Letter Opinion 1970 No. 103

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                                                                    July 16, 1970
 
 
 
Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
Newport, Washington 99156
                                                                                                             Cite as:  AGLO 1970 No. 103
 
 
Dear Sir:
 
            We are in receipt of your letter dated July 8, 1970, inquiring as to the present status of your earlier request for our opinion on a question pertaining to the applicability of RCW 80.36.130 to the provision of free telephone services to any city or town.
 
                                                                     ANALYSIS
 
            As you know, RCW 80.36.130 states that:
 
            "No telephone or telegraph company shall charge, demand, collect or receive different compensation for any service rendered or to be rendered than the charge applicable to such service as specified in its schedule on file and in effect at that time, nor shall any telephone company or telegraph company refund or remit, directly or indirectly, any portion of the rate or charge so specified, nor extend to any person or corporation any form of contract or agreement or any rule or regulation or any privilege or facility except such as are specified in its schedule filed and in effect at the time, and regularly and uniformly extended to all persons and corporations under like circumstances for like or substantially similar service.
 
            "No telephone company or telegraph company subject to the provisions of this title shall, directly or indirectly, give any free or reduced service or any free pass or frank for the transmission of messages by either telephone or telegraph between points within this state, except to its officers, employees, agents, pensioners, surgeons, physicians, attorneys at law, and their families, and persons and corporations exclusively engaged in charitable and eleemosynary work, and ministers of religion,  [[Orig. Op. Page 2]] Young Men's Christian Associations, Young Women's Christian Associations; to indigent and destitute persons, and to officers and employees of other telephone companies, telegraph companies, railroad companies and street railroad companies."
 
            Of course, in so far as the second paragraph of this statute is concerned, the services provided to a city or town by a regulated telephone company in exchange for a franchise from the municipality to place and maintain telephone lines, etc., along the city's streets would logically constitute a service rendered for a consideration ‑ and, hence, not a "free" service in violation of this paragraph.  However, as was previously discussed with you by telephone, this approach to the matter at hand would only be viable to the extent that the consent of the city or town in question to the installation and maintenance of these facilities on its streets may presently be required as a condition to allowing such installations under the provisions of RCW 80.36.040.  See, also, Seattle v. Western Union Tel. Co., 21 Wn.2d 838, 153 P.2d 859 (1944).
 
            And furthermore, even if the consent of the subject city or town may be said to be required under this last noted statutory provision, so as to impart a consideration for the services to be rendered by the grantee of the franchise sufficient to take the case out of the purview of the second paragraph of RCW 80.36.130, supra, a necessity still would arise for the resulting contractual relationship between the city or town and the telephone company to be in accordance with the telephone company's tariff rates as filed with the state utilities and transportation commission under the first paragraph of RCW 80.36.130 Cf., North Carolina ex rel. Utilities Commission v. Wilson, 252 N.C. 640, 114 S.E.2d 786 (1960).  At least this would be true unless, somehow, a construction of the first paragraph of RCW 80.36.130 could be reached which would exclude a city or town (or other municipal corporation) from the scope of the term "person" as used therein.  Cf., Monroe Water Co. v. Monroe, 135 Wash. 355, 237 Pac. 996 (1925).
 
            However, in any event, without regard to the ultimate resolution of this last noted legal point, it is  [[Orig. Op. Page 3]] fairly evident that there must be a consideration (in the form of a franchise grant) moving from the city or town to the telephone company in return for its contemplated "free" services to the municipality in order to take the case out of the second paragraph of RCW 80.36.130.  It is believed that the next step to be taken, if you still desire us to provide you with an opinion on this question, is for you to supply us with a copy of the proposed franchise contract which the city or town and the subject telephone company are planning to enter into if approved by this office.  We would assume, from the standpoint of the city or town, that this contract would reflect a grant of consent by the city or town to the installation and maintenance of the telephone company's facilities upon the city's streets in accordance with RCW 80.36.040; and, likewise, from the standpoint of the contracting telephone company, we would assume that the contract would reflect its readiness and willingness to provide telephone services to the city or town hall "free" of any other charge and based solely upon the consideration of the franchise grant.
 
            Finally, of course, as we have previously indicated to you, it is only appropriate for us to provide you with official attorney general's opinions on questions pertaining to your duties and functions as a county prosecuting attorney.  We are not authorized by law to provide legal opinions at the request of municipal officers, city attorneys, or members of the public.  Therefore, we would assume that in requesting our opinion on your present question regarding RCW 80.36.130, supra, you are doing so from the standpoint of the possibility of a criminal prosecution for an asserted violation of the prohibitions contained in this statute.  See, RCW 80.04.385 and 80.04.390 with respect to the criminal penalties which may be imposed for violations of any of the provisions of our public utilities laws.  In addition to providing us with the foregoing materials, please confirm on this latter point, as well, if you still desire us to consider your opinion request.
 
            In the meantime, until we receive the above requested additional information and materials from you, it will be necessary for us to hold the further processing of your request in abeyance.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General