Request By:
Chief Billy R. Claypool
Winchester Police Department
P.O. Box 12
Winchester, KY 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your inquiry as to whether an automatic tone warning device (beep-tone device) must be operating any time a two-way telephone conversation is being recorded. Your letter states that South Central Bell has refused to remove the beep-tone device from the police department's telephone although you have requested it do so.
The Federal Communications Commission (FCC) in 1948 required the use of the beep-tone when certain two-party telephone calls were being recorded. In the Matter of Use of Recording Devices in Connection with Telephone Service, 11 FCC 1033 (1947), 12 FCC 1005 (1947), 12 FCC 1008 (1948). The FCC, through these decisions, determined that it was in the public interest to allow the recording of telephone conversations but that a party's right to privacy required that he have knowledge that the conversation was being recorded. To allow recording while at the same time protecting individual privacy, the commission required that the recording of interstate and foreign message toll service (MTS - the cost of the call is based on the length of the call, even for so-called "local" calls) be subject to the following conditions:
1. The use of recording devices is to be accompanied by adequate notice to all parties;
2. Such notice was to be given by an automatic tone warning device (beeper);
3. Such beep-tone device must be furnished, installed and maintained by the company furnishing telephone service;
4. The recording device must also be furnished, installed and maintained by the company;
5. The recording device must be capable of being physically disconnected or connected to the telephone line or switched on or off at the will of the user (when disconnected or turned off the beep-tone would not sound but, also, the conversation could not be recorded) .12 FCC 1005 and 12 FCC 1008. Also, inductive or accoustic type recorders (not directly connected to the telephone line) were not to be used and the companies were to undertake a publicity campaign to inform the public of the meaning of the beep-tone.
12 FCC 1005 required that all tariffs of carriers on file with the Commission preventing the use of recording devices be cancelled or rescinded. 12 FCC 1008 required that new tariffs be filed which provided for the use of recording devices which met the above-listed five requirements. Thus, the FCC, by way of tariff regulations, required the use of beep-tones when recording any two-way interstate or foreign MTS or WATS (Wide Area Telephone System) service or facility. This requirement did not apply to intrastate calls or interstate two-way private line conversations which did not use MTS or WATS service or facilities.
The requirement of a beep-tone imposed by the FCC rulings of 1947 and 1948, supra, served to prohibit all recording not using a particular warning method, whether consensual or non-consensual. In the Matter of Recording Devices in Connection with Telephone Service, 67 FCC 2d 1392, at 1398 (1978).
This requirement has become subject to several exceptions since it was first imposed. These exceptions when the beep-tone is not required are:
1. When used by an FCC licensed broadcast station customer for recording of two-way telephone conversations solely for broadcast over the air;
2. When used by a broadcast network composed exclusively of FCC licensed stations for broadcast over the air by a licensed station;
3. When used by the Secret Service in protecting the President of the United States, his immediate family, or the White House and its grounds;
4. When used for recording at the Department of Defense Command Centers of emergency communications transmitted over the Department of Defense's private line system when connected to MTS or WATS services or facilities.
In 1978 the FCC in 67 FCC2d 1392 proposed a new addition to the existing tariff regulations found in 47 CFR, Part 61. This new regulation would completely prohibit the recording of all interstate two-way telephone calls (including private-line conversations) without consent of all parties to the conversation except:
(1) Incoming calls made to numbers publicized and actually used for emergency police, emergency fire and emergency health care facilities;
(2) Incoming calls made to licensed broadcast stations for "live" broadcast.
(3) Incoming calls that are threatening, obscene, harassing or for other unlawful purposes, is defined in 47 USC Sec. 223;
(4) . . . outgoing calls made in response to (1) or (3) above.
This regulation has not yet been adopted. If it is adopted it will altogether end the need for the beep-tone device and any non-consensual recording that may be done must be of conversations within the four exceptions. The federal law as it stands now and, specifically, as it relates to your question, provides that the beep-tone device be used whenever a two-way interstate conversation, made over a MTS or WATS line or facility, is recorded. This, as mentioned above, would not apply to in-state calls or interstate calls made over a private line. Very seldom would the FCC rule be applicable to any calls to or from your police department.
KRS 278.040 establishes the Utility Regulatory Commission (URC) to enforce the provisions of KRS Chapter 278 with respect to non-energy utilities (of which a telephone company is one) to insure they conform with all rules & regulations established by the URC, and to enforce the laws of the Commonwealth. Rules and regulations may be made by the URC to implement the provisions of KRS Chapter 278, to investigate the methods and practices of the utilities and to insure lawful compliance with all laws, rules and regulations. KRS 278.040(3). Pursuant to the provisions of KRS Chapter 278, 807 KAR Chapter 25 has been promulgated to establish regulations governing the utilities subject to the URC's control. Pursuant to KRS 278.160(1) and KRS 278.040(3), 307 KAR 25.030, section 1, has been issued and requires a utility to file a tariff containing all of its rate schedules and conditions on service established by the utility with the URC for approval. Also, KRS 278.030(2) allows a utility to establish reasonable rules governing the conduct of its business and the conditions under which it shall be required to render service.
Pursuant to KRS 278.030(2), 807 KAR 25:030 Sec. 1 and 807 KAR 25:040 Sec. 8 the South Central Bell Telephone System and General Telephone of Kentucky have filed tariffs with the URC containing the rules and conditions governing their rendition of service to the public. These conditions would be, in the absence of a statutory provision otherwise (and there is none presently in force), would be as applicable to police departments as to any other telephone company customer. Both South Central Bell's and General Telephone's tariffs contain substantially identical provisions governing the use of recording equipment by their customers. These provisions require the use of a beep-tone device if a recording is being made of any two-party telecommunications. URC Tariff 1A, Section A15.1.4 (Oct. 29, 1980) (South Central Bell), URC Tariff 3, Section 15, Provision 1.4 (November 17, 1980) (General Telephone) . A telecommunication as used in the tariff provisions includes exchange (all local and long distance telephone calls), MTS and WATS line calls. The beep-tone requirement is subject to the same four exceptions as is the FCC rule (i.e. Secret Service, Department of Defense and broadcast station uses), none of which allows discontinuing the use of beep tones when a police station records its two-party calls. For violating a provision of the companies' tariffs a customer may have his service disconnected. General Telephone Tariff Sec. 15, 1.6; South Central Bell Tariff Sec. A15.1.6.
In conclusion, it is our opinion that the police department must use the beep-tone warning device when recording any two-way telephone calls or the telephone company may discontinue service pursuant to its tariff provisions as filed with the Kentucky Utility Regulatory Commission.