BNUMBER:  B-280698 
DATE:  January 12, 1999
TITLE: [Letter], B-280698, January 12, 1999
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Matter of:Federal Communications Commission - Installation of 
Integrated
          Services Digital Network Lines

File:     B-280698

Date:     January 12, 1999

DIGEST

Section 1348(a)(1) of title 31, United States Code, prohibits the use 
of appropriated funds for the installation of telephones and for 
charges for telephone service from private residences.  We have not 
applied 31 U.S.C.  sec.  1348 where the telephone service is one of 
restricted use or involves adequate safeguards and the separate 
service is essential.  Accordingly, we would not object to the Federal 
Communications Commission's (FCC) installation of dedicated Integrated 
Services Digital Network (ISDN) lines to transmit data from computers 
in the private residences of the FCC Commissioners to the agency's 
local area network.  The FCC has imposed adequate safeguards to 
prevent private use of separate ISDN lines and to protect 
communications to and from the FCC Commissioners.

DECISION

The Managing Director, Federal Communications Commission (FCC), 
requests an advance decision, under 31 U.S.C.  sec.  3529(a), on whether 
the prohibition in 31 U.S.C.  sec.  1348(a)(1) applies to the installation 
of dedicated Integrated Services Digital Network (ISDN) lines[1] in 
the residences of FCC Commissioners.  Section 1348(a)(1) prohibits the 
use of appropriations "to install telephones in private residences or 
for tolls or other charges for telephone service from private 
residences."  For the reasons set forth below, we conclude that 
section 1348(a)(1) does not apply to FCC's proposed installation of 
dedicated ISDN lines in the Commissioners' residences.  Accordingly, 
we would not object to FCC's use of appropriated funds to pay for the 
installation of the ISDN lines if FCC determines that it is a 
necessary expense of its appropriation.      

Background

The FCC, headed by five Commissioners, is an independent agency 
regulating interstate and international communications by radio, 
television, wire, satellite, and cable.  The Commissioners review 
action taken by FCC staff, pursuant to delegated authority, on their 
own motion or upon petition for such review by aggrieved parties.  47 
C.F.R.  sec.  0.5(c).  

FCC states that the Commissioners, as Presidential appointees, are on 
duty 24 hours a day, and are expected to conduct FCC business at all 
hours of the day or night.  Heavy workloads, extensive travel 
schedules, and pressing deadlines require that the Commissioners 
conduct official business outside of the FCC's normal workday.  FCC 
proposes to install dedicated ISDN lines in Commissioners' residences 
to enable them to edit legal memoranda, draft decisions, prepare 
speeches, and receive electronic mail transmitted to them directly 
from the FCC's offices at all hours of the day and on weekends.  FCC 
explains that the ISDN lines will permit only data transmission 
between computers in the Commissioners' private residences and the 
agency's local area network (LAN), and that the ISDN lines have data 
encryption that provides security for the information transmitted to 
and from the Commissioners.  FCC also states that it will configure 
these lines so that they cannot be used to support voice telephone 
service.  

Analysis

Section 1348(a)(1) of title 31, United States Code, prohibits the use 
of appropriations for the installation of "telephones in private 
residences or for tolls or other charges for telephone service from 
private residences."  We have never specifically addressed whether a 
telephone line used exclusively for data transmission constitutes 
"telephone service" within the meaning of section 1348(a)(1).  A 
number of our decisions appear to assume that all telephone lines, 
whether for voice or data transmission, fall within the coverage of 
section 1348(a)(1).  See, e.g., 65 Comp. Gen. 835 (1986) (secured 
telephone lines for IRS criminal investigators); B-262013, Apr. 8, 
1996 (installation of three telephone lines in a private residence for 
a telephone, computer and facsimile machine); B-247857, Aug. 25, 1992 
(telephone lines for computer data transmission between private 
residence and a government office).  Whether this is a correct 
assumption we need not resolve here since FCC's proposal falls within 
one of our recognized exceptions to the application of section 
1348(a)(1). 

A 1912 decision of the Comptroller of the Treasury, issued shortly 
after the enactment of the prohibition, explained that the "plain 
intent [of the prohibition] was that the Government should not be 
chargeable with the cost of private and personal messages of 
[government] employees."  63 MS Comp. Dec. 575 (1912), 

quoted in 61 Comp. Gen. 214, 216 (1982).  At that time, according to 
the Comptroller, "a large number of public officers here in the 
District of Columbia had installed in their private residences 
telephones at government expense under the guise of their use for 
public purposes, when in truth the government had provided them with 
sufficient telephones in their public offices to transact all the 
public business."  61 Comp. Gen. at 216.  Congress enacted the statute 
to stop public officers from obtaining personal telephone service at 
government expense.  However, as the Comptroller recognized in 1912, 
Congress did not pass the prohibition to require government officers 
and employees to bear the expense of telephone service on public 
business.  We have applied the statute, therefore, to prevent the 
misuse of government resources for private or personal business, but 
not to obstruct the public interest where there is an adequate 
justification of necessity and adequate safeguards to prevent the 
abuse targeted by Congress in 1912.    

We have identified two instances where the prohibition does not apply.  
First, the prohibition does not apply to the installation of a 
telephone in government-owned quarters serving both as a residence and 
as an office.  See, e.g., 53 Comp. Gen. 195 (1973) (installation of 
telephone in Army barracks).  The second general circumstance is when 
the telephone service is one of restricted use or involves adequate 
safeguards and separate telephone service is essential.  
65 Comp. Gen. at 837; B-223837, Jan. 23, 1987.  The FCC's proposal 
falls within this second category; hence the statutory prohibition is 
inapplicable. 

The nature of FCC's operations, that is, the regulation of the 
country's communications systems, requires that FCC protect the 
information and other data contained in the various legal memoranda, 
draft decisions and other documents transmitted to and from the 
Commissioners.  Where the interests of the government in ensuring 
secured communications dictate in favor of separate telephone service, 
section 1348(a)(1) will not apply.  61 Comp. Gen. at 214.  For 
example, to maintain the security of information regarding 
confidential tax investigations, the Internal Revenue Service (IRS) 
needed to install separate, secured telephone lines in the residences 
of IRS criminal investigators who were supplied portable computers to 
communicate with the district office computer system.  65 Comp. Gen. 
at 835.  Similarly, the National Mediation Board needed to install 
dedicated telephone lines to protect communications between mediators 
located throughout the United States and its Washington, D.C. 
headquarters.  B-247857, Aug. 25, 1992.  See also 32 Comp. Gen. 431 
(1953) (installation of special telephone in the residence of the 
Pearl Harbor Fire Marshal); B-223837, Jan. 23, 1987 (installation of 
telephones in residences of high level NRC officials).   

In regulating the country's communications systems, FCC issues 
licenses authorizing television and radio service, as well as revokes 
licenses previously 

issued, performs policy and rulemaking functions and administers the 
enforcement program for all mass media services, and ensures that 
telephone companies provide voice, data and other transmission 
services at just and reasonable and affordable prices in a 
nondiscriminatory manner.  In any communications to and from 
Commissioners, in the form of legal memoranda, draft decisions or 
otherwise, addressing the assignment and enforcement of individuals' 
legal rights and responsibilities, FCC must protect against premature 
and inappropriate disclosure of FCC's legal strategies and 
determinations, as well as any individuals' proprietary information 
that factors into its strategies and determinations.  According to 
FCC's Managing Director, ISDN lines, unlike ordinary telephone lines, 
permit the data encryption necessary to ensure security.

The FCC also has demonstrated that adequate safeguards will exist to 
preclude personal use.  Employees using the National Mediation Board's 
communications system, for example, could dial only the headquarters' 
electronic mail system.  
B-247857, Aug. 25, 1992.  Other safeguards include subjecting 
communications to periodic audit and providing for direct billing to 
the government.  See generally  
65 Comp. Gen. at 838.  The FCC explains it will configure the 
dedicated ISDN lines for use only to transmit data to the agency's 
LAN.  We consider this a sufficient safeguard to prevent private, 
personal use of the ISDN lines.  

In closing, we note that the Managing Director, pointing out the 
nature of the Commissioners' workloads, travel schedules and 
deadlines, explains that the ISDN lines "will enable the Commissioners 
to edit legal memoranda, draft decisions, prepare speeches and receive 
e-mails that are transmitted to them directly from the FCC's office, 
night or day, or weekends, etc."  FCC letter, Aug. 14, 1998.  In the 
past, we have held that section 1348(a)(1) prohibited the use of 
appropriations to fund the installation of separate telephone service 
in a private residence merely to minimize the burden official 
telephone calls might impose on the availability of the official's 
private telephone.  See, e.g., 61 Comp. Gen. at 217.  In 1995, 
however, the Congress enacted the necessary authority for agencies to 
install telephone lines in the residences of employees permitted to 
work at home.  Treasury, Postal Service, and General Government 
Appropriations Act for Fiscal Year 1996, Pub. L. No. 104-52,  sec.  620, 
109 Stat. 468, 501 (1995); 31 U.S.C.  sec.  1348 note.  Section 620 makes 
appropriated funds available for this purpose provided that the head 
of the agency "certifies that adequate safeguards against private 
misuse exist, and the service is necessary to support the agency's 
mission."  While section 620, by its terms, does not address 
Presidentially-appointed officers such as the FCC Commissioners, it 
would be anomalous for us to overlook the public policy established in 
section 620 and apply the section 1348(a)(1) prohibition in a manner 
to preclude government officials who are on duty 24 hours from the 
same conveniences as other government employees.

Accordingly, we do not view 31 U.S.C.  sec.  1348 as applicable to FCC's 
use of appropriated funds for the installation of ISDN lines in 
Commissioners' residences.

Comptroller General
of the United States              

1."[A]n ISDN is a network which is designed and constructed to provide 
a wide range of telecommunication and information services and to 
transport electrical signals in digital, rather than analog, form."  
Integrated Services Digital Networks (ISDN), 94 FCC 2d 1289 (1983).