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AGO 1951 No. 189 - December 06, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

COUNTY FRANCHISES TO TELEPHONE COMPANY.

Purchase by a telephone company of duplicating telephone lines along routes over which the purchaser has a right, by franchise, to operate, does not impose upon such a purchaser, the franchise obligation of the seller telephone company.

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                                                                December 6, 1951

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                             Cite as:  AGO 51-53 No. 189

Dear Sir:

            We have your request for an opinion on the following question.

            Is Whatcom County exempt from the payment of toll charges for long distance telephone calls from Bellingham to other points in Whatcom County by virtue of a franchise granted by the county to Farmers Mutual Telephone Company in 1906?

            Our conclusion may be summarized as follows:

            If Pacific Telephone Company's authority to operate over roads in Whatcom County is independent of any right or obligation under the 1906 franchise, Whatcom County calls originating from Bellingham to other points in Whatcom County are not exempt from the toll payments regularly charged for long distance calls.

                                                                     ANALYSIS

            Under a franchise executed in 1906, the county commissioners of Whatcom County granted the Farmers Mutual Telephone Company the right to construct, maintain and operate telephone lines over certain designated county roads for a period  [[Orig. Op. Page 2]] of fifty years.  By resolution of the board of county commissioners in 1934, the 1906 franchise was construed to include all roads then existing, or thereafter established, in Whatcom County.  As part of the consideration for the rights granted thereunder, the franchise provides as follows:

            "That the county officials of Whatcom County, Washington, shall have at all times the free use of any line or lines of said Farmers Mutual Telephone Company for the transaction of any official business for the said County of Whatcom."

            The Pacific Telephone and Telegraph Company operates a telephone system within the City of Bellingham and has toll facilities extending from the city to various points in Whatcom County.  Many of the Pacific Company's Whatcom County toll routes are duplicated by Farmers Mutual facilities, and Pacific's Bellingham exchange supplies toll center service for Farmers Mutual long distance operations.  For several years, official county calls originating in Farmers Mutual exchanges have been routed over Farmers Mutual lines.  Likewise, official county calls originating in Bellingham to points in the county along duplicating routes were transmitted by Pacific over Farmers Mutual lines.  Pacific timed and ticketed such calls through its toll center and charged that expense against its toll settlement with Farmers Mutual.

            In 1950, Farmers Mutual, pursuant to its application to the Washington Public Service Commission and order of the Commission dated October 3, 1950, in Cause No. U-8387, sold to the Pacific Company its long distance lines running from Bellingham to various places in Whatcom County.  Specifically, the purchase and sale involved toll line plant along the Bellingham-Ferndale, Bellingham-Lynden, and Bellingham-Deming toll routes.  Subsequently, the county was advised by Farmers Mutual that the county thereafter would have to pay regular toll charges to the Pacific Company.

            Your request for an opinion as to county responsibility states in part as follows:

            "Due to the 1906 franchise, is Whatcom County entitled not to pay for long distance calls to other points in Whatcom County from Bellingham?"

            Presumably, the basis for possible non-payment of the regular toll charges rests on the theory that Pacific's purchase of the above‑mentioned facilities involved an assumption of the 1906 franchise obligation.  An examination of the Pacific Company's operating rights and obligations will indicate whether this theory is an appropriate one.

             [[Orig. Op. Page 3]]

            Under franchises executed in 1920 and 1924 by the county commissioners of Whatcom County, Pacific was granted the right to erect, maintain and operate a telephone system along enumerated roads in the county for a period of fifty years.  Neither of these franchises provides for toll-free service for official Whatcom County calls.  If the county roads named in the 1920 franchise included those routes along which Farmers Mutual duplicating toll lines were purchased in 1950, the Pacific Telephone and Telegraph Company thus possesses the right and authority to erect, maintain and operate telephone lines over the routes along which the Farmers Mutual lines were purchased, independently of any right or privilege granted to or obligation assumed by Farmers Mutual under the 1906 franchise.  If Pacific's authority to operate over said routes is independent of any right or obligation under the 1906 franchise, official Whatcom County calls originating from Bellingham to other points in Whatcom County are not exempt from the toll payments regularly charged for long distance calls.

Very truly yours,

SMITH TROY
Attorney General

LAWRENCE K. McDONELL
Assistant Attorney General

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