Petition — Strouth v. Federal Communications Commission

Supreme Court brief1980

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FILED

JUL 10 1980

no. 80-42

RODAK, JR., CLERW

IN THE ,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

HOWARD STEVEN STROUTH,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION,

and

UNITED STATES OF AMERICA,

Respondents,

and

WESTERN UNION TELEGRAPH COMPANY,

Intervenor.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

WALTER T. CHARLTON

CHARLTON & TUPLING

2011 Eye Street, N.W.

Suite 303

Washington, D.C. 20006

Attorney for Petitioner

PIE ALLE TERE EE

Washington, D.C. ¢ THIEL PRESS © (202) 638-4521

‘

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Federal Communications Com-

mission's (FCC) action in reversing an award of

nominal damages by the "Trier of Fact" (the

Administrative Law Judge) when violations were

proven, violated the public trust and the FCC's

mandate asthe regulatory agency for confidential

telegraphic communications.

II. Whether petitioner's rights of procedural

due process were violated by the informal admon-

ition of the United States Court of Appeals for the

District of Columbia Circuit when such admon-

ition was used as an excuse for not granting

monetary relief or costs to the petitioner.

III. Whether the FCC violated the Supreme

Court's mandate as to standards applicable to

evidence on damages. |

IV. Whether an award of punitive damages,

attorney's fees and costs is required by the

Communications Act and circumstances of this ~

case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW... i

ews OF COUNTERING S < % «6 8a Sone ii

Thee OY" AUTHOR Lime 6 6 8 ee ae eS iii

Se EPNONS SRICEI WY 86 ee 8.6 ee ows 2

Pa) Bs eke 0 8 ew 0 eRe ee 3

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED... 4

STATEMENT OF THE CASE. ....... 8

SUMEEUIC LOIN DELAIW.« 0 6 6's ees ea 12

REASONS FOR GRANTING THE WRIT... 12

I. The FCC's Action in Reversing

an Award of Nominal Damages

by the ''Trier of Fact'' (the ALJ)

When Violations were Proven,

Violated the Public Trust and

the FCC's Mandate as the Regu-

latory Agency for Confidential

Telegraphic Communications. 12

II. Petitioner's Rights of Proce-

dural Due Process Were Vio-

lated by the Informal Admoni-

tion of the United States Court

of Appeals for the District of

Columbia Circuit When Such

Admonition was Used as an

Excuse for Not Granting Mon-

etary Relief or Costs to the

Petitioner. 14

iii

Page

III. The FCC Violated the

Supreme Court's Mandate

as to Standards Applicable

to Evidence on Damages. 16

IV. An Award of Punitive

Damages, Attorney's Fees

and Costs Was Erroneously

Denied to Petitioner. 18

CARO RAINRIN se ee tee whee ewe 20

gg Sh > a eae re ae ae ee aa

TABLE OF CASES AND OTHER AUTHORITIES

Page

CASES:

Day v. Woodworth, 13 How. 363,

2 ee ee eG. gp ie 8: ee. 8 8 4

*Louisville & Nashville R.Co.

v. Ohio Valley Tie Co.

242 U.S. 288, 37 S.Ct.

Ree Ween 6s ele * js a Me eae ee, LT, -8S

New York C. & H.R.R. Co. v. U.S.;

Cor. Ses See eae) 6 we 8 6 ee es 4

Time, Inc. v. Firestone,

4241). S. 4466, 96 S.Ct. 068 (976). ... 4

OTHER AUTHORITIES:

Constitution

Amendment [V] .....-ee-. i ee eee

_ Statutes |

18U.8.C. § 2511(1)(c)(d) oe ee te ear ae ee 13

28U.8.C. § 33420) . 2. 1 2 cco ew . 8

47U.S.C. § 206... 5,8, 9,13,16,18,19

SF USC. § SOT ace oce 6 sO O, 38,388,289

ee a | Eee ae ae a ee ee

*/ Cases and other authorities principally relied

upon are marked with an asterisk.

ek a ee os eT

ME ee kk 6

ee ee, OO su Piss ith oS ee

Code of Federal Regulations 47 CFR

§ 1.351. Rules of Evidence. .... 8

In The

SUPREME COURT OF THE UNITED STATES

3 OCTOBER TERM 1979

No.

HOWARD STEVEN STROUTH,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION,

and

UNITED STATES OF AMERICA,

Respondents,

and

WESTERN UNION TELEGRAPH COMPANY,

Intervenor.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Howard Steven Strouth, respectfully petitions

this Court for a writ of certiorari to review the

final judgment of the Court of Appeals, docketed

March 12, 1980 which, ina "not to be published"

opinion affirmed the final decision of the Federal

Communications Commission (FCC or the Com-

mission).

OPINIONS BELOW

Initial Opinion of Administrative Law Judge

(Released 10/28/77 See Appendix pp 15a

through 95a).

This matter came on for hearing before the

Administrative Law Judge (ALJ) in a court room

at the FCC in Washington, D.C. The ALJ:

1. Found that three separate violations of

the confidentiality of petitioner's telegram had

occurred.

2. Found that numerous other violations of

the secrecy provisions of the Communications Act

(47U.S.C. § 1, et seq.) (the Act) had occurred

both before and after the petitioner's complaint.

3. Found that Western Union's controls over

secret communications were ''grossly wanting in

the performance of its grave statutory duty" (p.

50a, §64). Substantial and numerous instances of

gross negligence and violations of criminal and

civil law were discussed in the opinion.

4. Awarded the petitioner $18.00 in nom-

inal damages.

5. Misapplied rules of evidence on unre-

butted evidence of damages, including admissions

of Western Union's counsels, and as a conse-

quence, no actual or consequential damages were

awarded.

6. No punitive damages were awarded des-

pite the fact that there was substantial evidence

that Western Union was continuing to make un-

lawful disclosures of secret communications,

7. No costs or attorney's fees were award-

ed despite the provisions of 47 USC §206 which

provides for the award of such costs and fees.

Final Opinion of the Federal Communications

Commission and of the Review Board

(Review Board Decision Released 4/3/78; FCC

Order Denying Review released 10/5/78.) (See

Appendix pp. 96a through 119a).

The petitioner appealed the ALJ's ruling on

damages, punitive damages, costs and attorney's

fees to the review board. The review board

opinion, whichwas adoptedas the final opinion of

the FCC, upheld all the ALJ's factual findings and

then removed the award of even nominal damages

to the petitioner, ''since it serves no purpose"

(p. 105, § 9) and as a consequence dismissed the

complaint.

The Judgment of the United States Court of

Appeals for the District of Columbia Circuit.

(Docketed March 12, 1980, See Appendix p 144a)

The United States Court of Appeals for the

District of Columbia Circuit by opinion filed

March 12, 1980 merely affirmed the final ruling

of the FCC,

No other orders are relevant to this Petition

and none have been included. However, an ex-

change of letters requested by the U.S. Court of

Appeals at oral argument is relevant and have

been included as Attachments A, B, and C.

JURISDIC TION

(i) The United States Court of Appeals filed

its judgment and opinion docketed on March

12, 1980. An extension for filing of this

Petition was granted by this Court until

July 7, 1980.

(ii) Petitioner sought no rehearing.

(iii) Petitioners invoke the certiorari juris-

diction of this court under 28U.S.C.

§ 1254(1) to review the important federal

and constitutional questions presented. 47

U.S.C. § 402(j) also allows appeal to the

Supreme Cort by this petition for certiorari.

Cases supporting jurisdiction include:

Louisville & Nashville R. Co. v. Ohio

Valley Tie cas 242 U.S. 286, yy Mim F

120 Gore) New York C. & H.R.R. Co.

v. U.S., 481, 20°S. Ct. 304 (1905); Time,

Inc. v. Firestone, 424 U.S. 448, 96 5.Ct.

1 an ay v. Woodworth, 13 How.

363, 14 L.Ed. 1 (1851).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution

Amendment [V.]

No person shall be‘held to answer for a cap

ital, or otherwise infamous crime, unless ona

presentment or indictment of a Grand Jury, ex-

cept in cases arising inthe land or naval forces,

or in the Militia, when in actual service in time

of War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

delf, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

Statutes

47U.S.C. § 206.

Carriers' liability for damages

In case any common carrier shall do, ‘or

cause or permit to be done, any act, matter,

or thing in this chapter prohibited or declared

to be unlawful, or shall omit to do any act,

matter, or thing in this chapter required to be

done, suchcommon carrier shall be liable to the

person or persons injured thereby for the full

amount of damages sustained in consequence of

any such violation of the provisions of this

chapter, together with a reasonable counsel or

attorney's fee, to be fixed by the court in every

case of recovery, which attorney's fee shall be

taxed and collected as part of the costs in the

case. June 19, 1934, c. 652, Title II, § 206,

48 Stat. 1072.

47U.S.C. § 207.

Recovery of damages

Any person claiming to be damaged by any

common carrier subject to the provisions of this

chapter may either make complaint to the Com-

mission as hereinafter provided for, or may

bring suit for the recovery of the damages for

which such common carrier may be liable under

the provisions of this chapter, in any district

court of the United States of competent jurisdic-

tion; but such person shall not have the right to

pursue both such remedies. June19, 1934, c.

652, Title II, § 207, 48 Stat. 1073.

47U.S.C. § 605

Unauthorized publication

or use of communications

Except as authorized by chapter 119. Title

18, no person receiving, asisting in receiving,

transmitting, or assisting in transmitting, any

interstate or foreign communication by wire or

radio shall divulge or publish the existence,

contents, substance, purport, effect, or mean-

ing thereof, except through authorized channels

of transmission or reception. (1) to any person

other thanthe addressee, his agent, or attorney,

(2) to a person employed or authorized to forward

such communication to its destination, (3) to

proper accounting or distributing officers of the

various communicating centers over which the

communication may be passed, (4) to the master

of a ship under whom he is serving, (5) in res-

ponse to a subpena issued by a court of compe-

tent jurisdiction, or (6) on demand of other law-

ful authority. No person not being authorized

by the sender shall intercept any radio communi-

cation and divulge or publish the existence, con-

tents, substance, purport, effect, or meaning

of such intercepted communication to any person.

No person not being entitled thereto shall receive

or assist in receiving any interstate or foreign

communication by radio and use such communica-

tion (or any information therein contained) for his

own benefit or for the benefit of another not en-

titled thereto. No person having received any

intercepted radio communication or having be-

come acquainted with the contents, substance,

purport, effect, or meaning of such communi-

cation (or any part thereof) knowing that such

communication was intercepted, shall divulge

or publish the existence, contents, substance,

purport, effect, or meaning of such communica-

tion (or any part thereof) or use such communi-

cation (or any information therein contained)

for his own benefit or for the benefit of another

not entitled thereto. This section shall not

apply to the receiving, divulging, publishing,

or utilizing the contents of any radio communi-

cation which is broadcast or transmitted by

amateurs or others for the use of the general

public, or which relates to ships in distress.

As amended June 19, 1968, Pub. L. 90-351,

Title Il, § 803, 82 Stat. 223.

49 U.S.C. § 8

Liability in damages to persons

injured by violation of law

In case any common carrier subject to the

provisions of this chapter shall do, cause to be

done, or permit to be done any act, matter, or

thing in this chapter prohibited or declared to be

unlawful, or shall omit to do any act, matter,

or thing inthis chapter required tobe done, such

common carrier shall be liable to the person or

persons injured thereby for the full amount of

damages sustained in consequence of any such

violation of the provisions of this chapter, to-

gether with a reasonable counsel or attorney's

fee, to be fixed by the court in every case of

recovery, which attorney's fee shall be taxed

and collected as part of the costs in the case. -

Feb. 4, 1887, c. 10 Pt. I, § 8 24 Stat. 382;

Aug. 9, 1935, c. 498, § 1, 49 Stat. 543.

49 U.S.C. § 9

Remedies of persons damaged;

election; witnesses

Any person or persons claiming to be

damaged by any common carrier subject to the

provisions of this chapter may either make

complaint to the Commission as hereinafter

provided for, or may bring suit in his or their

own behalf for the recovery of the damages for

which such common carrier may be liable under

the provisions of this chapter in any district

court of the United States of competent jurisdic-

tion; but such person or persons shall not have

the right to pursue both of said remedies, and

must in each case elect which one of the two

methods of procedure herein provided for he or

they will adopt. In any such action brought for

the recovery of damages the court before which

the same shall be pending may compel any direc-

tor, officer, receiver, trustee, or agent of the

corporation or company defendant in such suit

to attend, appear, and testify in such case, and

may compel the production of the books and

papers of such corporation or company party to

any such suit.

As amended Oct. 15, 1970, Pub. L. 91-452,

Title II, § 243(a), 84 Stat. 931.

Code of Federal Regulations 47 CFR

§ 1.351. Rules of Evidence

Except as otherwise provided in this sub-

part, the rules of evidence governing civil

proceedings in matters not involving trial by jury

in the courts of the United States shall govern

formal hearings. Such rules may be relaxed if

the ends of justice will be betterserved by so

doing.

STATEMENT OF THE CASE

The petitioner, acting pro se, had approach-

ed the FCC informally seek! ng advice on how to

proceed against the Western Union Telegraph

Company which, the petitioner alleged, had il-

legally disclosed the message and billing records

relating to a telegram.

An FCC clerk referred the petitioner to an

FCC attorney who advised the petitioner of reme-

dies available under the Communications Act (47

U.S.C. §§ 206 and 605) which sections provide

remedies for violations of the secrecy provisions

of the act, including ‘for the full amount of dam-

ages sustained in consequence of any such vio-

lation"... and "...attorney's fee shall be taxed

and collected as part of the costs in the case..."'.

(47 U.S.C. § 206). ‘

Based upon the advice of an FCC attorney,

the petitioner, still acting pro se, while under

the impression he was proceeding in a forum

which had the power to grant full relief, on Sep-

tember 16, 1975, filed a complaint alleging vio-

lations of the Communications Act, 47 U.S.C.

§ 605.

The actof filing the complaint with the FCC

according to the provisions of 47U.S.C. § 207

foreclosed petitioner's suit ina United States

District Court, a point that is crucial to the due

process argument which follows. The petitioner

was never informed bythe FCC attorney that any

substantial rights had been waived by his elec-

tion of remedies.

The FCC by order released June 9, 1976,

‘set the matter for hearing, assigning the

‘Common Carrier Bureau of the FCC to represent

the public interest and the FCC in prosecuting

the action. The petitioner at this time continued

to believe no separate counsel was necessary.

While preparing for the hearing, the peti-

tioner was advised by the FCC that perhaps it

would be more appropriate if he obtained counsel

to represent his interests in the trial before the

Administrative Law Judge since somewhat com-

plex matters of evidence, procedure and law

were to be involved. Following this advice the

undersigned law firm was engaged.

Following substantial discovery the hearing

was held before Administrative Law Judge James

F. Tierney. Witnesses were called and the

evidentiary rules of the Federal Rules of Evi-

dence were purportedly followed in the hearing.

The Violations of Section 605

Substantial evidence was elicited, which was

unrebutted, that the violations complained of had

occurred, not just in the case of the petitioner,

but in hundreds of other instances. Western

Union admitted at hearing, subsequent to hearing

and even up to the date of oral hearing before

the United States Court of Appeals (January 21,

1980), that there had been no remedial measures

taken by either Western Union or the FCC.

Damages

Substantial evidence in the form of cancelled

checks, affidavits, and testimony was presented

at the hearing before the ALJ that the petitioner

had incurred damages, costs and attorney's fees,

both because of the disclosures and resulting from

this litigation. The evidence on damages and costs

was unrebutted and some damages were even ad-

mitted by opposing counsel.

However, no damages were awarded.

The findings of the ALJ are discussed in

summary under ''Opinions Below" (supra) and

need not be repeated herein.

The Effect of Ultimate FCC Action

The review board, by its opinion, reversed

the ALJ's award of even nominal damages,

Employing the tricky logic of stating first that

the award of nominal damages is unnecessary

"since it serves no purpose" and then used the

lack of any damages (including nominal) as an

excuse for failure to address the much more im-

portant question of punitive damages, clearly an

act in avoidance of the FCC's statutory respon-

sibility to the public interest under the statute

and applicable rules of damages.

The full Commission adopted this fallacious

reasoning ‘n failing to review the incorrect opin-

ions of the review board.

The Action by the United States Court of Appeals

for the District of Columbia Circuit.

The Western Union Telegraph Company (the

real party in interest from whom damages and

costs are sought) had been allowed to intervene

in the case. During oral argument counsel for

Western Union and the FCC conferred and sat

at the same counsel table.

The Court of Appeals expressed, during

oral argument, obvious displeasure with the fail-

ure of the FCC to do anything to correct what was

incontrovertably an ongoing practice by Western

Union in violation of its "grave statutory duty

under § 605 of the act to keep all telegraph

communications and related records secret".

Upon questioning by one of the three judges

of the panel counsel for the FCC stated in es-

sence that the FCC had done nothing to enforce

the correction of the grossly negligent practices

of Western Union and that the FCC was awaiting

the Court's (the U.S. Court of Appeals') view

on the seriousness of the situation before acting.

Counsel then indicated that the FCC would im-

mediately take actions to monitor Western

Union's corrective actions. The Court then re-

quested counsel for the FCC to write a letter

to the Court outlining its view of the degree of

seriousness of the criminal violations which

admittedly had occurred. Counsel for petitioner

was allowed to submit its own response to the

FCC's letter to the Court.

Following the exchange of letters, the

Court merely affirmed the FCC's prior ruling

although allegedly, the FCC had reversed

its position on correction of the violations, as

a direct consequence of the Court of Appeals!

informal unwritten and unpublished admon-

ition. '

From this result, which effectively denies

petitioner any relief whatever, (although he had

prevailed on the matter of liability, has proven

grossly negligent activities which fully warrant

punitive damages, as well as substantial actual

damages), petitioner respectfully requests this

review.

JURISDICTION BELOW

The FCC had jurisdiction granted by Con-

gress in 47 U.S.C. § 207 which gave the peti-

tioner alternate forums, either the FCC or the

United States District Court, but not both.

Appeal of the cause directly to the United States

Court of Appeals for the District of Columbia

Circuit was pursuant to 47U.S.C. § 402(a) and

28 U.S.C. § 2342(i).

REASONS FOR GRANTING THE WRIT

eee The FCC's Action* in Reversing an Award

of Nominal Damages by the "Trier of Fact"

(the ALJ) When Violations were Proven,

Violated the Public Trust and the FCC's

Mandate as the Regulatory Agency for

Confidential Telegraphic Communications.

* Since the FCC's actions were approved by

the U.S. Court of Appeals by affirmance on

all matters, unless specifically mentioned,

the FCC actions includes actions of the U.S.

Court of Appeals for the District of Columbia

Circuit.

At hearing before the Administrative Law

Judge at a "courtroom" in the FCC building in

Washington, D.C. the petitioner proved that the

violations complained of had occurred in three

separate instances. He further proved that

hundreds, if not thousands, of similar viola-

tions[1] had occurred both before and after -

the three specific violations of his case. Western

Union and the FCC admitted as late as January

21, 1980 (the oral hearing before the U.S. Court

of Appeals) that no corrective action had been

taken by either the FCC or Western Union.

The ALJ awarded nominal damages of $18.00

which were reversed by the FCC as having '"'no

purpose" (p. 105a, § 9). Because no damages

(neither nominal nor actual[{2] were proven),

the FCC disallowed petitioner's complaint with-

out any award or relief whatever. It even failed

to order Western Union to correct its unlawful

practices. a

Because the trier of fact, the ALJ, found

nominal damages and liability was clear, the

all matters, unless specifically mentioned,

the FCG actions includes actions of the U.S.

Court of Appeals for the District of Columbia

Circuit.

[1] ‘The violations'' were unauthorized disclos-

ures of confidential telegraphic communica-

tions and related billing records. These

acts were felonies under 18 U.S.C. § 2511

(1)(c)(d), (effective 6/19/68) and carrying

severe civil penalties under 47 U.S.C. § 206.

[2] The petitioner contends that incorrect stand-

ards were used by the ALJ and the FCC in

evaluating actual, compensatory and punitive

damages, see argument, infra, in violation

of this Court's mandate in Louisville &

Nashville R. Co. v. Ohio Valley Tie Co.,

supra.

Commission erred in reversing the award. The

reversal is contrary to the public interest,

normal rules of quasi-judicial regulatory conduct

and is directly in contravention to the applicable

Federal Rules of Evidence, hence highly im-

proper.

The simple fact of the matter is that the

trier of fact found for the petitioner. No new

evidence or reason ever existed for reversal by

the FCC ofits judicial function as a trier of fact.

Indeed, the Common Carrier Bureau supported

the petitioner throughout the agency proceedings

and filed briefs in support of petitioner. Yet,

by manipulation of the legal standards ap-

plied by the review board, as approved by the

full Commission, the prevailing petitioner was

stripped of all relief, even though the factual

basis for his complaint remained intact. The

result: a mere slap on the wrist for the respon-

dent Western Union and an unreimbursed heavy

expenditure by the petitioner.

This result must be considered by this

Court truly abhorent to the system of justice in

these United States.. This minipulation and mis-

use of the public trust by the FCC, in concert ,

with the monopoly itis mandated to monitor, can

not be allowed to continue. For this reason alone,

the petition should be granted. Failure to grant

this petition will, as a practical matter, allow

continued and unabated unlawful disclosures by

Western Union.

II. Petitioner's Rights of Procedural Due

Process Were Violated by the Informal

Admonition of the United States Court of

Appeals for the District of Columbia Circuit

When Such Adminition was Used as an

Excuse for Not Granting Monetary Relief

or Costs to the Petitioner.

At oral argument on January 21, 1980 it

became apparent to the FCC (and to Western

Union) that the Court was concerned, perhaps

even insensed, over the fact of the on-going

violations by Western Union of the Congressional

mandate requiring confidentiality of telegraphic

communications. Upon questioning from tHe

bench, FCC counsel stated that the FCC was

awaiting an indication of this Court's (the Court

of Appeals for the District of Columbia Circuit),

view before deciding to take any corrective

action in monitoring or ordering Western Union

to correct its illegal and grossly negligent pro-

cedures.

Moreover, the FCC counsel assured the

panel that it just then had adopted the Court's

view thatindeed something was amiss in Western

Union's actions and corrective action would be

taken. Itis petitioner' s view that such a change

in policy, even if sincere, and in fact imple-

mented (of which petitioner has no knowledge)

is simply a smoke screen to avoid the law in

assessing liability upon the. wrongdoer, in vio-

lation of the due process rights of the peti-

tioner.

The Court, in apparently accepting the

FCC's representation that it would in futuro,

protect the public interest, did nothing to remedy

the several wrongs suffered by petitioner.

Monetary oer see age was denied petitioner

(although mandated by Congress) and it is in

this entire ratification of Western Union's wrong-

doing that petitioner's due process rights were

violated.

For the foregoing reasons, the United States

Court of Appeals for the District of Columbia

Circuit has violated the due process rights of the

petitioner and the petition should be granted to

hear the merits of this cause.

III. The FCC Violated the Supreme Court's

Mandate as to Standards Applicable to

Evidence on Damages.

This case is the first case before the FCC

where a common carrier was found to have vio-

lated the act. The Supreme Court, therefore,

has not yet spoken as to how damages are to bv

evaluated or whatlegal standards or rules of

evidence apply in the context of the facts of this

case,

However, in 1916, in interpreting the iden-

tical sections[3] of the Interstate Commerce Act

(49 U.S.C.), Mr. Justice Holmes said:

"By §8 acommon carrier violating the

commands of the actis made liable to the

person injured thereby 'for the full amount

of the damages sustained in consequence! of

the violation. ... By §9 any person so in-

jured may make complaint tothe Commis-

sion or may sue in a court of the United

States to recover damages for which the

carrier may be liable under the act, but

must elect in each case which of the two

methods of procedure he will adopt. The

rule of damages in one can hardly be dif-

ferent from that in the other. Louisville

& Nashville R.Co. v. Ohio Valley Tie Co.

» - Ct. » em-

phasis added.

Further, in the consideration of the extent

of damages available in the administrative forum,

7 sea

[3] Sections 8 and 9 of the Interstate Commerce

Act were copied verbatim as §§ 206 and 207

of the Communications Act, thus by analogy,

identical reasoning can be strongly argued

to be applicable here.

the Court stated:

"We are of the opinion that all damages

that canbe properly attributed to an over-

charge [a violation of the Act], whether it be

the keeping of the plaintiff out of its money...

or the damage to its business following as a

remoter result of the same cause, rnust be

taken to have been considered in the award

of the Commission and compensated when

that award was paid." 37 S.Ct. at 122,

emphasis added,

What standards the ALJ actually applied are

unclear. However, what is clear from the evi-

dence presented to the trier of fact is that:

1. The petitioner was damaged;

2. Out-of-pocket expenditures representing

damages did occur;

3. Evidence on damages was presented in

cancelled check form;

4, The respondent admitted that the

complainant/ petitioner paid expenses

representing damages;

5. Testimony and affidavits on substantial

damages was unrebutted.

By any rational standard of proof actual

damages and consequential damages did occur,

The ALJ in assessing damages was apparently

just unfamiliar with the proper standards or

methods applicable to this case and mandated in

Louisville & Nashville R.Co. v. Ohio Valley Tie

Co., supra.

Therefore, certiorari should be granted be-

cause the FCC and the lower Court have failed

to follow the Supreme Court's mandate for stan-

dards of evaluating damages and the appropriate

award thereof.

IV. An Award of Punitive Damages, Attorney's

Fees and Costs Was Erroneously Denied to

Petitioner.

Petitioner was initially advised by a FCC

staff attorney, and at a time when he had not re-

tained counsel, that a remedy for his complaint

was available by filing a complaint with the FCC,

He was never advised that by pursuing this course

of action he might waive other rights secured to

him if he pursued his remedy in any United States

District Court. The statute specifically provides

that in any action invoking federal jurisdiction

pursuant to the Communications Act, the suc-

cessful plaintiff is entitled to costs and attorney's

fees, as well as punitive damages (47 U.S.C.

§ 206).

Petitioner, proceeding in good faith and

upon advice from the FCC, filed his complaint

and then, after the complexity of the matter be-

came clear to him, retained counsel. Counsel

' were retained only after petitioner's right to pro-

ceed in any United States District Court had been

waived. Petitioner then incurred substantial out-

of-pocket costs for witness, duplication, travel

and attorney's fees. Although petitioner pre-

vailed (as that phrase is generally understood),

the initial determination that he was entitled to

$18.00 for nominal damages, as an ''award'' was

even more inadequate by contrast to the recovery

mandated for the identical cause in a federal

judicial forum.

If the alternate forum, the United States

District Court, had been chosen as the forum in

which petitioner proceeded, no question could

have arisen asto the jurisdiction to award either

attorney's fees, costs or punitive damages. This

authority is clearly conferred by 47 U.S.C. 206,

which although the AlJ determined that such

authority could not be clearly perceived as with-

in the purview of the FCC. Although there is no

authority directly (or even indirectly) preventing

the FCC to award fees, costs and punitive dam-

ages, the ALJ obviously believed specific statu-

tory authority to do so must exist[4]. Petitioner,

on the basis of this Court's holding in Lousiville

& Nashville R.Co. v. Ohio Valley Tie Co., supra.,

took exception to this conclusion, '

The Court of Appeals, while expressing in-

terest during oral argument in the appropriate-

ness of awarding punitive damages in circumstan-

ces presented by petitioner's case, finally evaded

the responsibility of deciding the concrete issues

(and awarding costs, fees and damages) by past-

argument assurances from the government (see

letters attached hereto as Attachments A, B, and

C).

[4] Indeed, there is no authority directly on

point which forecloses the award of costs,

fees or punitive damages by the FCC.

Surely, no one would doubt the Commission's

authority todo so, were that its inclination.

If the alternate forum, the U.S. District

Court, had been chosen as the forum in which

petitioner would proceed, no question could

have arisen, as here, as to the jurisdiction

to award either attorney's fees and costs or

punitive damages. This authority, for a

court, is clear under § 207. It is not so

clearly within the jurisdiction of the Com-

mission, however, hence one reason for its

failure to so award relief.

After having been assured, informally, at

oral argument that the FCC, henceforth, would

make Western Union promise to be ''good boys",

the Court of Appeals affirmed the FCC's unsup-

ported finding below that Western Union didn't

do anything wrong but anyhow, had corrected its

legal practices ignoring damages and costs

properly assessable against the negligent wrong-

doer.

CONCLUSION

For the foregoing reasons the petition for

certiorari should be granted, for to leave the

resolution of the case in the status quo is con-

trary to the mandate of this Court, contrary to

the Federal Rules of Evidence, and countenances

the inbred ''one hand washes the other" practices

of a monopolistic enterprise governing the sup-

ervisory agency, all of which is abhorent to the

public interest and contrary to the dictates of

Congress in the Communications Act.

Respectfully submitted,

Walter T. Charlton

Charlton & Tupling

2011 I Street, N.W.

Suite 303

(202) 296-2975

Attorney for Petitioner

APPENDIX A

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

FCC 76-500

In the Matter of 40829

HOWARD STEVEN STROUTH, ) DOCKET NO.20831

Complainant)

)

Ve )

)

THE WESTERN UNION )

TELEGRAPH COMPANY, ) File No. TS 4275

Defendant )

MEMORANDUM OPINION AND ORDER

Adopted: June 1, 1976;-Released: June 9, 1976

By the Commission: Commissioner Reid absent.

1. We have before us for consideration

(1) a formal complaint filed by Howard Steven

Strouth (Strouth) on September 16, 1975, pur-

suant to Section 208 of the Communications Act

of 1934, as amended, (the Act) directed against

The Western Union Telegraph Company (Western

Union) and (2) an answer and a motion to dis-

miss timely filed on October 22, 1975, by

Western Union. Strouth alleges that Western

Union unlawfully divulged to a third party a

copy of, and additional information concerning,

a telegram he sent on September 21, 1974. For

the reasons set forth herein, we will designate

this matter for hearing to determine whether

Western Union has violated Section 605 of the

Act.

2. The telegram in question was sent by

Strouth from New York City via Western Union

addressed to himself in Calgary, Aleberta,

Canada, and signed with the name of Bernard

Hirschhorn 1/, an attorney in New York City.

The purpose of the telegram appears to have been

to indicate that Hirschhorn was familiar with

certain information relevant to a lawsuit then being

prosecuted by Strouth against Norsul Oil & Mining

Ltd. (Norsul) in the Supreme Court of Aleberta in

Calgary. On September 23, 1974, Strouth pre-

pared an affidavit to which he attached a copy of the

telegram for the purpose of offering it as evidence

in court. In the affidavit, he presented the Sept-

ember 21, 1974 telegram to be one "...which

I have received from Bernard Hirschhorn, "

Althought the affidavit, which contained other

statements relevant to the lawsuit, was admitted

into evidence on October 4, 1974, Strouth claims

that the telegram and his statement concerning

it were never entered into evidence in court.

3. Prior to the October hearing, attorneys

for Norsul aparently came into possession of the

affidavit and the copy of the telegram attached

thereto. 2/ In their pretrial preparation Norsul's

attorneys requested the assistance of another

attorney in New York City to confirm the telegram.

Western Union admits that this attorney, acting on

behalf of Norsul, by telephone, "...inquired and

1/ Strouth admitted that he sent the telegram ina

letter addressed to the Commission dated

February 11, 1975.

2/ The present record does not reveal whether

Norsul obtained a copy of the telegram by

normal service of process or by other means,

Western Union claims that Strouth provided a

copy of the telegram to Norsul's representa-

tives.

received from Western Union employees certain

limited information relating to the telegram sent

on September 21, 1974.'' Western Union does not

disclose specifically what "limited information"

was then given to Norsul's attorney or whether the

substance of the telegram was divulged. However,

it does appear that information concerning the

contents of the telegram could have been divulged

during that telephone conversation prior to any

presentation by the attorney to Western Union of

the telegram Strouth had attached to his September

23, 1974 affidavit. Western Union further admits

that Norsul's attorney subsequently was given a

copy of the telegram from its files and the symbols

on the telegram were explained to him. Finally,

Western Union admits that thereafter on October

3, 1974, one of its employees executed an affidavit

prepared by Norsul's attorney specifying informa-

tion previously given to him by Western Union

employees concerning the telegram and attaching

to it the file copy of the telegram. 3/ The record

does not reveal whether Norsul's attorney at any

time presented a copy of the telegram attached to

Strouth's September 23, 1974 affidavit to Western ~’

Union before obtaining the file copy of the telegram

3/ The affidavit stated in pertinent part the follow-

ing information concerning the telegram:

(1) The telegram was sent on September 21,

1974, at 11:28 p.m. eastern dayling time.

(2) The telegram was called in from telephone

number (212) 322-8700 which appears in

the Queens telephone directory as the

number for the Hilton Inn at JFK Airport.

(3) The telegram was charged to Dr. Howard

Strouth, 120 Wall Street, New York, N.Y.

10004, telephone number (212) 944-4065.

sent by Strouth to himself bearing Bernard

Hirschhorn's signature. Asa result of

Western Union's alleged unlawful divulgence

of the telegram and information concerning it,

Strouth claims that additional hearings were

held in both Calgary and New York City, requir-

ing his attendance or that of his attorney, and

additional legal fees and expenses were incur-

red. 4/ He therefore asks us to award him

$10, 000 in damages and to assess punitve dam-

ages against Western Union.

4, Western Union denies that it unlawfully

divulged information concerning the telegram in

violation of Section 605 of the Act since, it as-

serts, the full text of the telegram had been

divulged by Strouth prior to the acts of its em-

ployees. Western Union argues that, once the

telegram was published by Strouth, its existence,

contents, substance, purport, effect or meaning

had already been divulged and hence could be

confirmed by Western Union employees without

violation of Section 605. It concludes that the

effect of the actions of its employees was to

authenticate that which had already been

‘37 Continued:

(4) The individual calling in the telegram

gave his name as’ Bernard Hirschhorn

and his telephone number as that of the

Hilton Inn at JFK Airport.

4/ A Commission of Inquiry was instituted by

~ the Supreme Court in Calgary to investigate

the circumstances surrounding the telegram

by taking the deposition of Hirschhorn in

New York. Hirschhorn denied sending the

telegram in his deposition. We are in-

formed that Strouth's suit against Norsul in

Calgary court is still proceeding.

already been divulged. Finally, Western Union

contends that Section 605 does not prohibit

disclosure of the name, address and telephone

number of any person billed for a telegram and

claims that this was the only information di-

vulged by its employees not evident on the

telegram previously disclosed by Strouth in °

his September 23, 1974 affidavit.

Discussion

5. Western Union seeks dismissal of the

complaint on grounds that Strouth did not verify

it in accordance with Section 1.721 of the

Commission's Rules because he failed to state

that he believed the complaint's allegations to be

true. We will deny the motion to dismiss. We

do not agree that failure of the verification pro-

vided in the complaint to specifically state that

Strouth believes the allegations contained therein

to be true violates Section 1.721 of our rules.

That rule merely provides a suggested form of

verification for formal complaints filed there-

under. It clearly provides that:

"The following form may be used in

cases to which it is applicable, with

such alterations as circumstances

may render necessary. _

(Emphasis added. )

Strouth has advised that the form of verifica-

tion he used was the only one acceptable to the

United States Consul in Costa Rica. 5/ We

believe that the form used constitutes an altera-

tion in our suggested form rendered necessary

by the requirement of the United States Consul.

Furthermore, we view the form of verification

5/ Strouth resides in San Jose, Costa Rica.

provided to be in substantial compliance with

Section 1.721 of our rules. Strouth has made

certain representations in the complaint and has

verified that he has been informed of the con-

tents thereof. Therefore, we will hold him no

less responsible for the truthfulness of those

representations than we would had the form of

verification suggested in our rules been used.

The purpose of our procedural rules governing

complaints is to make it easy, not difficult, for

users of common carrier services to assert

their rights under the Communications Act.

In addition, these rules are designed to give a

defendant notice of the nature of a claim and of

the theory upon which the complainant seeks

relief. We have previously made clear our in-

tent that our procedural rules governing com-

plaints should be liberally construed to achieve

these objectives. The Bunker-Ramo Corp,

et al., 25 FCC 2d 691, 696 (1970).

6. We now turn to the merits of the

complaint and consider whether it states a

cause of action under the Communications

Act. For this purpose we must accept as true

the material allegations.therein. Conely v.

‘Gibson, 355 U.S. 41 (1957). The issue

therefore becomes whether Western Union

violated Section 605 of the Communications

Act by supplying a file copy of, and additional

information concerning, the telegram to one

other than its sender or addressee. Section 605

provides, in part:

",.no person receiving, assisting in

receiving, transmitting, or assisting

in transmitting, any interstate or

foreign communication by wire or radio

shall divulge or publish the existence,

contents, substance, purport, effect, or

meaning thereof, except through author-

ized channels of transmission or re-

ception, (1) to any person other than

the addressee, his agent, or attorney,

(2) to a person employed or authorized

to forward such communication to its

destination, (3) to proper accounting or

distributing officers of the various com-

municating centers over which the com-

munication may be passed, (4) to the

master of a ship under whom he is

serving, (5) in response to a subpena

issued by a court of competent jurisdic-

tion, or (6) on demand of other lawful

authority. "'

The original purpose of section 605 was to pro-

hibit blatant public or private encroachments on

the privacy of telecommunication messages and

to ensure the integrity of the communications

system. Nardone v. United states, 302 U.S.

379, 383, 58 S.Ct. 275,. 82 L. Ed. 314 (1937).

Section 605, as amended in 1968, is designed

to regulate, among other things, the conduct

of communications common carrier personnel

by prohibiting unauthorized divulgence of inter-

state communications by persons assisting in

receiving or assisting in transmitting such

communications. S.Rep. N. 1097 90th Cong.,

2d Sess. (1968); 2 U.S. Cong. & Admin. News

(1968) p. 2197,

7. We have in the past ordered a hearing

to determine whether certain carriers had

violated Section 605 and whether damages

should be awarded for such violation. Sidne

Gelb et al., 21 FCC 2d 407 (1970); 30 FCC Da

e believe that Section 605, when

read in conjunction with other provisions of the

Act, vests in the sender of a telegram the

right to seek an award of damages for injuries

sustained as the result of a carrier's unlawful

divulgence of its existence, contents, sub-

stance, purport, effect or meaning." Section

206 of the Act provides that if any carrier

commits an act prohibited by the Act, the

carrier may be held liable for damages; and,

under Section 207 "any person" claiming to be

so damaged by a common carrier may either

make a complaint to this Commission requesting

damages or file suit in federal district court.

If a complaint is filed with this Commission,

Section 209 sepcifically authorizes us to award

damages after a hearing on the complaint. We

therefore conclude that Strouth, as the sender

of the telegram, is entitled to seek damages

from Western Union as the carrier of the

telegram for injuries sustained as the result

of any unlawful divulgence in violation of

Section 605.

8. The prohibitions of Section 605 apply to

those employees of a carrier who have intimate

knowledge of the content of a communication.

The section recognizes that the integrity of the

communications system demands that the public

be assured that employees of carriers who come

to know the content of messages will in no way

-breach the trust which such knowledge imposes

on the. United States v. Russo, 250 F. Supp.

55, 59 (Eastern District, Pennsylvania, 1966).

Persons" within the meaning of the section

include both the carrier itself and persons em-

played by the carrier. United States v. Finn,

502 F. 2d 938, 942 (7th Cir, 1974). Carriers

are responsible for violations committed by

their employees. Moreover, it has been held

that Section 605 specifically applies to tele-

gram operators who either learn the content of

the message or handle a written record of

communications in the course of their employ-

ment. United States vs. Russo, ‘supra, p. 59.

Although we are unable to determine from the

record before us the identity of the persons who

provided over the telephone "limited information’

to Norsul's attorney concerning the Strouth tele-

gram, Western Union admits that they were its

employees. In addition, Western Union's em-

ployee who subsequently executed the affidavit

prepared by Norsul's attorney stated that he was

an ...employee of Western Union, fully con-

versant with the transmission, routing and

billing of the telegrams transmitted in the

normal course of the business day.'' Therefore,

it appears that those emloyees of Western Union

who disclosed information concerning the tele-

gram were bound by the restrictions of Section

605 and that Western Union is thereby liable if

any unlawful acts were committed by them in

doing so.

9. The basic question before us therefore

is whether any of the following alleged acts by

Western Union's employees constituted an un-

lawful divulgence within the meaning of Section

605: (1) the disclosure during a telephone con-

versation with the New York’attorney acting on

behalf of Norsul of certain 'limited informa -

tion" concerning the telegram; (2) the disclosure

in an affidavit signed by Western Union's

Manager of Customer Services of certain in-

formation concerning the telegram; and (3) the

attachment of a file copy of the telegram to that

alfidavit. Divulgence within the meaning of

Section 605 has been defined as the transmitting

of a message to a third person without the con-

sent of the sender. U.S. v. Gruber, 123 F. 2d

307, 309 (2d Cir 1941). We note that Western

Union has not claimed to have had the direct

consent of the sender of the telegram, whether

he was either Strouth or Mr. Hirschhorn,

Moreover, at least on the present record none

of the acts of Western Union's employees

10a

appears to be conduct exempted under the pro-

visions of Section 605 from the general rule

against divulgence. 6/ Western Union makes

no claim that disclosures its employees made

were in response to a subpena issued by a

court of competent jurisdiction or on demand of

other lawful authority. We therefore must

consider whether the alleged actions of Strouth

in filing the copy of the telegram in court or

otherwise making a copy of it available to rep-

resentatives of Norsul prior to the actions of

Western Union's employees constituted implied

consent to divulge or publish its existence or

contents.

10. Evenif, assuming arguendo, Western

Union is correct in contending that once a com-

munication has been made a matter of public

record by its sender, subsequent disclosure of

its existence and contents by the carrier for the

purpose of confirming that which has been made

a matter of public record would not violate

Section 605 on the theory that all persons are

presumed to have constructive knowledge of

what is part of the public record, it is not

clear on the present record whether the tele-

‘gram was ever divulged by the sender, recip-

ient or agent prior to the acts of Western

Union's employees in question. Western Union

has not established the date upon which the tele-

gram was allegedly filed in the Supreme Court

of Alberta. More important, Western Union

fails to make any showing that the alleged filing

of the telegram in the Calgary proceeding

6/ Clauses (2) through (6) of Section 605 are

~ intended to be exceptions to the rest of

the first sentence, thus listing the persons

to whom communicatons can be divulged.

United States v. Finn, supra, p. 942.

lla

actually made it a matter of public record. On

the contrary, Strouth asserts that the telegram

was never "used" in court as evidence in that

proceeding. Finally, we are unwilling to accept

on the record before us Western Union's argu-

ment that it was relieved from the restrictions

of Section 605 when Strouth provided a copy .of

the telegram to Norsul. Section 605 clearly

proscribes divulgence or publication of an inter-

state or foreign wire communication "...to any

person other than the addressee, his agent, or

attorney...'' except for those exceptions in

clauses (2) through (6). (See footnote number

6.) We find no support for Western Union's con-

tention that the statute allows a carrier to

divulge a telegram to a third party for purposes

of verifying its existence and contents on the

theory that the sender has implicitly consented

to such divulgence merely by providing a copy

of the message to the third party. The mere

possession of a copy of'a telegram by a third

party, in and of itself without a more convincing

manifestation of intent, certainly does not in-

dicate either express or implied consent of the

sender to its divulgence by a carrier.

11. Furthermore, we reject Western

Union's argument that Section 605 does not

prohibit the disclosure of telegraph company

billing records. Western Union's reliance is

misplaced on cases holding that disclosure for

submission as evidence in a criminal proceeding

of telephone toll records kept in the ordinary

course of business by telephone companies is

not proscribed by Section 605. 7/ The holdings

7/ See United States v. Covello, 410 F. 2d

~ 536 (2d Cir. 1968), cert. den., 396 (U.S. 879

(1969); U.S. v. Cerone, 452 FE. 2d 274, 289

(7th Cir. 1971), cert. den., 92S. Ct. 1169;

l2a

of these cases with regard to telephone toll

records have never been extended to telegraph

records of any form. Section 605 seeks to pro-

tect the integrity of communications from un-

scrupulous common carrier employees who are

in a position to have knowledge of either the

contents thereof, or both. 8/ Telephone calls

are ''fleeting and ephemeral things."' Russo,

supra, p. 59. Telephone company accounting

a toll records do not show, nor can they be

associated with, any records of either the

content or substance of conversations or the

identity of the particular persons engaged in

them. Moreover, those telephone company em-

ployees handling accounting and toll records

have no means of obtaining such knowledge.

However, telegraph billing records are associ-

ated with a copy of the message sent, the name

of the person sending the telegram, and the

name of the person to whom the telegram is

sent. Thus, telegraph company employees

having access to the billing records ofa

7/ Continued

U.S. v. Bernard, 490 F. 2d 907, 913-914

(Sth Cir. 1973), cert. den., 416 US 959; U.S.

v. Kohne, 347 F. sie 1178, 1183 (D. Cr Pa.

1972). :

8/ Section 605 was derived from Section 27

~ of the 1927 Radio Act by applying identical

language to wire as well as radio communica-

tions. Like telegraph operators, radiogram

operators have access to the content of the

communication as well as the parties in-

volved. Thus, the idea of Section 27 in pro-

hibiting the divulgence of such information

was carried on by Section 605 as it applied

to wire communication.

13a

telegram also have access to both the content

and substance of the message and the identity of

the parties to the communication. Section 605

proscribes the divulgence of such information by

common carrier employees except in response to

a subpena issued by a court of competent juris-

diction or on demand of other lawful authority.

Conclusions

12, There appear to be questions of fact

which must be resolved before we can determine

whether Western Union has violated Section 605.

The attachment of a file copy of the telegram

to the affidavit clearly did divulge the subject

matter and contents of the message and the

identity of the parties involved. There is inade-

quate information to determine whether the

Western Union employees who divulged such in-

formation had the consent of the sender to do so.

Furthermore, we are not provided with the ex-

tent of the information concerning the telegram

orally given by Western Union employees to

Norsul's attorney. Our record does not reveal

what the 'limited information" orally provided

to Norsul's attorney during his telephone con-

versation with unnamed employees of Western

Union prior to the execution of the affidavit was.

Nor are we provided with the date of this con-

versation which Western Union admits took

place. Finally, we are unable to determine the

extent of the damages, if any, allegedly suffered

by Strouth. Accordingly, we will designate this

matter for evidentiary hearing.

13. In view of the foregoing, IT IS

ORDERED, That pursuant to the provisions of

Sections 4(i), 4(j), 206, 208, 209, 409 and 605

of the Communications Act of 1934, as amended,

this matter is designated for hearing on the

following issues:

l4a

(1) Whether Western Union has violated

Section 605 of the Communications

Act; and

(2) what damages, if any, should be

awarded to Strouth for any violation

found under issue (1).

14, ITIS FURTHER ORDERED, That the

hearing in this proceeding shall be held before

an Administrative Law Judge at a time and place

to be specified by sebsequent order; and that

such Administrative Law Judge shall upon clos-

ing of the record, prepare and issue an initial

decision, which shall be subject to the submittal

of exceptions and requests for oral argument as

provided in Sections 1.276 and 1.277 of the

Commission's Rules (47 C. F.R. Sections 1.276

and 1.277), after which the Commission shall

issue its decision as provided in Section 1. 282

of the Commission's Rules (47 C.F.R. Section

1.282).

15. ITIS FURTHER ORDERED, That Mr.

Howard Steven Strouth and The Western Union

Telegraph Company and the Chief, Common

-Carrier Bureau, are made parties to this pro-

ceeding.

16. ITIS FURTHER ORDERED, That the

burden of proof with regard to the issues speci-

fied herein shall be upon Strouth.

17. IT IS FURTHER ORDERED, That,

where appropriate, the burden of production of

relevant evidence shall be assigned by the

Administrative Law Judge to such party as is in

exclusive control of evidence.

18. ITIS FURTHER ORDERED, That

Western Union's motion to dismiss is hereby

DENIED.

14a (2)

FEDERAL COMMUNICATIONS COMMISSION

Vincent J. Mullins

Secretary

15a

525

Strouth, Howard Steven

FCC 77D-55

Before The

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of

Howard Steven Strouth, )

Complainant v. The Western ) Docket No. 20831

Union Telegraph Company, ) File No. TS 42-75

Defendant )

Appearances

Walter T. Charlton, T. Paul Imse, Jr. and

William Tupling, Esqs. (Charlton, Imse and

Tupling) on behalf of Howard Steven Strouth,

Complainant; Joel Yohalem, Peter G. Wolfe and

Peter J. Monaghan, Esqs. on behalf of Western

Union Telegraph Company, Defendant; and Jacob

W. Mayer, Ella U. Owens and James O. Juntilla, ©

Esqs. on behalf of Chief, Common Carrier

Bureau, Federal Communications Commission.

Initial Decision of Administrative Law Judge

James F. Tierney

(Issued: October 19, 1977;

Released: October 28, 1977)

Preliminary Statement

1. This case was set for hearing by Memo-

randum Opinion and Order, FCC 76-500,

released June 9, 1976, wherein the Commission

determined that an evidentiary hearing was

necessary to resolve the merits of a complaint

filed by Howard Steven Strouth (hereinafter

l6a

Strouth, Plaintiff or Complainant) under Section

208 of the Communications Act, as amended,

(the Act) directed against The Western Union

Telegraph Company (hereinafter Western Union

or Defendant). Strouth Alleges that Western

Union unlawfully divulged to a third party a copy

of, and additional information concerning, a

telegram he sent on September 21, 1974. Prem-

ised on his complaint, Strouth charges that

Western Union has violated Section 605 of the

Act and as a consequence in the complaint before

the Commission he was entitled to an award of

$10, 000 in damages and an assessment of puni-

tive damages against the Defendant.

2. In considering the various positions of

the parties, Strouth and Western Union, among

other things in the prefatory language of the

aforesaid Memorandum Opinion and Order, the

Commission stated in response to certain

Western Union pleadings respecting the com-

plaint:

'.,. Western Union fails to make any

showing that the alleged filing of the

telegram in the Calgary proceeding

[in the Supreme Court of Alberta,

Canada] actually made it a matter of

public record.

'[And that][t]he mere possession of a

copy of a telegram by a thrid party,

in and of itself with a more convincing

manifestation of intent, certainly does

not indicate either express or implied

consent of the sender of a telegram to

its divulgence by a carrier."

(Memorandum Opinion and Order, page 7.)

Indeed, the Commission emphasized "'... we

reject Western Union's agreement that Section

605 does not prohibit the disclosure of telegraph

company billing records." (Id. )

17a

3. Further, the Commission noted:

" .,. telegraph billing records are associ-

ated with a copy of the message sent, the

name of the person sending the telegram,

and the name of the person to whom the

telegram is sent. Thus, telegraph em-

ployees having access to the billing records

of a telegram also have access to both the

content and substance of the message and the

identity of the parties to the communication.

Section 605 proscribes the divulgence of

such information by common carrier em-

ployees except in response to a subpoena

issued by a court of competent jurisdiction

or on demand of other lawful authority."

(Memorandum Opinion and Order, page 8.)

4. Suffice to say, in alluding to information

before it, provided by the contesting private

parties, the Commission while concluding that

'the attachment of a copy of the telegram to the.

affidavit [given by Western Union to a third

party] clearly did divulge the subject matter and ~"

contents of the message and the identity of the

parties involved, " nevertheless, also concluded

that the facts before it were insufficient to pre-

cisely spell out the full dimensions of the nature

and extent of the alleged violation by the

Defendant or the extent of the damage suffered

by the Complainant. Hence, it determined that

a full hearing was necessary to assay and to

assess Complaintant's claim. Invoking the pro-

visions of Sections 4(i), 206, 207, 208, 209, 409

and 605 of the Act, the following issues were

des‘gnated for trial:

(1) Whether Western Union has violated

Section 605 of the Communications

Act; and

(2) what damages, if any, should be

awarded to strouth for any violation

found under issue (1).

18a

Besides the Complainant and Defendant, the

Chief, Common Carrier Bureau was made a

party to the proceeding.

5. A prehearing conference was scheduled

for August 11, 1976. At the request of the

Complainant, the prehearing conference was

rescheduled for August 31, 1976. Subsequently,

again at Complainant's request, the prehearing

was set for September 8, 1576. The first pre-

hearing conference was held on that date where-

in the customary procedural arrangements

covering exchange of direct cases of the parties

and the notification of witnesses were agreed

upon. Because of the uncommon nature of the

issues to be tried, at the suggestion of the

Bureau, the parties were directed to file briefs

on or before October 26, 1976, on the proposi-

tion of the nature and extent of authority of the

Presiding Judge to assess or award damages.

6. Elaborate in-depth Discovery proce-

dures were pursued by the private parties which

continued up to the commencement of the hear-

ing. On October 6, 1976, counsel for Complain-

ant sought a 45-day extension of time within

_.. .which to respond to interrogatories of the

Defendant premised on the ground that Complain-

ant was travelling in Europe and was not other-

wise available. As set forthin Order, FCC

76-M-1312, released October 12, 1976, that

request was denied but a period of 21 days was

nevertheless allowed to permit compliance.

7. The three parties filed the requested

briefs on the scope of damages proposition on

October 26, 1976. The Common Carrier Bureau

and Strouth argued that the Presiding Judge has

authority to award punitive damages while

Defendant, Western Union, urged to the contrary

as being beyond the bounds of his jurisdiction.

19a

All parties agreed that the element of damages

and their scope were appropriate subjects

prior to the commencement of trial. By

Memorandum Opinion and Order 1/ the Pre-

siding Judge ruled that under statutory prin-

ciples and case law precedent, he lacks author-

ity to assess and award punitive damages and

further ruled that the parties were free to

seek review of his ruling without the customary

pleadings in petition. As might be expected, the

losing parties chose to do so; on the other hand

the Defendant, in support of the ruling, filed an

opposition to the appeals.

8. Though this prefatory statement may

reach undue length and might otherwise be

assigned to a suffix or annex to this disposition,

it would appear better to suffer the burden of

the seemingly prolix to render a chronicle of

the natural unfolding of events in this uncommon,

if not a first impression, case. In the energetic

pursuit by the private parties of the pretrial

prerogatives under Discovery an unusual

wealth of disparate claims and defenses were

asserted proviking broad questions of "attorney-

client privilege" and the refuge from Discovery

of genuine "lawyer's work-product."'

9. Before disposing of the conflict claims

and defenses of the private parties on the

matters of "privilege" and "work-product" the

Presiding Judge invited the Bureau to address

itself to the opposing positions (which it did)

as a kind of neutral party endowed with special

expertise not necessarily in the general rule of

law but certainly in the commercial ways and

habits of common carriers. By Memorandum

Opinion and Order, FCC 76-M-1529, November

1/ FCC 76-M-1453, released November 9,

es) 1976.

20a

23, 1976, the Presiding Judge defined the

parameters of the "attorney-client privilege"

and the ''work-product"' rule for the purposes of

this proceeding, refused to permit Complainant

to depose certain management personnel of

Western Union and provided for in camera in-

spection of certain documents in Defendant's

possession prior to ruling suggested by Com-

plainant.

10. On November 29, 1976, an informal

off-the-record conference was convened to

afford an opportunity to conduct the in camera

document inspection contemlated. On December

23, 1976, Western Union directed an interroga-

tory to Strouth based on certain material turned

over at the November 29 conference. This

pleading as well as a number of subsequent re-

lated pleadings were filed in a manner to pre-

serve its supposed non-public or confidential

character (Order, January 7, 1977, FCC

77-M-47). While both Western Union and the

Bureau urged compelling disclosure, the ruling

upheld Strouth's claim of attorney-client pri-

vilege and hence could not be used in examining

him.

11. On December 9, 1976, Strouth gave

notice of intent to take oral deposition of Jerry

L. Campbell, a former employee of Western

Union and specified that if Campbell wished to

invoke a Fifth Amendment he should do so by

November 20, 1976. Through counsel,

Campbell subsequently on December 2, 1976,

wrote Strouth's counsel to advise that he would

assert his Fifth Amendment privilege. There-

upon, Strouth asked of the Presiding Judge that

steps be undertaken pursuant to 18 U.S.C.

Sections 6001-2, 6004, to grant Campbell

immunity so that his testimony could be com-

pelled.

2la

12. ‘fo resolve the problems underlying

Campbell's position, Strouth sought and was

denied a 90 day continuance in the scheduled

hearing, (Order, FCC 76-M-1636, released

December 15, 1976). On December 21, 1976,

the Bureau, under the applicable procedure

in this agency formally requested this agency's

General Counsel to assist in obtaining a grant

of immunity for Campbell to the end that his

testimony, as being necessary in the public

interest, might be compelled. The Attorney

General of the United States subsequently author-

ized or affirmatively concurred in the requested

grant to Campbell to the end that his testimony

could be compelled.

13. Further prehearing conferences were

held on January 4 and 5, 1977, to consider and

dispose of pending procedural matters. A new

hearing date was also set for February 22, 1977,

in lieu of January 11, 1977.

14, On Januay 27, 1977, Strouth filed a

Motion for Summary Decision and Western Union © ~°

countersued for similar disposition on February

10, 1977. Ata further prehearing conference

on February 14, 1977, the private parties agreed

to withdraw their motions. A final prehearing

conference was held on February 18, 1977. The

hearing commenced on February 22, 1977 and

continued intermittently until March 9, 1977.

15. At the hearing session on February 25,

1977, the parties were invited to file briefs ad-

dressed to the question whether the Presiding

Judge has authority to award either attorneys

fees or costs generally to the plaintiff complain-

ant. The parties filed the requested briefs on

or about March 28, 1977. The record was ul-

timately closed by Order on May 20, 1977. All

parties eventually filed comprehensive proposed

22a

findings of fact and conclusions of law as well

as reply briefs.

This, as an Initial Decision, SHALL

FIND that Defendant Western Union on three

separate occasions violated Section 605 of the

Act; but since no proximately caused consequen-

tial damages were suffered by Complainant only

an award of nominal damages can be justified.

FINDINGS OF FACT

16. The Complainant (sometimes herein-

after Plaintiff) in this proceeding, Howard Steven

Strouth, was born in Frankfrut-am-Main,

Germany, where he attended the Goether Gym-

nasium. He later transferred to a public school

in England and continued his education at the

London Polytechnic Institute. Still later he at-

tended Cambridge University, took some courses

at the University of Milan, Italy and eventually

graduated as a mining engineer from the

Sorbonne, France.

17. At the outbreak of World War II Strouth

- served with the French Armed Forces and some-

time in 1941 emigrated to the United States when

he entered and subsequently served in the Army

of the United States and at.the Nuremburg Trials

in post-war occupied Germany. He returned to

the United States sometime in 1946 retaining a

reserve Army commission and retired with the

rank of Major in 1969. Although awarded the

title ''doctor" for some lectures at Bretton

Woods, Indiana, he uses the title as a "vanity

exercise'' because especially in Latin America

"one is not totally accepted as a professional" |

without that title. Whatever his customary title,

Strouth was involved in a variety of enterprises

as a mining engineer and promoter following

World War II.

a 23a

18. One of the companies with which

Strouth was associated was Norsul Oil and

Mining. His relationship with this company in-

directly led to this controversy. Norsul was a

holding company formed from an earlier com-

pany for the purpose of exploiting an oil con-

cession in Ecuador. Strouth had been an organ-

izer of Norsul in 1961 and was its Managing

Director from 1961 until he left the firm in 1971.

At that time, he sold his interest in Norsul in

return for a cash sum and a series of promis-

sory notes with the object of recovering money

owed him by the company and to enable him to

sell his shares in the company without contra-

vening U.S. Security and Exchange Commission's

(S.E.C.) restrictions which might affect him

while he had been in a position of control. It

would appear that Strouth received $130,000 in

cash plus a series of notes in the amount of

$55, 000 each, totalling approximately $350,000.

19. In the fall of 1974, Strouth was en-

gaged in two separate litigations in Canada.

The first involved a lawsuit in the Province of

Ontario against Phoenix Oil and Mining Co. and

as a result of that litigation Strouth was awarded

a judgment in the amount of $110,000 by the

court. The second lawsuit was in the Province

of Alberta, in the City of Calgary where Strovth

was suing for the collection of notes due.

Counter claims had been filed by Norsul in that

case. Learning that Strouth had received a

judgment in another province, Norsul sought

and gained an injunction issued by Mr. Justice

Kirby of the Supreme Court of Alberta blocking

distribution of the judgment funds to Strouth.

At that time Strouth was in Costa Rica where he

maintained his residence and attended to his

several business investments and ventures lo-

cated in other parts of the world.

24a

20. Upon receiving a telephone call from

his attorney, a Leslie Duncan, with offices in

Calgary, Canada, Strouth hurriedly gathered

together letters and other documents in an

effort to oppose and remove the injunction issued

by the Court in Calgary. Strouth had been asked

by attorney Duncan to get documents and proof

together and make it back to Calgary. It would

appear that Strouth undertook various steps to

butress the documentation requested by attorney

Duncan including the dispatch of cables and tele-

grams to business associates in other parts of

the world. Strouth then left Costa Rica for

Calgary with the materials he had gathered

stopping en route in New York City.

291. Strouth arrived late at night at the

John F. Kennedy International Airport and

checked into an airport hotel, the Hilton Inn.

After he had checked in, while attempting to

make phone calls and charge them to his hotel

bill, he was informed by the hotel operator

that he could not charge calls to his hotel room.

Then Strouth attempted to telehone Bernard

Hirschhorn, his New York attorney, who he felt

_might be of assistance in providing confirmation

that Norsul management had been on notice of

Strouth's dealings with the Phoenix Company

(which had a corporate relationship with Norsul).

22. Bernard Hirschhorn is a friend of

Strouth's and had served with him in the military

and has acted as an attorney both for Strouth and

members of Strouth's family. Also, Hirschhorn

had been an officer and director of Norsul and,

consequently, would have been a logical person

to confirm Strouth's story. Strouth called

Hirschhorn at his home between 11:30 p.m. and

12:00 p.m. on the night of September 21, 1974,

and asked Hirschhorn to send him a telegram in

Calgary which could be used in the Norsul

25a

proceedings. It would appear that Hirschhorn

explained that such a telegram would serve no

useful purpose and that Hirschhorn refused to

send the requested telegram himself but author-

ized Strouth, if he so chose, to do so himself.

Strouth did in fact that evening send himself the

telegram to Calgary in Hirschhorn's name. -

Hirschhorn did not, however, recollect the tele-

phone call but did not deny the possibility that

he might have received it since he received a

fairly large number of calls from Strouth. He

denied that he authorized the sending of the tele-

gram or that the telegram was sent with his

knowledge.

23. While there is an apparent conflict in

the versions of the incident between Strouth and

Hirschhorn, a lausible, thus reasonable, reso-

lution of that conflict would permit the notion

that inasmuch as Strouth probably spoke with

Hirschhorn on the night'6f September 21, 1974,

and though Hirschhorn may not have authorized

Strouth to send the telegram, Strouth in fact

thought he had such an authorization, at least

implicitly, and thus proceeded to send it.

24. As noted earlier, because the Hilton

Inn at Kennedy Airport, unlike a great number

of hotels, did not permit or accept charges for

outside services for its customary overnight

guests, Strouth resolved that problem by

calling Western Union, identifying himself and

charging the telegram to the telephone at his

New York office. While Strouth testified that he

identified himself when he phoned in the tele-

gram, Jerry L. Campbell, a former Western

Union employee, thought on the basis of Western

Union records Strouth had identified himself as

Hirschhorn. As the Bureau urges, it is more

reasonable to accept Strouth's version inasmuch

as he charged the call to his New York office

26a

and that apparently Western Union had checked

with the hotel to confirm that Strouth was stay-

ing there before they accepted the charges. And

as Strouth observed "obviously no one can call

up and say please charge this to John D.

Rockefeller, "

25. Strouth continued his trip early the

following morning and reached Calgary in the

afternoon of Sunday, September 22, 1974. He

thereupon searched for the telegram which he

eventually located but made no effort to contact

Hirschhorn to provide him with the exact text of

the telegram. Strouth gave a copy of the tele-

gram to his local attorney, Duncan, the following

morning but did not inform him at that time that

the telegram had not been sent by Hirschhorn,

Duncan attached the telegram to an affidavit

which was then furnished to a Mr. Code, counsel

for Norsul, on the morning of September 23,

1974, Code examined Strouth on this affidavit

subsequent to its attestation under oath by

Strouth but prior to its filing on September 30,

1974, in court, the Supreme Court of Alberta

Judicial District of Calgary. At that time, it

went in a court file presumably available for in-

‘~ gpection by the public at large and has not been

withdrawn since then. Strouth's thesis that the

affidavit was not before the court because of an

ongoing strike of court employees is clearly

undermined by the unrebutted testimony of

Barrister Code that the Courts remained in

operation during the strike.

26. The hearing on Strouth's application to

lift the restraining order was scheduled for

October 4, 1974, and in preparation for this

hearing Barrister Code telephoned Hirschhorn

to discuss Strouth's options with the Phoenix

Company and, to Code's surprise, Hirschhorn

would not say if he had sent the telegram and

27a

Code concluded that he had not done so. On the

same day, Code telephoned a Mr. Atkins, an

attorney with the firm of Whitman and Ransom,

in New York City and instructed him to investi-

gate the telegram. Specifically, Code told Atkins

to find out where the telegram came from and to

find out all he could about it. He did not, how-

ever, tell Atkins how to get the desired infor-

mation from Western Union.

27. Atkins began his investigation by call-

ing the number on the telegram read to him by

Code in order to learn who might answer--the

number proved to be that of a pay phone in the

lobby of the Hilton Inn at Kennedy Airport. Next

Atkins called a number listed in the telephone

directory for public service or customer service

at Western Union. He reached a man at Western

Union but does not know who it was. He in-

formed that person that he was an attorney,

that he had the text of a telegram, which in-

volved court proceedings and that time was of

the essence in gaining all the information con-

cerning it. This persuaded the Western Union

person that Atkins' situation would permit an

exception to the usual restrictions on the re-

lease of otherwise protected or confidential in-

formation and he agreed to provide Atkins with

a file copy of the telegram if Atkins would send

a messenger for it. Atkins denied that he

offered any improper inducement to obtain the

file copy or that he told the Western Union

person he was Strouth's attorney.

28. The file copy provided Atkins contain-

ed additional information on it beyond that which

Atkins already knew and he then took it toa

nearby Western Union office to get an expla-

nation of the symbols onit. He talked toa

woman but does not know her name. She did

not question Atkins' possession of the file copy

28a

and explained what he gave her; however, she

did not try to confirm it. Atkins did not offer

her any inducements for her help.

29. Since they were pressed for time,

Atkins prepared an affidavit describing what

they understood about the file copy of the tele-

gram including the fact that it had been tele-

phoned in from the Hilton Inn, the number to

which it had been billed (Strouth's New York

office) and the fact that it had apparently been

sent by Strouth. He then took it to Western

Union's main office. When he got there, he

asked to see someone qualified to attest to the

information in the proposed affidavit, and

ultimately ended up at Mr. Campbell's desk.

Campbell was Manager of Customer Services

at the Western Union Office at 60 Hudson Street.

30. According to Atins he told Campbell

that he wanted someone to verify the informa-

tion in the draft affidavit because he wanted to

take it to calgary that afternoon and time was

of the essence. Further, he states that he told

Campbell that he is an attorney and that the af-

fidavit would be used in court, but he denies

‘that he ever told Mr. Campbell that he was

Strouth's attorney. Atkins is sure that he ex-

plained the background of the matter to Mr.

Campbell; that Mr. Campbell knew that the tele-

gram had been used in a Canadian court; and

that Campbell knew he was Strouth's adversary.

Atkins could not recall whether Campbell tried

to confirm the accuracy of the affidavit despite

the fact that Campbell thought Atkins should

not have had the information to begin with.

Even so, Campbell did finally sign the affidavit.

And both Atkins and Campbell agree that no in-

ducement was offered for signing the affidavit.

After obtaining the notarized affidavit, Atkins

took it to Calgary and stayed there for one day

29a

to be available to testify, although he finally did

not have to do so.

31. Campbell's description of their en-

counter differs from Atkins' in some material

respects. According to Campbell, when Atkins

brought the draft affidavit to him and asked him

to verifv it Atkins said that he was going to

Canada with it but that it would not be used in a

court of law. Campbell either did not know or

could not recollect why Atkins wanted the affi-

davit under oath. Further, Campbell testified

several times that Atkins said he was repre-

senting Dr. Strouth. On other occasions, how-

ever, he conceded the possibility that Atkins may

have said only that he was an attorney and that

Campbell had misunderstood Atkins' statement.

32. Whether Atkins told Campbell he

represented Strouth is of importance in assaying

the confilicting positions. First, during

Western Union's in-house investigation of the

disclosure, which was concluded as far as

Campbell's role by December 11, 1974, he did

not tell the investigator, a Mr. Gordon

(Defendant's, Chief of Security and assistant

vice president), that Atkins had identified him-

self with Strouth. Campbell attributes this over-

sight to a lapse of memory. It nonetheless sur-

prised Gordon whe he learned of it. Second,

Campbell was on the witness stand between

hearing sessions. Despite the fact that seques-

tration of witnesses had been ordered at the

request of Strouth's counsel, it developed that

Campbell discussed the case with Strouth's

counsel between the hearing sessions of

February 22 and February 23, 1977, while he

was on the witness stand, and was told about

Atkins' testimony and the fact that he had al-

ready denied having claimed to represent

Strouth. Thus, although Campbell was

30a

surprised at the position attributed to Atkins,

it is not implausible that he moderated his own

statements in light of his knowledge of Atkins'

prior testimony to avoid involvement in testi-

monial conflict. In considering these matters,

however, Campbell conceded that his memory

on the witness stand was not so great. Thus,

Campbell's testimony on whether Atkins told him

that he represented Strouth is at least question-

able and nat wholly convincing.

33. While the request by third parties

seeking verification of telegraph messages was

unusual, this did not upset Campbell who felt

that the decision to provide the verification was

within the scope of his responsibilities. He was

aware of Section 605 and of Tariff Rule 24 but

did not feel that he was giving Atkins any new

information. And at the time it did not occur

to Campbell to call the Western Union Law

Department even though his superior at 60

Hudson Street, a Mr. Chestna, testified that he

felt Campbell did not require him to identify |

himself or to show credentials nor did Atkins,

on his own account, produce or show any identi-

fication. Instead, Campbell verified the tele-

‘phone number at the Hilton and then notarized

the affidavit in Atkins' presence. Inter alia,

Campbell felt that whoever called in the

telegram had identified himself as Hirschhorn.

While Campbell may have so concluded, other

facts would suggest that Strouth must have

identified himself as the sender, e.g., charging

the telegram to his own New York office tele-

phone account.

34. Strouth soon learned from his Calgary

counsel, Duncan, that the opposing counsel,

Code, appeared to have knowledge of details of

the telegram of September 21st which had not

previously been disclosed. At about this time,

3la

apparently, Strouth talked to Hirschhorn and

learned that he was planning a retraction of the

telegram. While Strouth was not too happy with

this development, he gave his consent for the

retraction. It was at about this juncture that

Strouth felt it necessary to tell Duncan that he

had sent the telegram, albeit with Mr.

Hirschhorn's consent. With this information

in hand, Duncan decided that he did not need to

rely on the telegram and would so advise the

court. Justice Kirby subsequently released

Strouth's funds.

35. Hirschhorn first learned of the

telegram when he received a call from a

Canadian attorney representing Norsul. He

feels that this was conceivably Code; Hirschhorn

was presumbaly describing Code's call of

October 2, 1974. Later, he was shown a copy

of the telegram by someone--perhaps Atkins.

Both Dr. Strouth and Céode agreed that a Mr.

Sargent of the law firm of Whitman and Ransom

put pressure on Hirschhorn to retract the tele-

gram since he, Hirschhorn,. did not want to be

involved. Hirschhorn discussed the proposed

retraction with Strouth before sending it out;

and while the retraction was not sent at anyone's

urging, the language was a result of conversa-

tions between himself and Sargent. It was sent

with the mutual approval and consent of himself

and Sargent. The retraction itself indicated

that the first telegram was not entirely accurate;

but it does not repudiate the use of Hirschhorn's

name as author. Moreover, as Strouth con-

ceded, although he had not been'authorized to

tell an untruth on behalf of Hirschhorn the

first telegram did contain an inaccurate use of

tense. Thus, whatever the origin of the tele-

gram was, it appears that Hirschhorn had

available a rationale for withdrawing it which

could not offend either of the contending sides.

32a

36. After Hirschhorn's retraction and

Justice Kirby's ruling in favor of Strouth on the

interlocutory order, the scene in Calgary quieted.

Strouth thinks that the Norsul litigation (the

second and unrelated Canadian proceeding) had

been due to come to trial on January 15, 1975,

Code does not think the case could have been

tried until Strouth completed certain undertakings

which he had made in pretrial proceedings. The

point may be moot, inasmuch as Code applied

for a Commission of Inquiry in Alberta. The

Commission subsequently took evidence in New

York, pursuant to Section 3102(e) of the New

York Civil Practice Laws, in March, 1975, and

the trial was postponed because of the instant

Commission proceedings.

37. It seems Strouth does not think the

Norsul case can proceed to trial in Calgary

until he is vindicated in the present proceeding.

Code on the other hand stated that the Norsul

litigation seems dead. Whether an FCC decison

would be considered relevant in Canada--and

Code was of the view that it would not be--

Strouth's Canadian counsel does not wish to pro-

ceed until something-has first been done at the

' Federal Communications Commission. Strouth

considers that many of these adverse conse-

quences flow from Campbell's affidavit which

implies that he lied in phoning in the telegram

and which might have been brought up in Calgary

if the proceeding had gone forward.

38. Strouth complained to Western Union

about the disclosure and seemed at first to get

a satisfactory response from Mr. Walton, a

Western Union attorney. In due course, how-

ever, Strouth concluded -that he was getting a

run around from Western Union and thereupon

complained to this Commission.

33a

39. Walton was a Western Union attorney

until June, 1975, and he directed the investiga-

tion of Dr. Strouth's complaint. He asked

Gordon, identified earlier, to investigate the

situation and find a contact in Calgary. Walton

was excused as a witness (subject to recall)

premised on the invocation by Western Union of

the attorney-client privilege. Western Union

subsequently reconsidered its position and

waived its asserted privilege with respect to

Walton. However, he was not recalled for

further testimony.

40. Gordon's job includes investigative

responsibilities for breaches of security with

respect to telegraph communications. Walton

sent Gordon a memorandum about the Strouth

matter on November 14, 1974; the memorandum

was received in Gordon's office on November 18,

1974; he actually read the memorandum and

attached file on either the 27th or 28th of

November, 1974. The first thing that Gordon

did was to seek a conference with Walton--this

conference was held on December 10, 1974. At

that meeting, it was agreed that the first pri-

ority was to investigate in Calgary to determine

whether there might be an ''excuse"'--e.g.,

pursuant to legal process--which might justify

the disclosure. The next priority would be to

try to determine what had happened in the New

York City area where the disclosure had

apparently taken place.

41. The following day, December 11, 1974,

Gordon called Campbell and talked to him for 10

to 15 minutes about the details of his contact with

Atkins. Gordon did notkeep any notes about the

conversation but he did ask Campbell to submit

a signed statement giving full details of all

contacts that he had with Atkins. This statement

was suplied to Gordon on December 12, 1974,

34a

and he could recall no differences between it

and his conversation with Campbell. Gordon did

not speak to Campbell again after he submitted

his statement.

42. On December il, 1974, Gordon also

called Mr. Joe Graziano, Area Manager of

Operations, Campbell's ultimate supervisor,

and asked him to investigate what had happened

and whether the source of the disclosure could

be isolated. Gordon checked back with Graxiano

on January 14, 1975, but nothing had been

learned. Graziano made only an oral report and

did not tell Gordon the extent of the investigation

he had conducted. And Chestna, Campbell's

immediate supervisor, related that Graziano

never asked about the circumstances of the dis-

closure. Gordon also contacted Mr. Bud

Geisler, Area Manager of Operations for the

Central Telephone Bureau in Morristown, New

Jersey, for investigatory help, but again he

received no written report and does not know

what Geisler actually did in his investigatory

efforts. Geisler never asked about the circum-

stances of the disclosure. The eventual report

given Walton was that they had been unsuccess-

‘ful in identifying whoever was responsible for

disclosures.

43. OnDecember 12, 1974, Gordon

called Mr. James G. Shea, an attorney in

Calgary, to have him look into the court

records there to see whether a court order had

ever been placed for records. Shea wrote

Gordon on December 19, 1974, to report that

no subpoena or other court process had been

issued in Calgary for the telegram.

44, Although Atkins was unknown to be

the person who obtained Campbell's affidavit,

Gordon never tried to talk to him. His

35a

recollection is that the possibility came up and

it was decided that either Walton or Monaghan-

another Western Union attorney-would handle the

interview. Whatever may have been learned,

Gordon was never told the results of the inter-

view. Indeed, until 1976 Gordon did not even

acquire the obviously relevant knowledge that

Atkins had obtained a file copy of the telegram

rather than just a copy of the message delivered

to Strouth. Gordon's explanation for this sit-

uation was that Walton was really the person in

charge of the investigation and it was his busi-

ness what he would tell Gordon. Also, Gordon

made no effort to advise this Commission or the

U.S. Attorney of a possible criminal violation

on the ground Walton was really the chief

investigator and in the best position to make a

judgment whether there was evidence to support

such a report. In this regard, Gordon could not

say whether it was company policy to report

possible criminal violations and that such

matters were problems for the Law Department.

45. The foregoing recitation of events and

acts clearly suggests that Western Union pays

little more than minimal attention to its obliga-

tion to avoid unauthorized disclosure of tele-

graphic communications. For further example,

Western Union Exhibit 1 contains Tariff Rule 24

which is a general directive to Western Union

employees to maintain secrecy of telegraphic

communications; however, examination of this

Rule indicates that it is based on the pre-1968

text of Section 605, a fact which poses a criti-

cal question when it was last seriously addres-

sed. Western Union Exhibit 2 has an attach-

ment which expresses a concern with secrecy

problems in its system. However, Gordon was

unaware of any problem and has never investi-

gated another unauthorized disclosure case.

No person at Western Union has specific

36a

responsibility with respect to preventing un-

authorized disclosures. The principal effort

which appears to be made in this regard in-

volves the distribution of periodic reminders to

employees not to disclose protected material.

The investigation of Strouth's complaint seems

to have had little effect on this: Indeed, Gordon

did not know of any steps taken since 1974 to

prevent unauthorized disclosures.

46. Both Chestna and Campbell described

the actual practices which were followed at 60

Hudson Street in 1974 and which are presumably

still followed. There are apparently no written

standards governing disclosures, albeit em-

ployees are told of their responsibilities to

maintain privacy and are instructed to ask a

supervisor if they are in doubt. Similarly,

there are no standards as to what persons must

do to identify themselves. If a question arises,

a written request might be demanded but in

practice the story an inquirer or caller tells

determines whether information is released.

And it is permissible practice at Western Union

for an employee to take a caller's word.

47. Employees are told that they can re-

lease copies of telegrams to the sender, re-

ceiver or an authorized agent, and that should

a third party want information about a telegram,

a subpoena would be required. But if the third

party already has the text of the telegram then

it would be assumed that he is entitled to it. It

might then be possible for the third party to get

a file copy. Once it has been decided to release

a file copy, it would not be unusual or surpris-

ing for billing information to be provided as

well. Moreover, after the decision to release

a file copy is made, there would be no com-

punction by Defendant about giving it toa

messenger. Similarly, although Gordon was

37a

surprised that anyone would state information

could be released on the telephone-since this

would be contrary to company policy-it appears

that this was the actual practice. The actual

practices at Western Union are entirely con-

sistent with Atkins' description of his first

contact with Western Union. In fact, Chestna

testified that if someone already had a file copy

of a telegram he would have verified it rather

than questioning the person's right to have the

copy.

48. In addition to the general informality

in deciding whether to release file copies or

billing information, there is no formal pro-

cedure designed to limit access by employees

o records of telegrams. Thus, Chestna

could not think of anyone at 60 Hudson Street

who could not obtain access to telegrams. The

evidence seems clear that under existing pro-

cedures employees could obtain and release in-

formation improperly and no one would be the

wiser. From the evidence it is not too much to

suggest that such general laxity in in-house

discipline on non-disclosure at Western Union

has not had greater trouble than it would appear.

Campbell provided an answer to the state of

affairs when in connection with a related ques-

tion he explained that a telegram can not be

retrieved without the telephone number it was

called in from, the date, and the filing time.

This specific information would rarely be

available to parties seeking unauthorized dis-

closures. |

49, On the last day of the hearing Western

Union proposed to call a rebuttal witness to

testify further with regard to Western Union's

policies and procedures under Section 605, and

the Common Carrier Bureau agreed that it would

be "quite desirable" for Western Union to bring

38a

in such a witness since besides the Bureau's

position, Western Union's general procedures

are highly pertinent to the issues in this pro-

ceeding. Subsequently, without explanation on

the record, Western Union elected not to call

such a witness.

50. Nowthe findings made to this point no

doubt reflect in large measure the proposed

findings of the Common Carrier Bureau, in the

Defendant's view-a kind of ally to the Plaintiff.

While the evidence fully supports those findings,

they of coursein a case of these dimensions and

novelty (in administrative jurisprudence), are

not the totality of possible record findings.

Principally, because a disposition at this level

is not the last word; both for a necessary rec-

ognition of the true worth of the Defendant's

proposals and a fuller appreciation of the

variety of nuances, factual and legal, for pos-

sible appellate consideration, other findings to

lend more clarity to the complex picture of the

immediate contest also can be an aid to the re-

viewer, perhaps, the reader, in arriving at a

fair and just disposition, as well as a better

understanding of the scope of the issues.

51. Unlike the Common Carrier Bureau

and the Plaintiff, Western Union would have,

(again unlike the Bureau which blithely, so says

the Defendant, chooses to ignore grave imper-

fections of the character of Strouth, the

Complainant)-Strouthas a pure pretender to the

title ''Doctor" bestowed by a hardly more than

ephemeral institute of higher learing-indeed,

nowhere to be found-a kind of colossal "name-

dropper" as an intime ofpinces, potentates and

Popes, all of whose pretensions are the self-

serving and self-enunciated titles and accom-

plishments rendered, (presumably for a fee),

in the publication "Who's Who in Canada"; and

39a

worse, one who has perpetrated or intended to

perpetrate a gross fraud ona Court of record

in our sister country Canada by asserting a

deceitful and misleading version of a telegram

made under his own hand in the name of another

without express permission. Whatever the value

of these deprecations and that value need not be

be assessedor addressed, under our system of

civil law, a just cause springs from the truth

of facts and circumstancw proved not the trap-

pings, real or fanciful, of a person. It can be

found though, with sufficient accuracy and per-

suasion, as urged by the Defendant, that the

subsequent telegram by Strouth's attorney and

friend, Hirschhorn, did not "satisfy" or ratify

Strouth's usurping authority to use Hirschhorn's

name in the telegram in issue (nor in truth, as

found earlier, did it abandon or disclaim it as

a fraudulent instrument). Defendant would have

the placing or filing of the telegram-in-issue,

with a sworn affidavit before the Canadian Court

labelled as an act of 'fraudulent intent." Since

that sister forum did not dispose of the merits

of the matter before it, premised on the affidavit

and telegram in question, and this forum neither

desiring nor pretending to second-guess what

that forum might ultimately concluded were it so

faced, that characterization by the Defendant can

be hardly more than a suppositious allegation;

and the extra-record urgings of the Defendant

attempting to disparage or demean Complainant

further by alluding to his name-changes, includ-

ing recent efforts at self-endowment of a title

of nobility are simply that; extra-record, with-

out evidential efficacy.

52. Though it is ancient practice and pro-

cedure in trial evidence to attempt to assail the

character of a party or witness in litigation in

order to diminish, discredit or impeach the

efficacy of one's testimony, particularly the

40a

trait of a witness or party always in issue, his

veracity; and save as an exception to the rule

excluding character evidence in civil cases,

unless inherently in issue, to affect the measure

of damages; (Cf. Trial Evidence, Chamberlayne

2d Ed. Section 608 (1936)), however, telling that

onslaught it has hardly dispositive value so long

as-as here- the character of a contesting party

is not a designated issue in that contest. What

Defendant really seems to be saying is princi-

pally, if not exclusively, it must be found that

Strouth by his unauthorized, perhaps, in

Defendant's view, devious, act of placing before

the Canadian Court the contents of his telegram

and having properly filed it, that act and that

act alone made it a public disclosure for all the

world to see and to know. Hence, on that

ground, at least, Defendant urges it is without

fault and innocent of any wrongdoing.

53. That thesis is hard to come by and ac-

cept as a finding, absolute and binding to its

very core, even though a brother Barrister and

Solicitor of the Canadian Bar, appearing as a

Defendant's witness (certainly not as an expert

or one otherwise learned in the Law of Canada),

‘~ ‘affirmed that filing, qua filing is a total public

disclosure. Whatever the impact of that sup-

posed ''disclosure" in Canada, this Commission

itself was not disposed to’ accept the full thrust

of that thesis, to wit, that a customer's di-

vulgence of the text of a telegram to a third

party constitutes implied consent to ® carrier's

divulgence of such a message (Crder, supra,

paragraph 10). On the other hand, since a fair

resolution of a legal contest must be founded on

human reason and experience, the thesis of

"disclosure in Canada" will receive its proper

consideration in the disposition hereinafter in

the overall considerations. This is not to say

that Section 605 of the Communications Act, as

4la

amended, can be ignored in the further dimen-

sions of the case at bar, i.e., disclosure or

release of telegraph company billing record..

Ultimate Findings and Conclusions

54. It is not too much to say that the tase

at bar presents wholly novel problems when

mirrored against the customary day-to-day

public duties and concerns of a Federal

Regulatory Agency such as this. Indeed, from

the events discussed in the designation Order,

Howard Steven Strouth v. The Western Union

Telegraph Company, 99 FC

which were more fully brought to light in the

evidence of record, whether new thresholds are

to be mounted or whether having an apparent

case of first impression foreordains the nec-

essity of that mounting, are themselves ques-

tions of no mean calibre. This precatory note

is prompted not by the issues to be tried (which)

are relatively familiar and not too abstruse) but

by the legal theories or theses propounded by

the Plaintiff/Complainant. which urge or suppose

a variety of Common Law wrongs and proposed

remedies as inhering in the evidence addressed

during trial under these issues:

(1) whether Western Union has violated

Section 605 of the Communications

Act; and

(2) what damages, if any, should be

. awarded to Strouth for any violation

found under issue (1).'

55. Some of the wrongs asserted by

Complainant because of "breach of warranty

under contract... [are] negligence, gross

negligence, negligent misrepresentation and a

further breach of a fudiciary relationship

42a

created by statutes of the United States, both

civil and criminal ...'' (Complainant's Proposed

Findings at page 4). Additionally, it would ap-

pear that Complainant urges ''that defendant's

negligence resulted in damage to Complainant's

reputation, since damage is traditionally viewed

as adjunct to libel and slander... [and that] the

disclosure [by Western Union] was a libel and

probably libel per se because it also was a viola-

tion of the criminal law" (18 U.S.C. Section

2511) (Complainant's Proposed Conclusions of

Law, page 75).

56. Whatever the heady variety of pro-

pounded civil wrongs (or in the idiom of law-

yers), torts, possibly ex contractu, the evidence

of record under the given issues must demon-

strate wrongful conduct by the Defendant Western

Union or its agents or employees; and that asa

proximate cause or nearest consequence of that

conduct, i.e., a violation or violations of

Section 605 of the Communications Act of 1934,

as amended-a recognizable injury at law befell

the Complainant. That having once found the

presence of the civil wrong or tort, its measure

of injury to the Complainant must, of necessity,

‘~ “be determined not only by apposite traditional

legal theory and precedent but, in this forum,

equally by the metes and bounds of the jurisdic-

tional mandate reposing in the parental or en-

abling legislative authority, the Communications

Act of 1934. That this is so flows from the

natural application of human reason and ex-

perience, while embracing and recognizing, as

urged by the Complainant and at times by the

Common Carrier Bureau, "the plain meaning

rule" of legislative construction; that the forum

of contest not only must know and apply its

mandated duty but also must fervently eschew

exceeding its bounds. This stance neither em-

ploys a retreat from judicial innovation or

43a

activism nor, equally crass, chooses the sup-

posedly safer route of timidity. Fora given

Laue saasuce - vere to succeed be within the

capacity, real or probable, of the task-doer.

This, of course, is not intended to be a prema-

ture forecast of the result here but simply the

touchstone upon which to reach a fair and just

disposition.

57. The evidence clearly sustains the

notion that neither Strouth nor Hirschhorn ever

expressly consented to the divulgence of either

the telegram or the related billing information.

That Strouth and not Hirschhorn was the author

or sender of the telegram and that Strouth sent

the telegram in Hirschhorn's name apparently

without explicity authorizaiton are equally clear

factual events. Also, the text of the telegram

was supplied by Strouth in an affidavit which was

entered in a court file in Calgary, Canada on

September 30, 1974, Which filing would appear

to be available for public inspection at least in

that sister country and could not have been with-

drawn since that date. us

58. On October 2, 1974, an individual who

was not able to be identified, but nevertheless a

Western Union employee, furnished a file copy

containing both the text of the telegram and the

associated billing information to lawyer Atkins

after Atkins requested it and demonstrated that

he possessed the text of the telegram. The file

copy was released without authorization or con-

sent of Strouth or Hirschhorn. What is of great

import, to re-emphasize, under the issues is

that the decision to release the file copy appears

to be in conformity with Western Union practices.

59. It may be further concluded that on

October 2, 1974, Atkins took the file copy of the

telegram to a Western Union employee who

44a

explained that symbols Atkins did not understand

and indicated that the telegram had been routed

through Morristown, New Jersey. The Western

Union employee did not consult any records in

supplying this information and had no knowledge

that Atkins' possession of the file copy was open

to question. Atkins prepared an affidavit which

contained his understanding of the coding on the

file copy of the telegram. On October 3, 1974,

he took the draft affidavit to Western Union's

offices at 60 Hudson Street with the object of

finding someone who could verify it for him.

The affidavit had the file copy of the telegram

attached. Campbell, Manager of Customer

Services, verified the telephone number of the

Hilton Inn but did not consult Western Union

records to verify any other part of the affidavit;

nonetheless, Campbell signed it. In essential

part, the affidavit confirmed that the wire was

phoned infrom the Hilton Inn; that it was charged

to Strouth's New York office phone and that the

individual calling in the telegram gave his name

as Bernard Hirschhorn. The critical events took

place between October 2 and October 4, 1974.

60. The three events which raise the issue

‘of violation of Section 605, clearly sustain the

following conclusions:

(a) On October 2,:1974, Mr. Atkins

telephoned Western Union and asked

an employee to supply him with a

file copy of the telegram. Despite

the fact that neither Hirschhorn nor

Strouth had consented to release of

the telegram, and that Atkins had no

authorization to obtain it; the em-

-~-ployee confirmed the existence of the

telegram (which contained both the

text of the original telegram and

billing information not contained in

45a

it as sent and not otherwise avail-

able) to Atkins. With this conduct,

simply in confirming the existence

of the telegram and next in furnish-

ing the file copy, Western Union

violated Section 605 of the Act, (59

FCC 2d 850, 855; see also, United

States v. Baxter, 492 F.2d 150,

167-68 (9th Cir. 1973), cert. denied,

414 U.S. 801 (1973)). Strouth's rev-

elation of the telegram in the Calgary

proceeding did not derogate from the

facts of violation; for while it may be

conceded that a public court record

of the telegram was made in litigation

(resolved without its use) it severely

strains reason to suggest that that

filing gave automatic license to

Defendant to divulge or disclose to

the world. _.

(b) Later on October 2, 1974, Atkins went

to a Western Union employee and

sought an explanation for certain sym-

bols on the file-copy. The Western ~~

Union employee did not consult any

records, did not have knowledge that

Atkins' possession of the file copy

was open to question under Section

605. This inheres in the earlier

violation and exacerbates itas a sep-

arate violation in a continuing mode

of Defendant's conduct.

draft affidavit (to which the file copy

of the telegram was attached) to

Western Union's offices at 60 Hudson

Street in an effort to find someone

who could certify to its accuracy.

Atkins was referred to Campbell,

Manager of Customer Services.

Again, Mr. Atkins had no authoriza-

46a

tion to be in possession of the file

copy, neither Strouth nor Hirschhorn

having consented to its use.

Campbell presumably concluded that

he did and thereupon verified the ac-

curacy of a telephone number (that

of the Hilton Inn) referred to in the

affidavit, but did not consult Western

Union's records to verify any other

part of the affidavit. Thereafter, he

attested to the accuracy of the affi-

davit before a notary. Both by certi-

fying the affidavit and by agreeing to

the attachment of the file copy to it,

Campbell, however mistaken, en-

gaged in conduct which led toa

separate violation of Section 605.

While Mr. Campbell was a person with

authority to certify to the accuracy

of the file copy, as noted earlier,

there is a certain ambivalence in the

record as to whose version of the

Campbell/Atkins. encounter is more

accurate and presuasive. Campbell

was at first certain Atkins had iden-

tified himself as Strouth's attorney,

thereby justifying disclosure under

Section 605, i.e., to a sender's

attorney. Campbell later was not

quite certain of this. Atkins denied

that he presented himself as Strouth's

attorney but that he did identify him-

self as an attorney. Atkins' testimony

denies Campbell's first version, e.g.,

"Q. Did you tell him (Campbell)

your relationship with the

person of Dr. Strouth?

A. What relationship is that?

47a

Q. That of an adversary?

A. Yes. Clearly he understood

that this was for the opposing

side, but also that the telegram

had been appended as an exhibit

to an affidavit that Dr. Strouth

had submitted." (Tr. 361). -

61. It is to be again remembered that

Campbell testified under a grant of immunity from

prosecution (having feared the possible conse-

quences of his role in the disclosure of the tele-

gram). That immunization, while in no way

granting license to testify falsely, nevertheless,

provided Campbell with less tense and more

relaxed circumstances in his description of

the event in which he was a principal actor.

But whatever the apparent conflict in the versions

of the Campbell/Atkins encounter, Campbell on

behalf of his principal (master) Western Union

did very little more than’ proceed under a mis-

conception, perhaps presumption, that he was

dealing with an agent or attorney of the sender

of the telegram. A far worse picture would

be that of Atkins having clearly identified him

self as hostile to and an adversary of the sender

Strouth and Campbell acting as he did. On

either score, be it Defendant's employee's

neglect or carelessness in not better assuring

himself of with whom he was dealing or, far

graver, ignoring the clear signal of danger of

unlawful disclosure where a stranger hostile to

Strouth was present, to proceed as he did,

Defendant, through the agency of Campbell,

without question, engaged in a violation of

Section 605 of the Communications Act.

62. At this juncture and as gleaned from

this record, a further word, or more, needs

be set out on the nature, effect, policy and

practice of Defendant Western Union in the

matter of guarding the secrecy or confidentiality

48a

of messages and other information of public

customers who pay to use its facilities. The

Common Carrier Bureau, as indeed the

Complainant, comes down hard on the superfici-

ality (if not slovenliness) of in-house discipline

of Western Union in this area of vital public

concern. The Common Carrier Bureau also

with reason even conjures that Western Union's

not having had "more trouble than it has with

unauthorized disclosures is purely fortuitous. "

63. What then is the nature of Defendant's

policy o protect the sanctity of the service it

renders to public customers It produced at

trial, apparently bearing a 1970 date "Notice

to Ali Fmployees and Telegraph Agencies

[subtitled! Tariff Book Rule 24, ' Briefly, and

to place in sharper focus earlier findings, this

Notice recites an outdated version of Section 605

of the Communications Act, a statement that

such Section 605 also applies to "intrastate

traffic’, some eight "Company Rules and

Regulations" and Telephone Handling, all of

which caution employees to be ever alert to

their grave responsibilities to insure the safe-

guarding of the secrecy of telegraph communi-

‘~ Cations. From the incidents in this record, the

effect or effectuation of that policy is hardly

discernible. Atkins, for example, whether he

identified himself as an attorney or not or

whether he was or was not the attorney of

Strouth, simply by telephoning and reading a

version of a telegram he had received from

Code in Canada was able to gain additional infor-

mation of a limited nature from a Western Union

employee (of unknown precise identity). In-

deed, testimonial evidence of a Western Union

employee, who was Manager, Operations

Planning and Support, at the time in question

reads "If information is going to be given out

over the telephone, the employee who is giving

out the information would take the calling party

49a

at his word, as to who he was. It is possible

if he was not going to give it out over the-

telephone he would request, "you know,

writing, if it was a business on the letterhead

or something to that effect." (Tr. 416).

"Q. Were there standards as to how a

person was to identify himself as

one of the people qualified to re-

ceive the telegram ?

~ No." (Tr. 423).

During the period in the latter part

of 1974, how much training, to

your knowledge, was Western

Union giving individual employees

with respect to the privacy pro-

visions of Section 605?

In general, they were handed a copy

of it and, you know, told to read it

and if they ‘had any questions to ask

a supervisor.

So there were no lectures as such.

No,

Were the supervisors getting train-

ing?

No more than the other employees.

They were simply receiving written

memoranda ?

Correct." (Tr. 427).

> OP OPO

In a word, the’whole thrust of this testimonial

evidence pictures Defendant's management as

well as Defendant's employees as relying on

paper policy, perfunctory memoranda, com-

munications and press releases with little foliow

through to assure at least a semblance of dis-

cipline and control over the subject matter of

statutoily proscribed divulgence or disclosure

of interstate or foreign communications by wire

or radio.

50a

64. Again, it is not too severe to repeat

and to note, as Complainant has urged, that

Defendant living and prospering in the privileged

luxury of monopoly enterprise has at best, under

the evidence, been found grossly wanting in the

performance of its grave statutory duty, which

demands, because of its privileged public

franchise, at least the exercise of reasonable

and prudent care in the execution of its public

duties. Indeed, as the Bureau pointedly notes,

when afforded the opportunity to explain, defend

or rebut the clear implication of its imperfec-

tions as a duty-bound guardian of the secrecy of

its communications business, Defendant Western

Union, at first, hesitated in its opportunity then

finally declined to do so.

65. That the evidence in this case dis-

closes the policy and practices of Defendant

Western Union in the protection of the inviola-

bility of communications over its facilities,

their content and meaning as required by Section

605, as, superficial, indeed little more than

gesturing is beyond question; the more accurate

term is, wretched; thus it would behoove the

Defendant as a corporate enterprise, if it has

not already done so, to institute forthwith in-

house measures looking towards much more

meaningful monitoring of its grave duties in

dealing with and servicing the paying public.