAR SUCH HEADINGS AS "BU46 60 GOVT * * *.' THE NUMBER "60" IN THE MESSAGE CHECK IN THE HEADING JUST QUOTED DENOTES A 60-WORD MESSAGE, IN EXACT CORRESPONDENCE WITH THE FORM PRESCRIBED BY RULE 6 OF F.C.C. NO. 144 FOR A FULL-RATE TELEGRAM. BEARING IN MIND THAT THE MESSAGE CHECK IS REQUIRED BY RULE 20 OF F.C.C. NO. 144 TO BE TRANSMITTED IMMEDIATELY AFTER THE MESSAGE NUMBER, THE APPEARANCE OF THE NUMBER OF WORDS IN THE MESSAGE CHECK WOULD INDICATE DEFINITELY TO THE COMPANY'S OPERATOR THAT TIMED WIRE SERVICE WAS NOT DESIRED, SINCE THERE WOULD BE NO OCCASION TO COUNT THE WORDS IN A TIMED WIRE MESSAGE, THE TARIFF APPLICABLE TO SUCH MESSAGES, F.C.C. NO. 202, HAVING PROVIDED THAT THE NUMBER OF MINUTES CHARGED FOR APPEARED INSTEAD OF THE WORD-COUNT IN THE MESSAGE CHECK.

WITH RESPECT TO VOUCHER 353204, COVERING SERVICES TO THE FORMER UNITED STATES HOUSING AUTHORITY MAINLY DURING MAY, 1941, IT IS NOTED THAT ONE OF THE ORIGINAL TELEGRAMS, THE CHARGES FOR WHICH WERE QUESTIONED IN THE AUDIT, BEARS THE DESIGNATION " STRAIGHT TELEGRAM.' THE REMAINDER OF SUCH TELEGRAMS BEAR NO DESIGNATION OF THE CLASS OF SERVICE DESIRED. IN SUCH CASE THERE IS FOR CONSIDERATION RULE 3, II (F) OF WESTERN UNION TARIFF F.C.C. NO. 176, EFFECTIVE MAY 4, 1941, AS FOLLOWS:

EACH MESSAGE WHEN FILED WITH THE TELEGRAPH COMPANY SHOULD CONTAIN AN INDICATION OF THE CLASS OF SERVICE DESIRED BY THE SENDER. FULL-RATE SERVICE MAY BE INDICATED BY AN APPROPRIATE NOTATION OR BY THE ABSENCE OF ANY NOTATION IN WHICH CASE IT IS ASSUMED THAT FULL-RATE SERVICE IS DESIRED.

IN THE CIRCUMSTANCES DISCLOSED IT IS CLEAR THAT IF THE MESSAGES HERE INVOLVED HAD BEEN SENT BY A PRIVATE PARTY OVER TELEPRINTER EQUIPMENT TO THE TELEGRAPH COMPANY'S OFFICE, THE COMPANY WOULD HAVE BEEN PRECLUDED FROM APPLYING TIMED WIRE SERVICE RATES THERETO, FOR THE REASON THAT, THE MESSAGES HAVING BEEN SENT OVER THE TELEPRINTER IN THE FORM OF FULL RATE TELEGRAMS AND NOT IN THE FORM OF TIMED WIRE MESSAGES, THE APPLICATION OF TIMED WIRE SERVICE RATES WOULD CONSTITUTE A DISCRIMINATION PROHIBITED BY THE ABOVE-QUOTED PROVISIONS OF SECTION 203 (C) OF THE COMMUNICATIONS ACT OF 1934. COMPARE WESTERN UNION TELEGRAPH CO. V. ESTEVE BROS. AND CO., 256 U.S. 566, 571, WHERE THE SUPREME COURT OF THE UNITED STATES SAID:

THE LAWFUL RATE HAVING BEEN ESTABLISHED, THE COMPANY WAS BY THE PROVISIONS OF SECTION 3 OF THE ACT TO REGULATE COMMERCE PROHIBITED FROM GRANTING TO ANYONE AN UNDUE PREFERENCE OR ADVANTAGE OVER THE PUBLIC GENERALLY. FOR, AS STATED IN POSTAL TELEGRAPH-CABLE CO. V. WARREN GODWIN LUMBER CO., SUPRA, 30, THE " ACT OF 1910 WAS DESIGNED TO AND DID SUBJECT SUCH COMPANIES AS TO THEIR INTERSTATE BUSINESS TO THE RULE OF EQUALITY AND UNIFORMITY OF RATES.' IF THE GENERAL PUBLIC UPON PAYING THE RATE FOR AN UNREPEATED MESSAGE ACCEPTED SUBSTANTIALLY THE RISK OF ERROR INVOLVED IN TRANSMITTING THE MESSAGE, THE COMPANY COULD NOT, WITHOUT GRANTING AN UNDUE PREFERENCE OR ADVANTAGE EXTEND DIFFERENT TREATMENT TO THE PLAINTIFFS HERE. THE LIMITATION OF LIABILITY WAS AN INHERENT PART OF THE RATE. THE COMPANY COULD NO MORE DEPART FROM IT THAN IT COULD DEPART FROM THE AMOUNT CHARGED FOR THE SERVICE RENDERED.

THERE REMAINS FOR CONSIDERATION WHETHER THERE IS ANYTHING IN FEDERAL COMMUNICATIONS COMMISSION ORDER NO. 70, DATED MAY 31, 1940, GOVERNING THE PRIORITY AND CHARGES FOR GOVERNMENT COMMUNICATIONS BY TELEGRAPH DURING THE FISCAL YEAR 1941, OVER LINES OF TELEGRAPH COMPANIES SUBJECT TO THE POST ROADS ACT OF 1866, 14 STAT. 221, WHICH WOULD REQUIRE A DIFFERENT CONCLUSION IN THE CASE OF THESE TELEGRAMS FILED BY THE GOVERNMENT OVER TELEPRINTER FACILITIES. SAID ORDER PROVIDES, IN PERTINENT PART:

1. THAT, UNLESS SUBSEQUENTLY CHANGED BY ORDER OF THE COMMISSION, DURING THE PERIOD JULY 1, 1940 TO JUNE 30, 1941, BOTH INCLUSIVE, TELEGRAPH COMMUNICATIONS BETWEEN THE SEVERAL DEPARTMENTS OF THE GOVERNMENT AND THEIR OFFICERS AND AGENTS, IN THEIR TRANSMISSION OVER THE LINES OR CIRCUITS OF ANY TELEGRAPH COMPANY SUBJECT TO THE POST ROADS ACT, APPROVED JULY 24, 1866, 14 STAT. 221, AS AMENDED, U.S.C. TITLE 47, SHALL HAVE PRIORITY OVER ALL OTHER BUSINESS AND SHALL BE SENT AT CHARGES NOT EXCEEDING SIXTY (60) PERCENTUM OF THE CHARGES APPLICABLE TO COMMERCIAL COMMUNICATIONS OF THE SAME CLASS, OF THE SAME LENGTH, AND BETWEEN THE SAME POINTS IN THE UNITED STATES WHICH SHALL BE DEEMED HEREIN TO INCLUDE ALASKA, EXCEPT THAT THE CHARGES FOR SERIAL MESSAGES AND TIMED WIRE SERVICE SHALL NOT EXCEED EIGHTY (80) PERCENTUM OF THE CHARGES APPLICABLE TO LIKE COMMERCIAL SERIAL MESSAGES AND TIMED WIRE SERVICE BETWEEN THE SAME POINTS IN THE UNITED STATES; PROVIDED, HOWEVER, THAT THE MINIMUM CHARGE FOR DAY MESSAGES SHALL BE 25 CENTS, FOR DAY LETTERS 45 CENTS, FOR NIGHT MESSAGES 20 CENTS, FOR NIGHT LETTERS 30 CENTS, FOR SERIAL MESSAGES 54 CENTS, AND FOR TIME WIRE SERVICE 45 CENTS, UNLESS ANY OF THESE AMOUNTS SHALL BE GREATER THAN THE MINIMUM FOR A CORRESPONDING COMMERCIAL MESSAGE IN WHICH EVENT THE PROVISION SET FORTH IN PARAGRAPH 5 BELOW SHALL APPLY; AND PROVIDED, FURTHER, THAT A DAY LETTER SHALL BE CHARGED FOR AS A DAY LETTER OR A DAY MESSAGE, ACCORDING TO WHICH OF THESE CLASSIFICATIONS SHALL PRODUCE THE LOWER CHARGE FOR THE PARTICULAR MESSAGE; AND THAT AN OVERNIGHT MESSAGE SHALL BE CHARGED FOR AS A NIGHT MESSAGE OR AS A NIGHT LETTER, ACCORDING TO WHICH OF THESE TWO CLASSIFICATIONS SHALL PRODUCE THE LOWER CHARGE FOR THE PARTICULAR MESSAGE; AND PROVIDED FURTHER, THAT WHEN THE FIRST SECTION OF A SERIAL MESSAGE IS NOT FOLLOWED BY ANOTHER ON THE SAME DAY, IT SHALL BE CHARGED FOR AS A DAY MESSAGE; THAT WHEN MORE THAN ONE SECTION IS FILED ON THE SAME DAY, THE SECTIONS SHALL BE CHARGED FOR AT THE SERIAL RATES OR EACH SECTION SHALL BE CHARGED FOR AS A DAY MESSAGE, ACCORDING TO WHICH OF THESE CLASSIFICATIONS SHALL PRODUCE THE LOWER TOTAL CHARGE; AND THAT TIMED WIRE MESSAGES SHALL BE CHARGED FOR AS TIMED WIRE SERVICE OR AS DAY MESSAGES, ACCORDING TO WHICH OF THESE CLASSIFICATIONS SHALL PRODUCE THE LOWER CHARGE; AND PROVIDED, FURTHER THAT THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY ONLY TO GOVERNMENT MESSAGES FILED AS DAY MESSAGES, DAY LETTERS, NIGHT MESSAGES, NIGHT LETTERS, SERIAL MESSAGES OR TIMED WIRE COMMUNICATIONS.

5. THAT IN NO CASE SHALL THE CHARGE FOR A GOVERNMENT MESSAGE EXCEED THE CHARGE FOR A CORRESPONDING COMMERCIAL MESSAGE; * * *

6. THAT ALL GOVERNMENT COMMUNICATIONS SHALL HAVE PRIORITY OVER ALL OTHER BUSINESS, AS ABOVE PROVIDED, AND SHALL, UNLESS OTHERWISE PROVIDED HEREIN, BE SUBJECT TO THE CLASSIFICATIONS, PRACTICES AND REGULATIONS APPLICABLE TO THE CORRESPONDING COMMERCIAL COMMUNICATIONS.

WHILE THE ABOVE-QUOTED PARAGRAPH 1 OF ORDER NO. 70 PROVIDES THAT TIMED WIRE MESSAGES SHALL BE CHARGED FOR AS TIMED WIRE SERVICE OR AS DAY MESSAGES, ACCORDING TO WHICH OF THESE CLASSIFICATIONS SHALL PRODUCE THE LOWER CHARGE, THERE IS NO PROVISION IN SAID ORDER THAT DAY MESSAGES -- OR MESSAGES OF ANY CLASSIFICATION OTHER THAN TIMED WIRE MESSAGES--- SHALL BE CHARGED FOR AS TIMED WIRE SERVICE. ON THE CONTRARY, PARAGRAPH 6 OF SAID ORDER SPECIFICALLY PROVIDES THAT ALL GOVERNMENT COMMUNICATIONS SHALL, UNLESS OTHERWISE PROVIDED THEREIN, BE SUBJECT TO THE CLASSIFICATIONS, PRACTICES AND REGULATIONS APPLICABLE TO THE CORRESPONDING COMMERCIAL COMMUNICATIONS. IN VIEW OF SUCH PROVISIONS, PROMULGATED BY THE BODY CHARGED BY LAW WITH THE FIXING OF RATES FOR THE TRANSMISSION OF GOVERNMENT TELEGRAMS, AND OF THE FACT THAT THE GOVERNMENT, IN FILING THE MESSAGES HERE INVOLVED, DID NOT USE THE PROCEDURE AVAILABLE UNDER THE TELEGRAPH COMPANY'S RULES FOR OBTAINING TIMED WIRE SERVICE AND, HENCE, DID NOT GIVE THE COMPANY ANY OPPORTUNITY TO TIME THE MESSAGES CONTEMPORANEOUSLY WITH THE TRANSMISSION THEREOF, THERE WOULD BE NO AUTHORITY AT THIS TIME FOR APPLYING A TIME-COUNT INSTEAD OF A WORD-COUNT IN COMPUTING THE CHARGES TO BE MADE THEREFOR UNDER THE PROVISIONS OF ORDER NO. 70. IN THE LATTER RESPECT, AS WELL AS IN THE APPLICABLE TARIFF PROVISIONS, THIS CASE IS DISTINGUISHABLE FROM THOSE CONSIDERED IN 1 COMP. GEN. 402 AND 20 ID. 546, SINCE IN SUCH EARLIER CASES BOTH THE RATE CLAIMED BY THE TELEGRAPH COMPANY AND THAT APPLIED IN THE AUDIT WERE BASED UPON A WORD-COUNT, WHICH COULD BE MADE AT ANY TIME AFTER THE MESSAGE HAD BEEN FILED.

ACCORDINGLY, THE PAYMENTS MADE ON VOUCHERS 3639, 3640 AND 353204 WILL NOT BE QUESTIONED FURTHER ON THE GROUND OF THE APPLICATION OF TIMED WIRE SERVICE RATES TO MESSAGES NOT FILED BY THE GOVERNMENT AS TIMED WIRE MESSAGES.