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).