
    ABBOTT, PROCTOR & PAINE, ET AL. v. THE UNITED STATES
    [No. 458-61.
    Decided April 16, 1965]
    
      
      Charles R. Cutler for plaintiff. Kelley E. Griffith was on tbe brief.
    
      Gilbert W. Rubloff, with whom was Assistant Attorney General Louis F. Oberdorfer, for defendant. C. Moxley Featherston, Lyle M. Turner and Philip B. Miller were on the briefs.
    Before Cower, Chief Judge, Laramoee, Dureee, Davis and Collins, Judges.
    
   Per Curiam:

This case was referred pursuant to former Rule 45(a) (now Rule 57(a)) to Trial Commissioner Herbert N. Maletz with directions to make findings of fact and recommendation for conclusion of law. The commissioner has done so in an opinion and report filed on February 20, 1964. The defendant has excepted to the opinion and certain of the findings of fact. The parties have filed briefs and the case has been argued orally. The court agrees with the commissioner’s findings, his opinion and his recommended conclusion of law as hereinafter set forth and hereby adopts the same as the basis for its judgment in this case. Plaintiffs are, therefore, entitled to recover and judgment is entered for plaintiffs with the amount of recovery to be determined pursuant to Rule 47 (c) (formerly Rule 38(c)) .

OpinioN op Commissioner

The nineteen plaintiffs in this case are licensed brokers in securities and members of the New York Stock Exchange. All are subscribers to the Dow Jones News Service — a service by which teletypewriter machines (sometimes called tickers) located on the premises of subscribers print news on a continuous roll of paper. The news is transmitted by a teletype operator from the Dow Jones central office in New York City over private wires leased from the American Telephone & Telegraph Co. (AT&T) which interconnect with the teletypewriters of all subscribers in the United States. All such teletypewriters are activated by one sending operation so that all subscribers receive the news simultaneously.

During the period November 1,1957 through May 31,1959, plaintiffs paid on their subscription charges to the Dow Jones News Service the excise tax of 8 percent for “wire and equipment service” imposed by section 4251, as amended, of the Internal Revenue Code of 1954 (26 U.S.C. § 4251 (1958 ed.)), the amount of which aggregated $125,730.21. They bring suit to recover this sum plus statutory interest.

The case arises under sections 4251, 4252 and 4253, as amended, of the Internal Revenue Code of 1954 (26 U.S.C. §§ 4251, 4252, 4253 (1958 ed.)) which provide in part as follows:

§ 4251. Imposition of tax.
There is hereby imposed on amounts paid for the communication services enumerated in the following table a tax equal to the percent of the amount so paid as is specified in such table:
The taxes imposed by this section shall be paid by the person paying for the services.
§4252. Definitions.
(f) Wire and equipment service.
For purposes of this subchapter, the term "wire and equipment service" includes stock quotation and information services, burglar alarm or fire alarm service, and all other similar services (whether or not oral transmission is involved). Such term does not include teletypewriter exchange service.
§ 4253. Exemptions.
(b) News services.
No tax shall be imposed under section 4251, except with respect to general telephone service, on any payment received from any person for services used in the collection of news for the public press, or a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting, or in the dissemination of news through the public press, or a news ticker service furnishing a general news service similar to that of the public press, or by means of radio broadcasting, if the charge for such services is billed in writing to such person.
*****

As basis for recovery, plaintiffs contend that the Dow Jones News Service is a “news ticker service”; that the legislative history of section 4252(f) shows that news ticker services are not included within the statutory definition of “wire and equipment service”; and, therefore, that there is no basic taxing statute that imposes any tax on subscription charges to the Dow Jones News Service. Defendant disputes this and argues that the tax imposed on amounts paid for “wire and equipment service” includes all payments made for any service employing wire and equipment in the transmission of news or information between a point of origin and the subscriber’s premises, and that in any case, the Dow Jones News Service is not a “news ticker service” but rather a “stock quotation and information service” which is expressly taxed under section 4252(f).

Plaintiffs also maintain that even if the Dow Jones News Service should be encompassed in the definition of “wire and equipment service”, it is “a news ticker service furnishing a general news service similar to that of the public press” within the meaning of section 4253 (b) and that that section exempts from any tax all subscriber payments to the Dow Jones News Service. Defendant’s position, to the contrary, is that the exemption afforded by that section is applicable only to payments received from those subscribers of the Dow Jones News Service who are themselves one of the three news media specified by the section, i.e., the public press, a news ticker service furnishing a general news service similar to that of the public press, or a broadcasting agency. Defendant further contends that even assuming the section applies to amounts paid by a non-news media subscriber to a general news service, the Dow Jones News Service does not fall within the exempted category since it does not furnish a general news service similar to that of the public press.

The initial problem thus presented is to determine whether the Dow Jones News Service is a stock quotation and information service or a news ticker service, and if the latter. wliether it furnishes a general news service similar to that of the public press.

I

Dow Jones & Company was founded in 1882 by two reporters who established a business and financial service for the New York business community. In the early years, the information for this service was gathered largely from the Wall Street area and news reports were then written on slips of paper which were distributed by messenger at intervals during the day to the subscribers, most of whom were financial and brokerage houses in New York City. In 1889, the Dow Jones company organized a newspaper venture, the Wall Street Journal, for the primary purpose of printing the day’s grist of “slip” news. This was followed in 1900 by the addition of a telegraphic service to provide the same sort of news to subscribers. That service, which became known as the Dow Jones News Service, grew steadily over the years and in 1928 became nation-wide. During the period from 1930 to 1937, the telegraphic method of transmission was replaced by the faster teletypewriter method which is now in use. About one-half of the teletypewriters are owned by Dow Jones, while the others are leased from AT&T.

From 1882 through the early 1930’s, the content of the Dow Jones news slips and the Dow Jones News Service consisted mostly of news of corporate activity. However, an evolutionary change took place about 1933 with the advent of the Roosevelt Administration when governmental activities assumed a far greater influence in the lives of people than was the case previously. At that time the content of the Dow Jones News Service was substantially expanded to include governmental, labor and international news.

At present Dow-Jones & Company has a staff of 125 reporters who serve both the Wall Street Journal and the Dow Jones News Service. It maintains 23 news bureaus from which news is transmitted to the Dow Jones central office in New York City over teletype wires leased from AT&T. The central office also receives news from part-time correspondents; from press association services (i.e., the Associated Press, United Press International and Reuters, the British news agency); and from various stock and commodity quotation ticker services operated by tlie exchanges which report individual transactions. At the Dow Jones central office, 17 employees, who work exclusively on the Dow Jones News Service, edit and headline the incoming news and then send it out over the teletypewriter circuits to the subscribers. Dow Jones Averages are printed hourly on the ticker, as are all dividend announcements by corporations listed on the New York Stock Exchange. Apart from that, the editorial staff determines what items will be carried based on- their judgment as to whether they will be of interest to thie subscribers.

The Dow Jones News Service is designed to provide immediate information about current business, financial, national, international, and other types of general news events to persons who are in business and those who are investors or potential investors. As of June 30,1962, it had 1,010 subscribers located in 644 cities in 48 of the 50 States. Among the subscribers were 475 brokerage firms; 220 securities dealers; 71 banks; 61 clubs; 46 publishing companies, including newspapers and press association services; 29 manufacturers; and 22 securities and commodities exchanges. The remaining subscribers included various other types of industrial concerns; advertising and public relations agencies; and individuals.

Typically, the Dow Jones New Service operates from 9:00 A.M. to 5:00 P.M. (New York time), Monday through Friday, corresponding to the ordinary hours of occupancy of a business office. On occasion it operates beyond the normal closing time, particularly when compilation of Dow Jones Averages is delayed by reason of the New York Stock Exchange ticker running late. It also will operate beyond the normal closing time to complete the coverage of a major news event of significant interest.

Based on five representative daily transcripts of the Dow Jones News Service, it appears (1) that about 74 percent of its content by lineage and about 84 percent of its content by items are devoted to business and financial news of a kind usually found in the business and financial pages of a daily newspaper; and (2) that about 26 percent of its content by lineage and about 18 percent of its content by items are devoted to general news events similar to those published in daily newspapers.

As to business and financial news, the content of the Dow J ones News Service includes reports on new stock and bond offerings; corporate earnings reports; dividend announcements ; corporate financing plans; news about plant expansion and relocations; news about new products and technological developments; merger and acquisition announcements ; and corporate sales trends and pricing policies. The content also includes representative stock and bond quotations which are carried periodically during the day to show the trend of the market. Complete stock, bond or commodity quotations are not carried.

The general news items contained in the Dow Jones News Service pertain to events occurring during its hours of service and are similar in content to articles appearing on the front pages and other general news pages of leading daily newspapers. Thus, the service includes fairly detailed articles about major national and international news developments ; news concerning Government actions and announcements; news about legislative actions and judicial decisions; labor news; weather reports; etc. However, it does not carry articles that deal with society, crime, religion, entertainment or the arts unless the event is of general national interest or has significant business implications. It does not carry sports stories unless the event is one of broad interest, such as the World Series — a play-by-play account of which has been transmitted each year for a number of years. Nor does it contain local news, columnists, or advertisements. Examination of the daily transcripts indicates that if a person used the Dow Jones News Service as an exclusive news source, he would become reasonably well informed immediately about the most important national and international news developments but would not get the range of news that he would by reading a daily newspaper such as the New York Times.

Plaintiffs who are brokers subscribe to the Dow Jones News Service to obtain for themselves and to pass on to their customers immediate information about current financial and business developments, and about major national, international and other types of general news events, which information might affect the market investments and financial interests of their customers. Generally they keep the ticker in a room where the tape may be read by customers and the public. While some customers and others who visit plaintiffs’ offices read the news on the ticker so that they can make their own analysis of events that may affect them as investors, most customers receive such news by telephone from plaintiffs’ employees. Plaintiffs also uniformly subscribe to various ticker services operated by securities and commodities ex-bhanges, and they rely on those services rather than the Dow Jones News Service for actual market quotations. The reason for this is that a stock exchange ticker, as an example, carries complete information about all stock sales as they occur on the floor of the exchange by reporting the latest sales, the number of shares sold, and the price therefor, and hence provides a continuous picture of the market as it changes from moment to moment. Occasionally, a stock exchange ticker also transmits information concerning the expulsion of a member, stock dividends, and notices of the exchange, but does not carry other types of news items such as those dealing with international events, weather, sports, etc.

The Dow Jones News Service, on the other hand, in addition to carrying representative stock quotations at regular intervals during the day to show the trend of the market, as well as a considerable amount of information dealing with market summaries and comments, provides coverage far beyond this. For it transmits a broad range of business and financial news and a quantitatively substantial amount of news devoted to major national, international and other types of general news events. Considering the wide spectrum of its news content, it would be strained indeed to characterize the Dow Jones News Service as a stock quotation and information service within the meaning of section 4252(f). Father, it seems apparent from its content that it is most appropriately classified as a news ticker service.

There thus remains for determination the question as to whether the Dow Jones News Service, as a news ticker service, furnishes “a general news service similar to that of the public press” within the meaning of section 4253(b). Neither the Code nor the legislative history of the section provides clear indication of what is meant by the term “general news”; however, the Federal Communications Commission has recently adopted a definition of the term that has applicability here because of the expertise of that Government agency in the communications field with which the present case is concerned. The FCC defined “general news”, as follows:

The term “general news” includes an account of current events; public announcements; information relating to finance, science, commerce, religion, civic or other public organizations; and all like information of general public interest.

In this context, it is apparent that the Dow Jones News Service publishes a substantial amount of general news articles, many of which deal with major national, international and other types of current events; that such articles are carried not as “filler” or occasional highlights but rather as an integral and important part of the Dow Jones News Service coverage; and that many of the articles in this category which are carried by the Dow Jones News Service also appear on the front pages of several prominent newspapers either on the same or following day. Defendant suggests, however, that the fact that the Dow Jones News Service does not generally carry news items dealing with sports, society, crime, religion, the arts or entertainment indicates that it is not a “general news service.” But this line of reasoning would lead to the anomalous conclusion that a news ticker service devoted exclusively to coverage of national and international current events, but carrying no news of sports, society, crime, religion, the arts or entertainment, would not be a general news service — a result that Congress could hardly have intended.

Further, it would seem immaterial that the Dow Jones News Service emphasizes business and financial news. In analogous situations involving determinations of what are newspapers of general circulation, the courts hold uniformly that “a newspaper is one of general circulation, even though it is devoted to the interests of a particular class of persons and specializes in news and intelligence primarily of interest to that class, if, in addition to such special news, it also publishes news of a general character and of general interest, and to some extent circulates among the general public.” See annotation 68 A.L.R. 538, 541 (1930), and cases there collected.

Similarly immaterial is the fact that subscribers anticipate that their business will benefit by reason of their subscription to the Dow Jones News Service. The determining factor is the content of the service, not its use.

Nor is it without significance that in 1955, the Internal Revenue Service, after careful and thorough consideration of all data and information in its file, as well as data and information furnished by Dow Jones, reached the conclusion— which up to the time of trial herein it has not changed— that the Dow Jones News Service was a news ticker service furnishing a general news service similar to that of the public press, within the meaning of section 4253(b). The Internal Revenue Service reached this conclusion after considering much of the same kind of data and information that has been presented in evidence here. Thus it considered: the contents of daily transcripts of the Dow Jones News Service in comparison with the contents of the New York Times and the Wall Street Journal; data showing the origin of the service, the number of employees, a breakdown of subscribers and related information; a number of sample advertisements; and the manner in which the service was furnished technically. In these circumstances, the agency’s determination as to the status of the Dow Jones News Service — while it may not be decisive — is nonetheless entitled to some weight.

On the basis of all these considerations, it is concluded that the Dow Jones News Service is a news ticker service furnishing a general news service similar to that of the public press, within the meaning of section 4253 (b). Consequently it is necessary to determine whether such a news ticker service is included within the section 4252(f) definition of a “wire and equipment service” subject to the excise, and whether, in any event, section 4253 (b) exempts from taxation all subscriber payments. This involves the task of construing these statutory provisions, for which purpose the applicable legislative history is now examined to ascertain the Congressional intent underlying their enactment.

II

For all practical purposes the Eevenue Act of 1932 marks the beginning of the legislative history of the Internal Eev-enue Code pertinent to this case. Section 701 of that Act imposed an excise tax on telegraph, telephone, radio and cable facilities, and read as follows:

§ 701. Imposition
(a) On and after the fifteenth day after the date of the enactment of this Act, there shall be imposed—
(1) in the case of each telegraph, telephone, cable, or radio dispatch, message, or conversation, which originates on or after such date and before July 1,1934, within the United States, a tax at the following rates:
(A) Telephone conversations for which the charge is 50 cents or more and less than $1,10 cents; for which the charge is $1 or more and less than $2, 15 cents; for which the charge is $2 or more, 20 cents;
(B) telegraph dispatches and messages, 5 per centum of the amount charged therefor; and
(C) cable and radio dispatches and messages, 10 cents; but only one payment of such tax shall be required, notwithstanding the lines or stations of one or more persons are used for the transmission of such dispatch, message, or conversation; and
(2) a tax equivalent to 5 per centum of the amount paid on or after the fifteenth day after the date of the enactment of this Act to any telegraph or telephone company for any leased wire or talking circuit special service furnished on or after such date and before July 1, 1934. This paragraph shall not apply to the amount paid for so much of such service as utilized in the conduct, by a common carrier or telephone or telegraph company or radio broadcasting station or network, of its business as such.
(b) No tax shall be imposed under this section upon any payment received for services or facilities furnished to the United States or to any State or Territory, or political subdivision thereof, or the District of Columbia, nor upon any payment received from any person for services or facilities utilized in the collection of news for the public press or in the dissemination of news through the public press, if the charge for such services or facilities is billed in writing to such person. The right to exemption under this subsection shall be evidenced in such manner as the Commissioner with the approval of the Secretary may by regulation prescribe.

Shortly after enactment of this legislation, the Bureau of Internal Revenue, in response to Dow Jones’ request for clarification of its taxable status, issued a letter ruling dated July 16, 1932, which provided: (1) that the collecting and publishing of business and financial news in the maimer employed by the Dow Jones News Service involved “the transmission of telegraph dispatches and messages within the meaning of the Act; and that to that extent Dow Jones & Company is a telephone or telegraph company within the meaning of section 701(a) (2) of the Act, with respect to leased wires”; (2) that Dow Jones should accordingly “collect from its customers the tax imposed by section 701 (a)(1) (B)” on a specified portion of the subscription payments which the Bureau and Dow Jones agreed represented transmission charges; and (3) that since Dow Jones was a telephone or telegraph company, the amounts it paid to the telephone or telegraph company for leased wires and teletypewriters were not subject to the tax.

No statutory changes of significance were made in the period from 1932 to 1940, inclusive. Sections 701(a) and 701(b) of the Revenue Act of 1932 were re-numbered by the Internal Revenue Code of 1939 to sections 3465 and 3466, respectively.

On November 8, 1940, Dow Jones wrote to the Commissioner of Internal Revenue concerning its liability for collection of tax on telegraph, radio or cable messages or facilities under the provisions of section 3465 of the 1939 Code. Replying on December 2,1940, the Bureau issued the following new ruling reversing its ruling of July 16,1932:

The question of whether the charges made by you for news services furnished to your subscribers by _ means of broad tape printers and teletywriter equipment are subject to tax, either as leased wire services or charges for transmission services, has recently been taken up for reconsideration by the Bureau.
It is held that Dow, Jones and Company, Inc. is not a telephone or telegraph company within the meaning of subsection (b), section 3465 of the Internal Revenue Code, and that the amounts paid to your company for ticker services do not represent amounts paid to a telephone or telegraph company for leased wire services within the meaning of subsection (b) of section 3465.
It is also held that the monthly charges made to your subscribers for such news services are not charges for the transmission of messages within the meaning of section 3465(a) of the Internal Revenue Code. Therefore, your company is not liable for collection from your subscribers of the tax imposed by section 3465 (a) or (b) of the Code. This ruling supersedes the ruling furnished you on July 16,1932.
It is held that the amounts which you paid to the telephone and telegraph companies for the lease of the wires or any other equipment in connection therewith are properly subject to tax under subsection (b) of section 3465 of the Internal Revenue Code. If any of the wires leased by your company are used solely in furnishing news to the public press or gathering news for the public press, the amounts paid for the rental of such wires are exempt from tax.
Since the telephone and telegraph companies will be liable in the future for collection from you of tax on leased wire services, it is requested that you furnish to this office at your earliest convenience a list of the companies from whom the wires are leased by you.
The additional evidence required in connection with your claim for refund of tax paid on services furnished to your subscribers where such services are in a local area will be the subject of a separate communication.

This change in concept on the part of the Bureau — from the concept of Dow Jones functioning as a “telegraph company” to the concept of its not functioning as such — had several necessary consequences. First, since Dow Jones was not a “telegraph company”, no part of the payment it received from subscribers was subject to the excise. Also, not being a “telegraph company”, none of the payments made by Dow Jones to telegraph companies were exempted from tax under the statutory exemption relating to payments for facilities by one telegraph company to another. Hence, payments by Dow Jones to telegraph companies for leased wires and other facilities became subject to the excise tax except to the extent that such facilities were used solely in furnishing news to, or gathering news for, the public press.

The Bureau’s 1940 ruling thus relieved Dow Jones from all further obligation to act as a tax collecting agent with respect to its news ticker service revenues. However, the ruling also brought into focus for the first time the status of the wires and equipment leased and paid for by Dow Jones ■ for use in the collection of its hews and in its dissemination through its news ticker service. Open to question by the ruling was whether the wires and other facilities it leased from telegraph companies were used solely in the collection and dissemination of news for and by the public press — a question turning on whether or not the Dow Jones News Service was part of the public press on a parity with the press association news services.

Against this background, the House on August 2, 1941, approved H.E. 5417, the bill which was subsequently enacted into the Eevenue Act of 1941. Section 548 of that measure, as approved by the House, imposed for the first time a tax on the revenue of “wire and equipment services” and specifically included “news ticker services” in the category of such services. More particularly, section 548 of the bill added a new section 3465(a) (2) (B) to the Internal Eevenue Code of 1939 to impose an excise tax equivalent to 5 per cent of the amount paid for:

(B) Wire and equipment services (including teletypewriter service, burglar alarm service, news ticker services, stock quotation and information services, and all other similar services. The tax shall apply under this paragraph whether or not the wires or services are within a local exchange area. (Emphasis added.)

The report of the House Committee on Ways and Means (in which Committee the provision had originated) explained the new section as follows (H. Rept. 1040, 77th Cong., 1st Sess., p. 32):

The 5 percent tax on leased wires and talking circuits is retained and the base is expanded to include wire services such as teletypewriter service, burglar alarm service, news ticher service, stock quotation and information services, and the like. (Emphasis added.)

The effect of this provision, it appears, would have been to impose for the first time a tax on the entire subscription charge for the Dow Jones News Service by reason of the specific reference for the first time to “news ticker services” in the taxing provision applicable to “wire and equipment services” and the statement in the House Committee report that the provision involved an expansion of the tax base. In view of these considerations, the “public press” exemption would in all likelihood have been construed as being inapplicable to the Dow Jones News Service despite its position that it was performing solely a “public press” function. Such construction would also have meant that payments made by Dow Jones to telegraph companies for leased wires and other facilities used in the collection of its news and in its dissemination through its news ticker service would not have been covered by the “public press” exemption.

It was in this setting that Kenneth C. Hogate, president of Dow Jones & Company, sent the following letter, dated August 21,1941, to Senator George, Chairman of the Senate Finance Committee, which was then considering H.R. 5417 as approved by the House:

Ee: sections 3465 and 3466 of the 1941 revenue bill.
Dear Senator George: An attempt would probably have to be made to construe the tax imposed on news ticker services, section 3465, subsection 2 (p. 55, lines 2 and 3), as now worded, as applying to the Dow Jones news service, although that service clearly and undeniably constitutes the public press function of disseminating news. Any such attempt would unquestionably be expensive and embarrassing, because the present language of the bill jeopardizes Dow Jones recognized press standing of 40 years.
Section 3466 especially excludes the press from the provisions of the previous section. We are not asking for any special exemption and accept any tax levied on the press. Eather than appear at the hearings on what is really a non-controversial matter, I take the liberty of writing to you, with the respectful request that this letter be entered as part of the committee records so that it will be before the members of the committee when you reach the discussion of these sections of the bill.
I am sending copy of this letter to the Honorable John L. Sullivan, Assistant Secretary of the Treasury, in the belief that changes which will clearly bring the Dow Jones news service out from under this cloud of doubt will not be resisted by the Treasury.
May I suggest that the necessary changes could easily be made ? They involve only deletion of the words “news ticker services” in section 3465 and defining “the public press” in section 3466 in such a way as expressly to include every method by which press news may be disseminated to the public through the medium of the written word.
If further information is desired, I shall be most happy to hear from you. I refrain from going into detail simply to conserve your committee’s time and because the facts are not in question anywhere.

The Senate Finance Committee in reporting H.E. 5417 to the Senate on September 2,1941, amended the House bill but not in the form suggested by Mr. Hogate. Eather, it amended that portion of the House bill which proposed to tax “news ticker services” to specifically exclude “news ticker services.” Thus, the Senate Finance Committee’s version of the proposed new section 3465(a)(2)(B) of the Code imposed:

(B) A tax equivalent to 5 percent of the amount paid for any wire and equipment service (including stock quotation and information services, and all services, but not including news ticker services furnishing a general neves service similar to that contained in the public press, burglar or fire alarm service, or service described in subparagraph (A)). (Emphasis added.)

The following excerpts from the Senate Finance Committee Keport are pertinent :

The House bill continued the present rate of 5 percent upon leased wire or talking circuit special, service, but added to this category certain wire and equipment services such as teletypewriter servi.ee, burglar-alarm service, news ticker service, stock quotation and information services. Your committee bill places leased wire, teletypewriters, or talking circuit special services in one category and increases the tax on the amounts paid therefor from 5 to 10 percent. It leaves in effect the 5-percent rate with respect to other wire and equipment services, such as stock quotation and information services, but specifically excludes news ticker services where a general news service similar to that contained m the public press is furnished. Likewise, amounts paid for burglar or fire-alarm services are exempted. (Emphasis added.)
The bill as it passed the House continues the present 5 percent rate. The amendment increases the rate to 10 percent in the ease of leased-wire service, teletypewriter service, and talking cii~cuit special service (which petes with telegraph service subject to tax under the amendment at 10 percent). Other wire and equipment service is in a somewhat different category, and as to it no change in the 5 percen~t rate provided by the House Bill is recommended. Burglar and fire alarm service is not taxed under the amendment. S't'imilar~, `news ticker service carr~ying general news ha~ been ea~emp ted fro'm the taa~ to be consistent wit/b the like exern~ptions allowed in the ease of newspapers with respect to the leased-wire taw. (EmDhasis added.)

On September 3, 1941, Senator George presented to the Senate the Committee amendment of section 3465(a) (2) (B) and the following occurred (87 Cong. Rec. 7270):

Mr. George. Mr. President, it may be necessary to make a technical amendment to this section and I ask that if the amendment shall be agreed to, we may have the right to recur to it if necessary.
The Presiding Oeeicer. Is there objection? The Chair hears none, and it is so ordered. The question is on agreeing to the amendment.
The (Committee) amendment was agreed to.

On September 5,1941, Senator George offered this “technical amendment” to tbe Committee amendment which was agreed to by the Senate (87 Cong. Rec. 7363):

Mr. George. Mr. President, I offer another amendment, which speaks for itself. It is intended to make certain that the general news ticker service is classed as part of the general press.
The Presiding Oeeicer. The clerk will state the amendment.
The Chiee Clerk. On page 80, lines 6,7, and 8, it is proposed to strike out “news ticker services furnishing a general news service similar to that contained in the public press.”
The Presiding Oeeicer. In order that the amendment may be considered it will be necessary to reconsider the vote by which the committee amendment on page 80 was agreed to. Without objection, the vote by which the amendment on page 80, line 3, was agreed to is reconsidered, and the question is on agreeing to the amendment offered by the Senator from Georgia to the amendment of the committee.
The 'amendment to the amendment was agreed to.
The amendment as amended was agreed to.
The Chiee Clerk. On page 81, lines 11 and 12, after the word “press”, it is proposed to insert “, or a news ticker service furnishing a general news service similar to that of the public press.”
The Presiding Ofeccer. The question is on agreeing to the amendment.
The amendment was agreed to. (Emphasis added.)

The effect of the floor amendments was to eliminate from the Senate Finance Committee version of section 3465(a) (2) (B) any reference to news ticker services and instead to cause the pertinent portion of the exemption provision (section 3466) to read as follows:

(b) No tax shall be imposed under section 3465(a) (1) and (2) upon any payment received from any person for services or facilities utilized in tbe collection of news for tbe public press, or a news ticker service furnishing a general news service similar to that of the 'public press, or radio broadcasting, or in tbe dissemination of news through tbe public press, or a netos ticker service furnishing a general news service similar to that of the public press, or by means of radio broadcasting, if the charge for such services or facilities is billed in writing to such person. (Emphasis added.)

The Conference Committee accepted the Senate-passed version of both sections 3465 and 3466 with respect to the amendments dealing with news ticker services. The Conference Committee, in addition, restored the tax on burglar alarm and fire alarm service.

The Conference Report contains the following statement of the managers on the part of the House (H. Rept. 1203, 7Yth Cong., 1st Sess., p. 15):

Amendment No. 96:
% sji %
Section 548 of the House bill also imposed a tax equivalent to 5 percent of the amount paid for (A) leased wire or talking circuit special service or (B) wire and equipment service (including teletypewriter service, burglar alarm service, news ticker service and stock quotation and information services and all other similar services). The amendment imposes a 10 percent tax with respect to leased wire, teletypewriter or talking circuit special service and a 5 percent tax with respect to amounts paid for wire and equipment service, but not including burglar or fire alarm service.
The House recedes with an amendment subjecting burglar and fire alarm service to the 5 percent tax. (Emphasis added.)
‡ ‡
Amendments Nos. 98 and 99: The House bill, in certain cases, exempts from the taxes under section 8465 of the Internal Revenue Code, as amended by section 548 of the House bill, any payment received from any person for services or facilities utilized in the collection of news for the public press, or radio broadcasting, or in the dissemination of news through the public press. The amendments also exempt news-ticker services furnishing a general news service similar to that of the public press; and the House recedes. (Emphasis added.)

On September 17,1941, Senator George advised tbe Senate as follows with regard to the Conference Report (87 Cong., Rec. 7438):

The Senate amendments with respect to telephone, telegraph and cable dispatches, and so forth, were agreed to with the following exceptions:
The exemption under the Senate bill of burglar or fire-alarm service from the 5 percent tax with respect to amounts paid for wire and equipment service was eliminated. The tax on local telephone bills which was fixed under the Senate amendment at 10 percent was reduced to 6 percent.

The statutory provisions recommended in the Conference Report were adopted by the Congress and enacted into the Revenue Act of 1941. Since then no changes of substance have been made in the statutory provisions pertinent to the issues in this case. Subsequently section 3465 of the 1941 Act became sections 4251 and 4252 of the Internal Revenue Code of 1954 and section 3466 of the 1941 Act became section 4253 of the 1954 Code.

In considering the foregoing legislative history, it is significant that the House-approved version of the 1941 Revenue Bill contained a provision taxing for the first time “wire and equipment services,” specifically including therein “news ticker services”; and that the Senate Finance Committee version of the bill amended that provision to specifically exclude “news ticker services”. Thus, the bill as reported to the Senate floor would clearly have exempted from the excise on wire and equipment service all subscription payments to the Dow Jones News Service, assuming it was a news ticker service furnishing a general news service. However, the bill, as thus reported, did not include such news ticker services within the “public press” exemption— an omission which meant that since the Dow Jones News Service was neither within the “public press” category, nor a telegraph company (by virtue of the 1940 Bureau ruling), its payments to the telegraph company for facilities for use in the collection and dissemination of its news would be subject to the excise tax. Alternatively, the omission of general news ticker services from the “public press” exemption meant that should the Bureau, reverse its 1940 ruling and again hold Dow Jones to be a telegraph company, at least a portion of its subscription charges would once more be covered by the excise.tax on transmission of telegraph messages. It was in this context that Senator George, obviously acting in part at least on the suggestion contained in the Hogate letter, offered in the Senate the technical amendment — which was subsequently enacted — to amend the Committee amendment by deleting from the taxing section the provision excluding “news ticker services * * *” and to include such services in the “public press” exemption.

The legislative history indicates, however, that Congress did not intend by such action to include “news ticker services” within the category of “wire and equipment services” subject to the excise. For if Congress had so intended, it seems highly likely that rather than deleting “news ticker services * * *” from the taxing provision, it would have restored the language of the House-approved bill which specifically included such services — as it did in the case of burglar alarm services. It will be recalled in this connection that the bill as initially approved by the House included “burglar alarm services” within the category of taxable “wire and equipment services” but that the Senate amended the provision to specifically exclude “burglar or fire-alarm services.” The conferees included such services within the scope of the excise not by deleting the language of the Senate version, but rather by specifically including “burglar or fire-alarm services” within the definition of “wire and equipment services.” The fact that the conferees did not similarly include “news ticker services” would seem a clear indication of Congressional intent that the newly imposed wire and equipment service excise was not to extend thereto. Another significant indication of Congressional intent is the statement in the Conference Committee Report to the effect that the House conferees receded from that portion of section 548 of the House bill which had included “news ticker services” within the category of services subject to the “wire and equipment service” excise. Thus, the Congress specifically considered and rejected the House attempt to include “news ticker services” within the definition of a “wire and equipment service.” The conclusion, therefore, seems apparent that Congress did not intend to extend the “wire and equipment service” levy to subscription payments to news ticker services.

Urging a contrary construction, defendant cites Treasury Regulations 42 (1942 ed.), section 130.38(b) (3) (iii) of which provided that “wire and equipment services” include:

Channels furnished between a point of origin and the subscriber’s premises over which are given stock and bond market quotations and reports, racing results, baseball scores and other sporting results, news items, musical programs, weather reports, the time, etc. (Emphasis added.)

Treasury regulations represent, of course, contemporaneous construction of the revenue statutes by those charged with their administration and, consequently, will be given considerable weight by the courts. But the courts are not bound by such construction where it stretches the meaning of a statutory provision beyond what Congress intended (Hampton Roads Ind. Electronics Corp. v. United States, 147 Ct Cl. 635, 649, 178 F. Supp. 474, 477 (1959), and cases there cited), and to the extent that this regulation is construed to cover news ticker services, it is inconsistent with the intent of Congress.

Ill

These considerations aside, it would appear that the effect, among other things, of the George amendment including general news ticker services in the “public press” exemption was to provide an overall exemption from any taxation provision for subscription payments to a general news ticker service. This would seem apparent from the express words of the enactment which provided in pertinent part:

No tax shall be imposed * * * upon any payment received from any person for services or facilities utilized * * * in the dissemination of news through * * * a news ticker service furnishing a general news service similar to that of the public press * * *

Defendant says, however, that while at first glance the provision would seem to indicate exemption for all amounts paid to general news ticker services, it is evident from the entire section (supra, pp. 2-3), the grouping of the exemptions, and the partial repetition of the language that the exemption depends upon the nature of the business and the use of the facilities by the taxpayers, rather than upon the nature of the wire service itself. In defendant’s view the exemption extends only to amounts paid for a service which is utilized by the payor in the dissemination of news through one of the media designated in the statute. Thus, according to the defendant, the exemption is applicable solely to amounts paid by those subscribers of the Dow Jones News Service who are themselves newspapers, press associations, other general news ticker services or broadcasters.

This interpretation, however, not only lacks support in the legislative history, it does violence to the plain meaning of the statute. The statute does not provide that the exemption cover amounts paid for a service which is utilized by the payor in the dissemination of news through one of the media designated by the Act — a construction which would make the exemption depend on the nature of the business of, and the use of the facilities by, the person making the payment. On the contrary, the exemption depends on the nature of the service itself. For under the express words of the statute, when the facilities of Dow Jones are used in the dissemination of news to the tickers of its subscribers, then any payment received by “any person” therefor would seem exempt.

Moreover, defendant’s construction would lead to anomalous and discriminatory results. To illustrate: all subscribers in Washington, D.C., receive the same news transmitted by Dow Jones from New York to Washington over the same intercity channel. However, Merrill Lynch, as a subscriber in Washington, would be required to pay a tax on the charge made by Dow Jones for the line haul from New York to Washington but the Washington Post, as a subscriber, would not. Yet precisely the same service is furnished to both jointly. Further, if Merrill Lynch were to transmit such news to its 800,000 customers and the Washington Post republished it to no one, under the defendant’s contentions, Merrill Lynch must pay the tax but the Washington Post is exempt.

Defendant states, however, that from 1932 to the present, Treasury Department regulations have consistently construed the “public press” exemption as applying only to those amounts paid by news collectors and news disseminators for facilities used by them in collecting news or disseminating news through one of the media specified by the statute. According to the defendant, since Congress in successive enactments has not altered the language pattern, it must be presumed to have sanctioned the construction contained in the regulations.

There are several difficulties with this argument. In the first place, it is not entirely clear that the regulations applicable to the present controversy construe the exemption in the limited manner indicated by the defendant so as to include only those amounts paid by news collectors and news disseminators for taxable facilities utilized in collecting news for or disseminating news through a general news ticker service. For example, section 130.45 of Treasury Regulations 42, which were issued under the Revenue Act of 1941, provided in part as follows:

/Services utilized in the collection of news for or dissemination of news through the public press, news ticker services, or radio broadcasting. — (a) The exemption provided by section 3466(b), is applicable only to payments for services and facilities of the kind described in section 3465(a)(1) (telephone toll charges, telegraph messages, etc.) and section 3465(a)(2) (leased wires, etc.). The exemption will apply only with respect to payments for services and facilities which are utilized exclusively (a) in the collection of news for the public press or radio broadcasting or in the dissemination of news through the public press or by means of radio broadcasting, or (b) in the collection or dissemination of news by a news ticker service furnishing a general news service similar to that of the public press. For the exemption to apply, the charge for the services or facilities must be billed in writing to the person paying for the services or facilities and such person must certify in writing that the services or facilities are so utilized.
(b) The exemption applies to amounts charged for messages from any newspaper, press association, radio news broadcasting agency, or news ticker service, to any other newspaper, press association, radio news broadcasting agency, or news ticker service or to or from their bona fide correspondents, which messages deal exclusively with the collection of news items for, or the dissemination of news items through, the public press, radio broadcasting, or a news ticker service furnishing a general news service similar to that of the public press.
iji * * Hi %

Not free from doubt in the face of this language is whether the exemption was intended to apply solely to the messages specified in subsection (b) or whether that subsection was intended merely to designate some of the messages with respect to which the exemption is applicable, leaving open the question as to whether payments for messages from a general news ticker service to non-news media subscribers were similarly exempted. Indeed, it could be argued that if the former interpretation were intended, the subsection would have specifically provided that “the exemption applies only to amounts charged for messages from :J? ❖ ❖ V

On the other hand, if the applicable regulations exempt not all subscription payments to a general news ticker service, but only payments made by those subscribers who are themselves news media (e.g., a newspaper, press association, another news ticker service or broadcast agency), such regulations would be inconsistent not only with the plain meaning of the statute, but with its actual administration by the Internal Eevenne Service. For the fact is that over a continuous span of 16 years — extending from at least 1941 (wlien the statutory provision in question was first enacted) to 1957 — the Internal Bevenue Service failed to seels or assert a tax on subscription payments to the Dow Jones News Service by non-news media subscribers. This tends to support the inference that the Internal Bevenue Service considered that the statute exempted all subscription payments to the Dow Jones News Service and not merely those made by subscribers who were themselves news media. “The want of assertion of power by those who presumably would be alert to exercise it has been considered significant in determining whether such power was actually conferred.” Equitable Life Assurance Society v. United States, 149 Ct. Cl. 316, 321, 181 F. Supp, 241, 244 (1960), cert. den. 364 U.S. 829. What is more, it would appear that the Internal Bevenue Service’s failure to assert taxability during this period resulted not from lack of consideration of the problem, but rather from a conscious decision on its part, as evidenced by its rulings issued in August and October 1955 that the statutory exemption applied in respect of payments received from all subscribers to the Dow Jones News Service regardless of the use made of such service by its subscribers. See findings 38 and 39.

The fact that the Internal Bevenue Service adhered to this construction of the “public press” exemption for some 16 years casts doubt, of course, upon the construction of the applicable regulations that defendant urges — since it does not seem credible that the agency would administer the exemption in a manner contrary to its own regulations. But even if defendant’s construction of these regulations is the proper one, it does not necessarily follow that Congress should have been presumed to have sanctioned that construction by virtue of its having re-enacted the “public press” exemption without change. For it is just as logical to suppose that re-enactment of this provision without change implied legislative recognition and approval of the established usage of the Internal Eevenue Service under which all subscription payments to a general news ticker service were deemed exempt from tax. See e.g., National Lead Co. v. United States, 252 U.S. 140, 145-47 (1920).

Davis, Judge,

dissenting:

My major difference with the Trial Commissioner’s thorough opinion is over the status and effect of the two Treasury Regulations which I believe dispositive and which the court, as I understand the case, must nullify. One regulation relates to the coverage of the tax (Section 4252(f)) and the other, to the “public press” exemption (Section 4253 (b)). Both, as I appraise them, are adverse to the taxpayers’ position, and of course both must be upheld if they are reasonable interpretations of the statute. We are not free to by-pass valid Treasury Regulations. Udall v. Tallman, 380 U.S. 1, 4, 16-18 (1965); Fawcus Machine Co. v. United States, 282 U.S. 375, 378 (1931); Commissioner v. Wheeler, 324 U.S. 542, 546-47 (1945); Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501-03 (1948); Estate of Bahen v. United States, 158 Ct. Cl. 141, 145, 305 F. 2d 827, 829 (1962).

Ever, since this tax was imposed in 1941 on “wire and equipment service”, the Treasury Regulation has included within that term all “channels furnished between a point of origin and the subscriber’s premises over which are given stock and bond market quotations and reports, racing results, baseball scores, and other sporting results, netos items, musical programs, weather reports, the time, etc.” (emphasis added). Treasury Regulations on Facilities and Services Excise Tax (1954 Code), Section 42.4252-6 (b) (3); Treasury Regulations 42 (1942 ed.), Section 130.38. Especially in its context of a wide-ranging, all-inclusive regulation, this paragraph seems to me clearly to cover news tickers such as the Dow Jones Service. Can the regulation nevertheless be disregarded as void ? The general words of the statute, taken by themselves, certainly permit the Internal Revenue Service to adopt the position that news tickers are “wire and equipment services.” And unlike Commissioner Maletz and the court, I do not find that the 1941 legislative history bearing on the coverage of the tax is so plainly the other way that the regulation must be stigmatized as invalid from its issuance. The House of Eepresentatives originally included news tickers, by name, under the tax; the Senate first excluded them specifically and then deleted all references to them from the coverage section of the bill; the final measure hammered out by the conference did not mention them one way or the other in the coverage provisions. To my mind, there is not much help from the legislative background, or the reports and debates, in explaining this final solution. The letter from Mr. Hogate of Dow Jones is very unclear as to whether he was concerned with the coverage of the tax or with the “public press” exemption (and, if the latter,, with the taxability of Dow Jones itself or also with the taxability of its subscribers). Senator George was cryptic in asking to delete the original Senate provision expressly excluding news tickers from coverage; his comment (“it is intended to make certain that the general news ticker service is classed as part of the general press”) could well mean that only the exemption, not coverage, was at issue and, even then, only Dow Jones’ own exemption. The conference report is wholly colorless on this point. Complex and refined inferences, based on small differences in wording, may be drawn, not without some persuasive appeal, to support the taxpayers’ position, but for me the upshot of the 1941 legislative consideration of news tickers is that we cannot say with the requisite certainty that Congress affirmatively intended to exclude these services from the extension of the tax to “wire and equipment services”. That being so, I cannot brand the Treasury’s contemporaneous regulation, now twenty years old, as inconsistent with the Congi’essional aim. Following that regulation, I would hold that Sections 4251 and 4252(f), imposing the tax, embrace the Dow Jones News Service.

The other regulation, dealing with the exemption for the “public press” (Section 4253(b)), is Section 42.4253-2 of the Treasury Regulations on Facilities and Services Excise Tax (1954 Code) (which the court’s opinion quotes in the earlier version, Section 130.45 of Treasury Regulations 42). This part of the regulations declares that the statutory exemption extends to those using a wire and equipment service in the course of collecting or disseminating news for or through the “public press.” The Washington Post or the Associated Press, for instance, would not have to pay the tax on their subscriptions to a news ticker. Admittedly, the stockbroker-plaintiffs do not employ the Dow Jones Service in that fashion.

The court and the Commissioner first say that the present regulation and its 1942 predecessor may not confine the exemption to the defined class since they do not, unlike the earlier editions, use the word “only” with respect to that class. This puts too much weight on a slight literary alteration made when the regulation as a whole was recast to cover the 1941 addition of wire and equipment services; the word “only” was placed in another portion (paragraph (a)) of the revised regulation and the definition of the exempted class was put separately in paragraph (b). It is hard to read the regulation as differing, on this point, from the pre-1941 promulgations which indisputably exempted only persons using communications services for the collection or dissemination of news for or through the press. We cannot escape, as I see it, the question of the validity of the regulation.

On that issue, I start with the tortuous and ambiguous wording of Section 4253(b), exempting “News Services.” It is in just such cases that interpretative regulations must be accorded their fullest scope. Cf. National Lead Co. v. United States, 252 U.S. 140, 145 (1920); White v. Winchester Country Club, 315 U.S. 32, 35-36, 41 (1942); American Sugar Refining Co. v. United States, 102 Ct. Cl. 180, 186, 56 F. Supp. 988, 991 (1944). From 1918, when the first communications tax was imposed (Revenue Act of 1918,40 Stat. 1057, 1102, Section 500(g)), the Treasury, in its general pronoun cements, has confined tbe “public press” exception to the collection and dissemination of news for or through the press. At first, the statement of that position seems to have been left wholly to the concise but clear words of the earlier legislation itself. In 1932, Article 20 of Treasury Regulations 42, issued under the Revenue Act of 1932, spelled out the exemption in detail. An amendment in 1938 (T.D. 4825, 1938-2 Cum. Bull. 402), after the 1938 Revenue Act expanded the exemption to radio, carried the same conception forward and applied it to broadcasting. After the 1941 Act added “wire and equipment services”, Treasury Regulations 42 (as already pointed out) took the same position, as did the comparable regulation under the 1954 Code. This is a period of over forty-five years in which the Treasury’s general thinking has been opposed to applying the exemption to non-media taxpayers such as those before us.

This long history outweighs, in my scales, the two-year period (1955-1957) during which the Internal Revenue Service said that subscribers to the Dow Jones Service were exempt. That summary ruling did not explain its conclusion or cite the regulation, and, if I must choose between the long-standing public interpretation and this short-lived private ruling as the true reflection of the Treasury’s general position, I am compelled to choose the former. Nor do I think that the Treasury’s position can be gathered from its apparent failure to attempt, for some years, to collect the tax payable by non-press subscribers. In the field of taxation it is precarious to draw inferences from non-collection when published regulations provide for payment of the tax. There are too many practical and pragmatic reasons why the taxpayers may have been left unharried.

Lastly, I consider the 1941 legislative history, once again, too inconclusive for us to say that it conflicts with the regulation. That history demonstrates that Congress desired Dow Jones itself to be free of the tax, but it is wholly equivocal on the exemption of non-press subscribers to the News Service; if anything, the balance can be read to favor the defendant. The regulation stands unimpaired and should be applied to plaintiffs.

They urge that, if the Code requires them to pay the tax, it is unconstitutional as an infringement of First Amendment rights. But these stockbrokers, who employ the Dow Jones News Service in their business, cannot complain that any rights of theirs are violated by the requirement that they pay an 8% tax on their use of a wire service, any more than they can refuse to pay the telephone or telegraph tax or a sales impost. Nor are the rights of Dow Jones broken by this minor and non-discriminatory excise tax, payable by business subscribers, on the transmission of news (as well as other information) by wire. Cf. Grosjean v. American Press Co., 297 U.S. 233, 250 (1936); Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943); Follett v. McCormick, 321 U.S. 573, 577-78 (1944); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-94 (1946); Mabee v. White Plains Publishing Co., 327 U.S. 178, 184 (1946).

Laramore, Judge, concurs in the foregoing dissenting opinion.

Findings op Fact

L Plaintiffs are licensed brokers in securities and members of the New York Stock Exchange. They seek recovery of excise taxes which they paid during the period November 1, 1957 through May 31, 1959, on subscription charges for the Dow Jones News Service.

2. The case arises under sections 4251, 4252 and 4253 of the Internal Revenue Code of 1954.

3. The Dow Jones News Service is owned and operated by Dow Jones & Company, Inc. which publishes: the Wall Street Journal, a national daily newspaper having a present circulation of 800,000; the National Observer, a weekly newspaper; and Barron’s National Business and Financial Weekly, a weekly magazine specializing in economic news and articles.

4. (a) Dow Jones & Company was founded in 1882 by two reporters, Charles H. Dow and Edward D. Jones, to provide a business and financial news service for the New York business community. In the early years, the information for the service was gathered largely in the Wall Street area and news reports based on this information were handwritten on slips of paper. These slips were then distributed by messenger boys at intervals during the business day to the subscribers, most of whom were banks, business firms and brokerage houses in the New York City area. In 1889, Dow Jones & Company established a newspaper publishing venture, the Wall Street Journal, which at first consisted mainly of the day’s grist of “slip” news. About 1900 a telegraphic service was added to provide the same sort of news to subscribers, which became known as the Dow Jones News Service. In 1928 it was expanded to a nationwide service. During the period from 1930 to 1937, the telegraphic method of transmission was replaced by the faster teletypewriter method which is presently in use.

(b) Prior to 1953 Dow Jones & Company also operated the Illinois Telegraphic News Bureau, a separate ticker service which distributed commodity market quotations and news about commodities to subscribers located in the mid-West. It appears that this service was discontinued in 1953.

5. From 1882 through the early 1930’s, the content of the Dow Jones news slips and the Dow Jones News Service consisted mostly of news of corporate activities. An evolutionary change took place about 1933 with the advent of the Boosevelt Administration when governmental activities assumed a far greater influence in the lives of the people than was the case previously. At that time the content of the Dow Jones News Service was substantially expanded to include governmental, labor and international news.

6. The Dow Jones News Service is a service by which teletypewriter machines located on the premises of the subscribers print news on a continuous roll of paper 6 inches wide. The news is transmitted by a teletype operator from the Dow Jones central point located at 44 Broad Street, New York City, over private-line channels leased from the American Telephone & Telegraph Co. (AT&T). These channels interconnect all teletypewriters of all U.S. subscribers and all such teletypewriters wherever located are activated by one sending operation, so that all subscribers receive the news simultaneously. About one-half of the teletypewriters used in the service are owned by Dow Jones & Company and the others are leased from AT&T. As an example, all subscribers in Washington, D.C., are served by one intercity channel from New York to Washington, at which point the one intercity channel is then connected to a branch or local channel running to each individual subscriber.

7. Dow Jones & Company has a staff of approximately 125 reporters who serve both the Wall Street Journal and the Dow Jones News Service. It maintains 23 news bureaus, 15 of which are in the United States and 8 abroad. News from these bureaus is transmitted to the Dow J ones central office at 44 Broad Street in New York City over teletype wires leased from AT&T. Dow Jones & Company also receives news at the central office from part-time correspondents in 60 cities; from the Associated Press (AP); the United Press International (UPI); Reuters (a British news agency); and from various stock and commodity quotation ticker services operated by the exchanges which report individual transactions. At the Dow Jones central office, 14 employees (7 of whom are editorial) work exclusively on the Dow Jones News Service. These employees edit and headline the incoming news and then send it out over the teletypewriter circuits to the subscribers. Press association dispatches that are carried by the Dow Jones News Service are ordinarily edited for length but not for content.

S. The Dow Jones News Service must print Dow Jones Averages hourly. In addition, the New York Stock Exchange has a rule requiring corporations having stock listed on the exchange to release immediately to specified publications any action that is taken declaring or passing a dividend on a listed stock. More particularly the rule requires that the company release such information (1) to one or more newspapers of general circulation in New York City which regularly publish financial news, or to AP or UPI, and (2) to the Dow Jones News Service. Though not contractually required to do so, Dow J ones & Company considers it has an obligation to print this information on its news service and it always does. Apart from the foregoing, the copy dispatcher and editorial staff have sole responsibility for determining what items are carried on the news ticker and this determination is based on their judgment as to which of the items are of interest to the subscribers. They also have sole responsibility for determining the order of priority for transmission of items, the primary criteria being speed and the importance of the items.

9. As of June 30, 1962, the Dow Jones News Service had 1,010 subscribers located in 644 cities in 48 of the 50 States. The subscribers included 6 advertising and public relations agencies, 11 banks, 61 clubs, 220 dealers (i.e., brokers who were not members of the New York Stock Exchange), 1 department store, 10 food companies, 8 hotels, 6 individuals, 10 insurance companies, 29 manufacturers, 13 metal companies, 475 members of the New York Stock Exchange, 14 oil companies, 5 public utilities, 46 publishing firms, 3 real estate firms, 1 restaurant, 22 securities and commodities exchanges, 4 textile companies, 4 transportation companies, and 1 university. Included among these subscribers were 5 press associations and 32 newspapers.

The record does not show the number and identity of subscribers to the Dow Jones News Service during the period in suit except that the number in such period was less than 1,010. However, the distribution of subscribers during the period in suit was not substantially different than on June 30, 1962. Also, the number of press association and newspaper subscribers during the period in suit was approximately the same as it was on June 30, 1962.

10. The normal hours of operation of the Dow Jones News Service are from 9:00 A.M. to 5:00 P.M. (New York time), Monday through Friday. These hours correspond to the ordinary hours of occupancy of a business office. From time to time the Dow Jones News Service operates beyond the normal closing time, particularly when the New York Stock Exchange ticker is late in reporting on transactions on the exchange, thus delaying completion of the compilation and transmission of the final Dow Jones Averages. During periods when the Dow Jones News Service operates beyond its normal closing time, it transmits news stories. On occasion the service will also stay open for some minutes beyond the normal closing time to complete the coverage of a major news event of significant interest. Thus, the service was kept open when President Eisenhower had a heart attack in order to carry bulletins on his condition; it has also been kept open to complete the coverage of the World Series.

11. The Dow Jones News Service typically begins operations with a brief summary of reports on performance of the previous day’s securities, commodities and financial markets. It then follows with a summary of important general news events which occurred since close of the news service on the previous day. Thus, the morning summary for August 7, 1961, contained a story that the Administration’s drive for higher postal rates failed to achieve its first objective with the Chairman of the Senate Post Office Committee refusing to sponsor the Administration’s revised bill and remaining adamant against calling committee hearings. The morning summary for June 13,1962, contained a story that the president of E. L. Bruce had resigned after admitting fund withdrawals. Following these items were reports on basic financial and business developments, such as new stock and bond offerings, corporate earning reports, dividend announcements, corporate financing plans, plant expansion and relocation news, corporate sales trends and pricing policies, merger and acquisition announcements, periodic representative stock and bond quotations on a sampling basis to show the trend of the market, and articles relating to new products and technological developments. Interspersed among these reports were a wide variety of general news articles similar to those published in daily newspapers. Such articles were not carried as “filler.”

12. (a) The Dow Jones News Service does not carry items that deal with society, crime, religion, entertainment or the arts unless the event is of general national interest or has significant business implications in which case it is carried. It does not carry sports stories unless the event is one of broad interest, such as the World Series — a play-by-play account of which has been transmitted each year for a number of years. It does not carry local news, editorials, columnists, or advertisements.

(b) The Dow Jones News Service does not provide a complete market quotation service, nor does it carry complete stock and bond quotations. Rather, it carries representative stock and bond quotations approximately hourly during the day to show the trend of the market.

(c) A stock exchange ticker service carries complete information about all stock sales as they occur on the floor of the exchange by reporting the latest sales of stock on the exchange, the number of shares sold and the price at which they were sold. Thus, the stock ticker service provides a continuous picture of the market as it changes from moment to moment. Occasionally, a stock exchange ticker service also carries information concerning the expulsion of a member, dividends on stock, and notices of the exchange itself. It does not, however, go beyond this and carry other types of news items such as those dealing with international events, weather, or sports.

(d) A stock exchange ticker reports corporate names in symbol form. The Dow Jones News Service prints corporate names in plain language.

13. For the most part the articles carried by the Dow Jones News Service are written in non-technical terms so that they can be understood by the public at large. However, some items, particularly London gold and silver market quotations, are of a highly technical nature that are of interest primarily to a specialized group of investors and these quotations are reported in abbreviations that would not be generally miderstood by the general public. The business and financial pages of daily newspapers, such as the New York Times, also carry these same market quotations similarly abbreviated.

14. The parties have stipulated that the daily transcripts of the Dow Jones New Service for September 22, 1959, August Y, 1961, December 21,1961, March 30,1962 and June 13, 1962 constitute an accurate and descriptive sampling of the service during November 1, 195Y through May 31, 1959 (the period in suit). This stipulation was subject to the parties’ right to introduce additional testimony as to the overall nature and contents of the Dow Jones News Service during the period in suit.

15. At the trial of the case there was introduced by defendant an exhibit dividing into categories the contents of the Dow Jones News Service based on the 5 representative transcripts. This exhibit was prepared by Jeffrey Taylor, an employee of the Internal Revenue Service whose background was in accountancy and engineering. Mr. Taylor had no experience as an editor, reporter, writer, or in analyzing news content. Nevertheless, comparison of the exhibit and the supporting work sheets with the contents of the transcripts indicates that the exhibit is not an unreasonable categorization of the contents of these transcripts.

16. The Taylor exhibit divides the contents of the Dow Jones News Service into the following four categories: (1) market quotations; (2) market summaries and comments; (3) statements by corporations; and (4) miscellaneous and general news. Though the exhibit does not so indicate, the word “news” can be read into each of the first three categories in the same way the word “news” is used in the fourth category. The Taylor exhibit further divides these 4 categories into the following sub-categories:

A. MARKET QUOTATIONS — Current bid and asked prices quoted by brokers for the sale or purchase of stock, bonds, commodities, foreign currency or other property traded on any of the established markets or on the over-the-counter market.
1. STOCK — Quotations under A in which the property is shares of the legal capital of corporations listed on any of the established domestic markets or traded over-the-counter.
2. BOND — Quotations under A in which the property is the certificates of indebtedness of commercial corporations, obligations of the United States Government or any political subdivision thereof, or obligations of the world bank, listed on any of the established domestic markets or traded over-the-counter.
8. COMMODITY — Quotations under A in which the property is economic goods, either for immediate or future delivery traded or on any of the domestic markets.
4. FOREIGN MARKET — Quotations under A in which the property is stocks, bonds, or commodities traded on markets other than those of the United States.
5. FOREIGN EXCHANGE — Quotations under A which, indicate the price at which the currency of one country can be purchased with the currency of another country.
6. OTHER — Quotations under A which do not precisely fit within subclasses 1 through 5.
B. MARKET SUMMARIES AND COMMENTS— Statements which indicate the volume of trading and averages of stocks, bonds, or commodities. This class also includes commentaries and analyses of market trends, announcements of the organized exchanges, and reports of new bond issues of the United States Government or political subdivisions.
7. STOCK VOLUME AND AVERAGES — Summaries of general market activity under B in which the volume of shares of corporate stock traded on the domestic markets is reported in terms of the number of shares or number of issues and/or the price is reported with reference to a recognized price index.
8. BOND VOLUME AND AVERAGES — Summaries of general market activity under B in which the volume of bond's traded on the domestic market is reported in terms of the total face value of the bonds or the number of issues traded and/or the price is reported with reference to a recognized price index.
9. COMMODITY VOLUME AND AVERAGES— Summaries of general market activity under B in which the volume of commodities traded on the domestic markets is reported in terms of the units of goods traded and/or the price is reported with reference to a recognized price index.
10. STOCK COMMENTS — Commentaries of current market activity under B in which the market trends of corporate stock traded on domestic markets is analyzed or the activity is reported or measured by miscellaneous standards such as the status of the ticker tape, odd lot transactions, or number of issues advancing and number of issues declining.
11. BOND COMMENTS — Commentaries of current market activities under B in which the market trends of bonds traded on domestic markets is analyzed or the activity is summarized.
12. COMMODITY _ COMMENTS — Commentaries of current market activity under B in which the market trends of commodities traded on domestic markets is analyzed or the activity is summarized.
13. FOREIGN MARKET SUMMARIES AND REPORTS — Summaries of general market activity under B in which the volume of price level of stocks, bonds, or commodities traded on markets other than those of the United States is reported or the market activity is analyzed.
14. GOVERNMENT SECURITIES SUMMARIES AND REPORTS' — Summaries of general market activity under B dealing with the volume or trends in trading of obligations of the United States or political subdivisions. Tins subclass also includes reports on new issues of the federal, state or local governments and the results of bidding on these issues.
15. OTHER — Summaries and commentaries of market conditions which do not precisely fit within the requirements of subclasses 7 through 14. This subclass also includes announcements of the organized exchanges.
C. CORPORATE STATEMENTS — Statements made by a corporation in announcement of its past commercial performance, current policy or activities, or its future plans, including joint statements by two or more corporations in announcement of plans of mutual interest
16. EARNINGS REPORTS — Corporate statements under C which announce the earnings or loss from operations for past accounting periods whether in total or on a per share basis.
17. DIVIDEND ANNOUNCEMENTS — Corporate statements under C which announce the action of the board of directors of a corporation to distribute cash, other assets, or shares of stock to a class of stockholders, to grant a class of stockholders the right to purchase additional stock, or the decision by the board of directors to pass a dividend.
18. RECAPITALIZATION AND NEW OFFERING ANNOUNCEMENTS — Corporate statements under C which announce any major change in the character and amount of the outstanding capital stock or paid-in surplus and announcements regarding the issuance of new corporate securities.
19. EXPANSION ANNOUNCEMENTS — Corporate statements- under C which announce plans for the expansion or diversification of business services or f ctClllfci.6S
20. REPORTS OF GENERAL CORPORATE STATUS — Corporate statements under C which indicate the financial or commercial status of the business by an announcement of current sales trends, pricing policy, changes in sales prices, amount of unfilled orders or raw material reserves, or a prediction of earnings or loss for the current or future accounting periods.
21. MEEGEE OE ACQUISITION ANNOUNCEMENTS — Corporate statements under C which announce mergers, consolidations, or the plans to enter such arrangements.
22. MIS'CELLANEOUS COEPOEATE STATEMENTS — Corporate statements under C which do not precisely meet the requirements of subclasses 16 through 21, including announcements of changes in personnel.
D. MISCELLANEOUS AND GENEEAL NEWS— All reports other than Market Quotations, Market Summaries and Comments, and Corporation Statements, as defined above.
23. GOVEENMENT ACTION AND ANNOUNCEMENTS — Announcements or reports under D made by agencies of the federal, state, or local governments including the Interstate Commerce Commission, Civil Aeronautics Board, Public Service Commission, Securities Exchange Commission, etc., and the decisions of the courts.
24. LEGISLATIVE ACTION AND JUDICIAL DECISIONS — Announcements under D reporting the actions of Congress or state legislatures, reports on the status of legislation, actions by Congressional Committees, and the decision of the courts.
25. LABOE — Eeports under D concerning the activities of organized labor, disagreements between labor and management, the status of negotiations, and actions of the Department of Labor in connection with labor disputes.
26. WEATHEE — Eeports under D concerning current weather conditions and forecasts.
21. GENEEAL NATIONAL AND INTEENA-TIONAL NEWS — Eeports under D which do not meet the requirements of subclasses 23 through 26 but which pertain to significant events of political, social, educational, religious, entertainment, sport or cultural activity.
28. OTHEE — News reports under D which do not meet the requirements of subclasses 23 through 27.

17. Utilizing the aforementioned categorizations, Mr. Taylor prepared the following tabulation showing (1) the number of items, (2) the number of lines, (3) the percentage of items, and (4) the percentage of lines, which were devoted by the Dow Jones News Service during the representative 5-day period to each of the categories and subcategories:

18. (a) Many daily newspapers, such as the New York Times, may be broken down in essentially the same way and into the same categories as the Taylor exhibit. The defendant did not have prepared the same sort of category breakdown and tabulation for newspapers and Mr. Taylor did not know what the corresponding newspaper percentages were.

(b)There are no categories of items in the Dow Jones News Service that are not published in daily newspapers such as the New York Times.

19. (a) Neither the nomenclature nor the definitions used in the Taylor exhibit are in any respect dispositive as to whether or not any particular item is of general news interest.

(b) It is found that the great majority of the items listed in the first three categories of the Taylor exhibit were not of such broad interest as to be considered general news, but rather were of more specialized interest and were of the kind that appear in the business and financial sections of daily newspapers. Nevertheless a number of items listed in the first three categories were general news items in the ordinary sense of the term.

(c) 231 items were listed in the fourth category of the Taylor exhibit captioned “Miscellaneous and General News.” Of these, 128 originated with Dow Jones reporters while 103 originated with AP and UPI.

(d) The vast portion of the items listed in the fourth category of the Taylor exhibit were of general interest and constituted general news. By way of illustration, the fourth category included the following news stories published in the Dow Jones News Service on December 21, 1961, March 20, 1962 and June 13, 1962 (identified by item number), which were also published in substance in the daily newspapers listed below on the same or next day:

20. (a) Over 92 percent of the news items appearing in the Dow Jones News Service of December 21,1961, appeared in substance in at least three daily newspapers (the New York Times, the New York Herald Tribune, and the Wall Street Journal) of the same day or following day; over 87 percent of the items in the March 30, 1962, Dow Jones News Service appeared in such papers; and over 94 percent of the items in the June 13, 1962, Dow Jones News Service appeared in such papers. In the main, these items appeared in the newspapers’ business and financial section, although some items, including many of those set forth in the previous finding, were printed on other pages of these newspaper's.

(b) On many occasions articles of national and international consequence which appear on the front pages of the New York Times and the New York Herald Tribune do not appear in the Dow Jones News Service. This disparity is due to several Service editors, as a matter of editorial judgment, carry on the ticker those items in which they believe their subscribers will be interested. Editorial judgment is in turn influenced by the factor of timing. In this connection, Dow Jones News Service operates generally between the hours of 9:00 A.M. and 5:00 P.M. and concentrates on news occurring during those hours, whereas a newspaper covers a far broader span. An additional reason is that Dow Jones News Service has greater space limitations than newspapers. It has space for about 30,000 words a day, whereas it receives over 200,000 words a day. There is the further consideration that certain items of national and international news appearing in daily newspapers are “exclusive” with that particular paper.

(c) Because of the space limitations of the Dow Jones News Service, neither business nor general news items are carried as “fillers.”

21. (a) The Dow Jones News Service does not provide an all-inclusive news service and a subscriber would not get the same range of national and local news as he would by reading the New York Times. Rather, the Dow Jones News Service is designed to provide immediate information about current business, financial and major national and international events to persons who are in business and those who are investors or potential investors.

(b) A person using the Dow Jones News Service as an exclusive news source would be reasonably well informed about the major national and international news developments.

22. From an examination of the 5 representative daily transcripts, it is found that the Dow Jones News Service emphasizes business and financial news. It is also found that the service contains a substantial amount of items and lineage devoted to a wide variety of major national and international events that occur during the hours of service each day. These items are similar to those published in daily newspapers.

23. Approximately 70 percent of the subscribers to the Dow Jones News Service are either brokerage firms or securities dealers. These two groups of subscribers comprise an even greater source of total revenue for the service in that many of the brokers and dealers use numerous teleprinting machines, at an additional charge, in each of their branch offices.

24. (a) Plaintiffs, who are brokers, subscribe to the Dow Jones News Service to obtain for themselves and to pass on to their customers and prospective customers immediate information about current financial and business developments and about major national and international events, which information might affect the market investments and financial interests of plaintiffs’ customers or prospective customers. Plaintiffs also uniformly subscribe to various ticker services operated by the securities and commodity exchanges which furnish a complete market quotation service. They rely on those services, rather than the Dow Jones News Service, for actual market quotations.

(b) Plaintiffs are not engaged in the business of disseminating news.

25. Plaintiffs typically keep their Dow Jones News Service ticker in a room where the tape may be read by customers and the public; Only a limited number of persons can actually view the tape. Some customers and others who visit plaintiffs’ offices read the news on the ticker so that they can make their own analysis of events that may affect them as investors or prospective investors. Most often plaintiffs’ customers receive the information appearing on the Dow Jones News Service by telephone from plaintiffs’ employees.

26. Insurance companies and manufacturing companies subscribe to the Dow Jones News Service so that company officers may be informed immediately of news developments that may affect their business. Newspapers subscribe in order to disseminate information. Banks subscribe in order, among other things, to be able to advise customers as to financial and investment matters. Hotels and restaurants subscribe as a method for attracting patrons to their establishments by providing them with a means of being immediately informed about current events.

27. Dow Jones News Service employs salesmen to solicit prospective subscribers. Generally leads are obtained through advertising and promotion campaigns and recommendations from customers. Dow Jones News Service considers its market to consist of those who can afford to pay for, and profit by, instantaneous, accurate news. It advertises in magazines and newspapers, with the advertising content varying depending on the business of the group of potential subscribers sought to be influenced. The text of a sample advertisement directed at brokers states:

Today’s market with its high volume and day-in day-out turbulence has many a broker literally “bending over backwards” to supply his clients with fresh, fast and accurate business and financial news. Investors recognize that the broker who offers the Dow Jones Instant News Service is geared to supply the news first * * * with adequate time that permits the alert investor to take the action that turns today’s news into today’s profits. Continuing reports from leading securities and commodities markets tell the investor “how” his securities are doing; and equally important, up-to-the-minute corporate, labor and governmental news tell him “why.” The Dow Jones Instant News Service not only speaks well to the broker, it speaks well of the broker.

The text of a sample advertisement directed at advertising agencies states:

Are you keeping pace with the trend for wider client service ? Dow-Jones news service in your offices can put you in a position to be more useful, more active, for your present accounts. It can make your agency more attractive to prospective accounts.
For only a modest investment, each key executive in your agency can keep on top of the business news. Presidents, comptrollers, account executives, copy chiefs, marketing and research directors can do a better job because they’ll be better informed. Dow-Jones netos service will bring them the business and financial news almost as it happens. Their executive decisions and creative ideas will be geared to the up-to-the-minute trends in the business world.
Having Dow-Jones news service is a visible sign to existing and prospective clients that your agency thinks from the businessman’s point of view. Don’t neglect this opportunity to be better informed and more useful to your organization and ypur clients. An agency with Dow-Jones news service is a bigger, better agency. Write for further information today!

A sample advertisement directed at bankers states:

THIS VALUABLE ASSISTANT TO YOUR BANK’S EXECUTIVE STAFF *.* *
* * * will provide your bank with the very latest business and financial information. This alert assistant brings you complete, authoritative information gathered by the Dow Jones business news organization, l’ushed to you instantaneously on the broad tape news ticker. Here is news you can’t anticipate * * * and news that most nonsubscribers will not be privy to until tomorrow, and sometimes not until much later, if ever. Use it to gain a competitive edge for your—
Loom, Dept., with daily advance reports on corporate financing planSj plant expansions and relocation news, government decisions, etc.;
Trusts and Estates Dept., with reports on securities and commodities, new stock and bond offerings, company earnings statements, dividend announcements, and many other important items;
New Business Dept., with exclusive information on new products, technological developments, sales leads, mergers and acquisitions, new sources of supply— everything that enables your staff to inform prospective customers about important profit opportunities and vital protective steps.
Important Financial Note: This versatile, reliable assistant gives you service of executive caliber, yet adds less than the cost of an office boy to your overhead. Get complete information today.

Another sample advertisement directed at bankers states:

SERVING ALERT BANKERS EVERYWHERE
Throughout the length of its long lines, the Dow Jones business news organization gathers vital information of value to the banks and its important customers * * * and transmits that news directly to alert subscribers who seek the “competitive edge.” News of industry and commerce, finance, legislative acts and trends, labor-management developments * * * news that suggests profit opportunities and news that reveals the need for protective action! All of this comes to you first when you have Dow Jones Instant News Service on your premises. With Dow Jones you have much more to offer customers and prospects. Dow Jones helps your bank stand out, for nothing is more attention-commanding than important news. The cost is less than you might suppose for such a unique service. Get complete information about Dow Jones Instant News Service for banks, today! One model of the Dow Jones Instant News ticker is pictured above.

The text of a sample advertisement directed at businessmen states:

HEEE IS HOW YOU, TOO, CAN OFTEN PROTECT YOUR BUSINESS FROM STORMS THAT HAVE NOT YET OCCURRED Wherever business-making or business-losing developments occur, you know them immediately with Dow Jones Instant News Service in your office. Fair weather or foul, good news or bad * * * you’r§ prepared.
While others (including your competition) are acting on yesterday’s information, you will be planning and profiting on the very latest news. You will act more profitably because you will know more. You will act more profitably because you will know first. Every business day, Dow Jones brings you dozens of profit leads you can apply to your personal and business opportunities.
Profitable ? In every line of business, America’s most successful companies subscribe to Dow Jones Instant News Service. You’ll be surprised at its low cost. Write, wire or phone your nearest Dow Jones office for details.

DOW JONES IS FIRST WITH NEWS YOU CAN’T ANTICIPATE * * * and in addition, is first with all these basic reports every day:

® securities and commodities
• new stock and bond offerings
© labor developments
• government decisions
• company earnings statements
® dividend announcements
® corporate financing plans
© plant expansions and relocation news
© new products
© technological developments
® sales leads
• mergers & acquisitions
® new sources

* * * and many other developments of prime importance all brought to your office through instantaneous electric printer on broad tape ticker (one type of which is shown here).

The text of another sample advertisement directed at businessmen reads:

The highly competitive nature of modern business demands the use of modern tools. High on the list of these modern business tools is fast communication. The opportunity to make a profit, or restrict a loss, may be gone in a matter of hours * * * sometimes minutes.
That is why more and more companies are providing their key people with the key that opens the door to fast, factual information * * * THE DOW-JONES NEWS SERVICE. Wired right into the office of these companies, the Dow-Jones continuous news printer facilitates the work of their Administrative Officers, Treasurer’s and Comptroller’s offices, Sales Department, as well as Purchasing, Traffic and other departments.
News of Government, Industry, Labor, Finance and Commodities, gathered by Dow Jones, is flashed instantly * * * almost as soon as it happens. Also electrically printed on the easy-to-read Dow-Jones broad-page are highlights from the wires of Associated Press, United Press, Reuters, and International News Service.
(In this advertisement there then follows a list of “Borne of the Progressive Companies Now Using Dow-Jones News Service.”)

28. (a) Under a standard-form subscription agreement with Dow J ones & Company, subscribers promise “not to redistribute news from the Dow Jones News Service, on the same day it is received, by any means whatever to any other firm anywhere unless specifically licensed by Dow Jones & Company to do so.”

(b) Dow Jones & Company makes an exception to this restriction by allowing its press association and newspaper subscribers freely to redistribute and republish any items appearing in the Dow J ones News Service.

(c) Dow Jones & Company has followed a practice of not permitting radio and television stations to subscribe to its news service since it has considered them competitive with the news service from a time standpoint in view of their ability to disseminate news immediately. At the present time Dow J ones is considering reversing this practice, especially since radio and television stations are able, by subscribing to AP and UPI, to have access to various Dow Jones News Service items which, are reprinted in the press associations’ news tickers.

29. Dow Jones & Company considers that in supplying news to newspapers its news service supplements rather than competes with the press association news services. With respect to supplying news to non-newspaper subscribers, Dow Jones does not consider itself in competition with AP and UPI. For it considers that it supplies this class of subscribers with news directly, whereas AP and UPI are engaged in the business of wholesaling news to newspapers and radio and television stations.

30. While the Dow Jones News Service carries many of the same items as the AP and UPI news services, the overall content of the Dow Jones News Service is somewhat different than the latter two. Thus, the Dow Jones News Service carries more news of events which affect commerce and industry, such as corporate earnings reports, changes in corporate officers and new corporate issues, although AP and UPI do carry such items on occasion when they are deemed to be of sufficient general interest. On the other hand, the UPI, for example, since its subscribers are primarily newspapers, will generally go into greater detail in the stories it carries than the Dow Jones News Service; it will also carry stories of local events and crime, which stories are not generally carried by the Dow Jones News Service.

31. Few broker-subscribers of the Dow Jones News Service are interested in also subscribing to the press association news services since they consider that such services, unlike the Dow Jones News Service, do not provide nearly enough financial and business news.

32. (a) Many daily newspapers publish financial news and information. In addition to those items which may be printed throughout a newspaper and which have either direct or indirect commercial significance, many newspapers set aside a section of the paper devoted exclusively to financial and business news. Normally, the financial section of a newspaper contains statistical tables of listed securities and commodities which set forth the volume of sales, the openings, closings, highs and lows, of the day’s transaction. A business and financial section may also contain in statistical or narrative form, items which pertain to the activities or performance of securities, commodities, corporations, and industries, as well as summaries, commentaries and reports on overall market or business conditions.

(b) The ordinary newspaper could not be published in its accepted form if it relied exclusively upon the information appearing in the Dow Jones News Service. There is no indication in the record that the ordinary newspaper could be published in its accepted form if it relied exclusively upon the information appearing in any other single news ticker service such as the UPI.

33. By letter dated July 16,1932, the Commissioner of Internal Bevenue wrote attorneys for Dow Jones & Company as follows:

Deference is made to your letter dated July 1, 1932, and to the letters dated July 11 and 12, 1932, with accompanying data, relative to the taxable status of the business conducted by Dow, Jones & Company, under Section Y01 of the Bevenue Act of 1932.
By Section Y01 there is imposed a tax on telegraph dispatches and messages, transmitted on and after June 21, 1932,. of 5 per centum of the amount charged therefor. This office is of the opinion that the collecting and publishing of business and financial news, in the manner employed & [sic] Dow, Jones & Company, involves the transmission of telegraph dispatches and messages within the meaning of the Act; and that to that extent Dow, Jones & Company is a telephone or telegraph company within the meaning of Section Y01(a) (2) of the Act, with respect to leased wires. Pursuant to conferences held with the Bureau on July Y, 1932, and July 14,1932, whereat Mr. Bichard S. Emmet and Mr. Kenneth C. Hogate appeared in behalf of the taxpayer, it was agreed that the basis, upon which Dow, Jones & Company will collect from its customers the tax imposed' by Section Y01(a) (1) (B), shall be as follows:
(1) For the broad tape printer service, whether in or out of New York City, at a base charge of $33. per printer.
(2) For the Pacific Northwest Chain, at a base charge of $150. per printer.
(3) For the Chicago Area Chain, at a base charge in the exact amount as billed to the customer.
(4) For the Upper New York Jersey and New England Chain, at a base charge of $95. per printer.
The foregoing transmission charges on which the tax will be computed shall remain in force until further notice from the Commissioner.
With respect to the amounts paid by Dow, Jones & Company to the telephone or telegraph company for leased wires and teletypewriter machines, it is held that Dow, Jones & Company is a telephone or telegraph company within the meaning of Section 701(a) (2)_ of the Revenue Act of 1932, and, therefore, is not subject to the tax imposed on such amounts paid to the telephone or telegraph company.

34. On December 2, 1940, the Deputy Commissioner of Internal Revenue sent the following letter to Dow Jones & Company:

Reference is made to your letter of November 8, 1940, relative to the question of the liability of your organization for collection of tax on telephone, telegraphy radio, or cable messages or facilities under the provisions of section 8465 of the Internal Revenue Code (Section 701 of the Revenue Act of 1932).
The question of whether the charges made by you for news services furnished to your subscribers by means of broad tape printers and teletypewriter equipment are subject to tax, either as leased wire services or charges for transmission services, has recently been taken up for reconsideration by the Bureau.
It is held that Dow, Jones and Company, Inc. is not a telephone or telegraph company within the meaning of subsection (b), section 3465 of the Internal Revenue Code, and that the amounts paid to your company for ticker services do not represent amounts paid to a telephone or telegraph company for leased wire services within the meaning of subsection (b) of section 3465.
It is also held that the monthly charges made to your subscribers for such news services are not charges for the transmission of messages within the meaning of section 3465(a) of the Internal Revenue Code. Therefore, your company is not liable for collection from your subscribers of the tax imposed by section 3465 (a) or (b) of the Code. This ruling supersedes the ruling furnished you on July 16,1932.
It is held that the amounts which you paid to the telephone and telegraph companies for the lease of the wires or any other equipment in connection therewith are properly subject to tax under subsection (b) of section 3465 of the Internal Revenue Code. If any of the wires leased by your company are used solely in furnishing news to the public press or gathering news for the public press, the amounts paid for the rental of such wires are exempt from tax.
Since the telephone and telegraph companies will be liable in the future for collection from you of tax on leased wire services, it is requested that you furnish to this office at your earliest convenience a list of the companies from whom the wires are leased by you.
The additional evidence required in connection with your claim for refund of tax paid on services furnished to your subscribers where such services are in a local area will be the subject of a separate communication.

35. During the period December 1940 through November 1, 1957, plaintiffs paid no taxes on the Dow Jones News Service; the Dow Jones & Company written bills to plaintiffs during this period contained no amount for taxes; and plaintiffs did not execute any exemption certificates in order to avoid such tax payments.

36. On August 24, 1954, R. J. Bopp, Chief, Excise Tax Branch of the Tax Rulings Division, Internal Revenue Service, issued a letter ruling to Dow J ones & Company reading, in part, as follows:

It is your contention that you are exempt from the collection of the tax from your subscribers in connection with charges made for the service under section 3466 (b) of the Code. This contention is based on the grounds that your service is “a news ticker service furnishing a general news service similar to that of the public press” within the scope of that section.
We have examined specimen daily runs of your service. It is our conclusion that it is a typical stock quotation and information service contemplated by section 3465 (a) (2) (B) of the Code. In view of its limited and specialized coverage, it is further concluded that your service is not a “news ticker service furnishing a general news service similar to that of the public press.” This latter point, however, is not material to the issue under consideration; that is, whether the exemption under section 3466(b) of the Code applies with respect to the amounts paid by your subscribers for the service.
The exemption afforded by Code applies in respect of payments made by or for •subscribers to services taxable under section 3465(a) (2) (B), who are representative of the “public press,” etc. It does not matter what the qualifications of the party furnishing the services are. Therefore, in the case of the service furnished by you, the exemption applies only to those payments made by subscribers who can establish that they are entitled to the benefits of an exemption in their own right. We are of the opinion that in all other cases you are liable for the collection of the tax imposed by section 3465(a)(2)(B) of the Code at the rate of 8 percent.
In consideration of the possibility that you will wish to make further presentations in the case, we will not immediately issue a formal ruling, in order that you may have an opportunity to do so. If you would like a hearing in the National office, advise us of the day and hour you wish to appear, and if you are not advised to the contrary you may consider such time to be satisfactory. You should call at Boom 4551, Internal Revenue Building, 10th Street and Pennsylvania, N.W., Washington, D.C., at the time fixed.

37. On March 15,1955, the Commissioner of Internal Rev- , enue issued a letter ruling to Dow Jones & Company’s attorneys which read, in part, as follows:

We have carefully considered your brief, left with us at the conclusion of the conference on November 9,1954, together with other items of evidence in file, supporting your contention that the exemption afforded by section 4253(b) of the 1954 Code (section 3466(b) of the 1939 Code, applicable prior to January 1, 1955) applies in respect of the service. In support of your contention you have asserted that the Dow Jones service is “a news ticker service furnishing a general news service similar to that of the public press.” However, we remain of the opinion that this point is not material to the issue now under consideration, that is, whether Dow Jones is liable for the collection of the tax from its subcribers in connection with payments for the service.
Section 4253 (b) of the 1954 Code designates three news disseminating media as beneficiaries of the exemption afforded thereunder. They are the public press, news ticker services furnishing a general news service similar to that of the public press, and radio broadcasting. No other persons or entities are designated: nor is it implied that the exemption is to operate to the direct benefit of any other persons or entities. It is concluded, therefore, that in the case of Dow Jones “ticker” service the exemption will apply only to amounts paid by subscribers who themselves can be identified as one of the three media designated by the statute.
Pursuant to the foregoing, Dow Jones & Company, Inc. is liable for the collection and return of the tax imposed by section 4251 of the 1954 Code at the rate of 8 per centum of all charges incidental to its “Dow Jones News Service” made to such of its subscribers who cannot qualify for exemption. Dow Jones should notify its subscribers of such liability and the tax should be included on statements rendered for the current billing period.

38. On August 12,1955, the Office of the Chief Counsel of the Internal Revenue Service, which shared joint control of this matter with the Tax Rulings Division, issued an opinion withdrawing the Chief Counsel’s concurrence in the March 15, 1955 ruling. On August 14, 1955, a telegraphic i-uling was sent to Dow Jones & Company by R. J. Bopp, Chief, Excise Tax Branch, Tax Rulings Division, holding that all subscribers were exempt from tax on the Dow Jones News Service. This telegraphic ruling read:

REFERENCE TELEGRAM 10th RECONSIDERATION QUESTION APPLICATION EXEMPTION CODE SECTION 4253(B) YOUR DOW JONES NEWS SERVICE COMPLETED CONCLUDED EXEMPTION APPLIES PAYMENTS MADE BY ALL SUBSCRIBERS FOR SERVICE RULINGS MARCH 15 and APRIL 22 HEREBY REVOKED.

39. Following the August 12, 1955 telegraphic ruling the Acting Chief of the Excise Tax Branch, Tax Rulings Division, sent a letter to Dow Jones & Company, dated October 12,1955, confirming the revocation of the March ruling and the issuance of the new ruling of August 12, 1955. The October 12, 1955 ruling read as follows:

In your letter of September 22,1955, you requested a letter ruling in confirmation of our telegraphic ruling of August 12,1955.
The telegraphic ruling related to the application of the exemption afforded by section 4253(b) of the Internal Revenue Code of 1954. You were advised that after reconsideration of the question we have reached the conclusion that the exemption applies to payments made by all subscribers for your “Dow Jones News Service.”
Section 4253(b) of the Code provides on leased wire, teletypewriter, or talking circuit special service, and wire and equipment service, within the scope of section 4252 (d) and (e), do not apply in respect of any payment received from any person for such services utilized in the collection of news for or the dissemination of news through the public press, a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting. After comprehensive study of the matter in several offices of the Internal Revenue Service, it has now been concluded that the term “any payment received from any person” encompasses payments by subscribers for a “news ticker service furnishing a general news service similar to that of the public press.” This conclusion was decisive in the August 12, ruling.
We have previously held on March 15, 1955, that the exemption applied only to payments by subscribers for “Dow Jones News Service” who themselves qualified as one of the three news disseminating media designated by the statute. This ruling, as well as a secondary ruling of April 22,1955, was revoked by the telegraphic ruling.

40. (a) The August 12, 1955 telegraphic ruling and the October 12,1955 letter ruling were issued after thorough and careful consideration of all data and information contained in the Internal Revenue Service file, and of all data and information which had been furnished to the Internal Revenue Service by Dow Jones & Company. More particularly, these rulings were issued after consideration of the contents of daily transcripts of the Dow Jones News Service in comparison with the contents of the New York Times and the Wall Street Journal; consideration of data showing the origin of the news service, the number of employees, breakdown of subscribers and related information; consideration of a number of sample advertisements; consideration of how the service was being furnished technically; and consideration of a May 10, 1955 memorandum of law submitted by attorneys for Dow Jones & Company.

(b) Comparison of the factual data that was considered by the Internal Revenue Service leading to the August 12, 1955 and October 12, 1955 rulings with daily transcripts of the Dow Jones News Service, daily newspapers and other evidence of record herein, show that the nature and content of the Dow Jones News Service at the time of the October 12,1955 ruling were essentially the same as during the period in suit.

41. On September 20,1957, by letter to Dow Jones & Company, the Commissioner of Internal Revenue reversed the rulings of August 12, 1955 and October 12, 1955, and held that subscribers were not exempt from tax unless they were themselves newspapers or other publications representative of the public press, a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting stations or networks. This letter ruling of September 20,1957, read as follows:

At a conference in the office of the Director, Tax Rulings Division, of the Service, on July 18,1957, you were advised that we have reconsidered the telegraphic ruling of August 12, 1955. In that ruling it was found that you were not liable for the collection of the tax on wire and equipment service, now imposed under section 4251 of the Internal Revenue Code of 1954. Specifically, we had concluded that the exemption afforded under section 4253 (b) of the Code applied in respect of payments received from all subscribers to your “Dow Jones News Service”, a news ticker service, regardless of the use made of such service by such subscribers.
Pertinent to the question in issue, section 4253 of the 1954 Code provides that the tax on wire and equipment service does not apply in respect of any payment received from any person for services or facilities utilized in the collection of news for the public press, or a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting, or in the dissemination of news through the public press, or a news ticker service furnishing a general news service similar to that of the public press, or by means of radio broadcasting, if the charge for such services or facilities is billed in writing to such person. Section 130.38 (b) (3) (iii) of Regulations 42, in definition of wire and equipment services withjin the purview of section 4252(d) of the Code, specifies channels furnished between a point of origin and the subscriber’s premises over which are given stock and bond market quotations and reports, racing results, baseball scores and other sporting results, news items, musical programs, weather reports, the time, etc. Section 130.45 of the Regulations specifies that the person to whom the charges are billed must certify in. writing that the services or facilities are utilized as prescribed under the statutory provisions.
Upon reconsideration of the matter, we have concluded that the exemption afforded by section 4253(b) of the Code applies, in respect of your service, only in the case of such of your subscribers which are one of the three media named in the statute, that is newspapers or other publications representative of the public press, _ news ticker services furnishing a general news service similar to that of the public press, or radio broadcasting stations or networks. Accordingly, the August 12, 1955 ruling is modified to conform thereto.
During a telephone conversation on July 22,1957, you advised that barring unforeseen delays it will be feasible to include the tax m statements rendered to your subscribers for the period October 1-31, which will be forwarded on or about October 1. Pursuant to the authority contained in section 7805 (b) of the Code, the modification of the previous ruling will not be applied retroactively for the period prior to October 1, 1957.

42. Commencing November 1, 1957, plaintiffs paid taxes billed to them by Dow Jones pursuant to the September 20, 1957 ruling and prosecuted claims for refund before the Internal Revenue Service for the amounts paid during the period in suit, culminating in a ruling of November 25,1960, by C. R. CuIIigan, Associate Chief, Appellate Division, Office of Regional Commissioner, Internal Revenue Service, New York, New York, denying the claim for refund. This November 25, 1960 ruling read as follows:

The Appellate Division has carefully considered your protest against the proposed action of the District Director of Internal Revenue, Manhattan District, concerning your claim for refund of tax on communication services and facilities (wire and equipment service under section 4251 of the Internal Revenue Code of 1954) for the period November 1, 1957 to May 31, 1959 in the amount of $3,031.01, and information submitted by your representative at the conference held with this Division on June 14,1960.
It has been concluded that your claim for refund should be disallowed in full on the following grounds: The exemption from the tax imposed by section 4251 of the Internal Revenue Code of 1954 that is afforded by section 4253 (b) of the Internal Revenue Code of 1954 applies only to amounts charged for messages from any newspapers, press association, radio or television news broadcasting agency, or news ticker service, to any other newspaper, press association, radio or television news broadcasting agency, or news ticker service or to or from their bona fide correspondents, which messages deal exclusively with the collection of news items for, or the dissemination of news items through, the public press, radio or television broadcasting, or a news ticker service furnishing a general news service similar to that of the public press. [Section 130.45 of Eegulations 42 (1942 Edition); section 42.4253-2 of Eegulations 42 (1959 Edition) .] The status of the Dow Jones News Service as a “news ticker service furnishing a general news service similar to that of the public press” does not determine whether you are exempt under section 4253(b) of the Internal Eevenue Code of 1954 for the reason that, in order for the exemption to apply to the payments made by you to Dow Jones & Company, Inc., you must be one of the media named in the statute. Inasmuch as you are not one of the media named in the statute, your claim for exemption under section 4253(b) of the Internal Eev-enue Code of 1954 is disallowed. Your claim is further disallowed for the additional reason that you have failed to comply with the provisions of the aforesaid sections of the Eegulations, which require that in order for the exemption to apply, the person paying for the services and facilities must certify in writing that the services or facilities are utilized exclusively for the purposes set forth in section 4253 (b) of the Iuternal Eevenue Code of 1954.
The statutory notice of disallowance of your claim for refund will be forwarded to you at a later date by certified mail in accordance with the provisions of section 6532(a) (1) of the Internal Eevenue Code of 1954.
A copy of this letter has been mailed to your representative, Mr. Kelley E. Griffith, c/o Kirkland, Ellis, Hod-son, Chaffetz and Masters, 800 World Center Building, 16th and K Streets, N.W., Washington 6, D.C., in accordance with the authority contained in the power of attorney executed by you and on file with the District Director of Internal Eevenue, Manhattan District.

43. (a) In the issuance of the November 25, 1960 ruling, it was not necessary for the Internal Eevenue Service to reach the question as to whether or not the Dow Jones News Service was a news ticker service furnishing a general news service similar to that of the public press.

(b) At the time it issued the November 25, 1960 ruling, the Internal Revenue Service orally advised Dow J ones that it accepted the status of the Dow Jones News Service as a news ticker service furnishing a general news service similar to that of the public press.

44. Up to the time of trial herein, the Internal Revenue Service had not changed the conclusion it reached when it issued its August 12,1955 and October 12, 1955 rulings that the Dow Jones News Service was a news ticker service furnishing a general news service similar to that of the public press.

45. Pursuant to the provisions of Rule 38 (c) the parties entered into a stipulation, approved by the Commissioner, that the trial of the case is to be limited to the issues of law and fact relating to the rights of the plaintiffs to recover, and reserving the determination of the amount of recovery, if any, to further proceedings.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover and judgment is entered to that effect. Computation of the amount of recovery will be determined pursuant to Rule 47 (c) (formerly Rule 38 (c)). 
      
      Judge Davis’ dissent In which Judge Laramore concurs appears at the end of the Opinion of Commissioner.
     
      
       These sections of the Internal Itevenue Code of 1954 were amended by section 133 of the Dxcise Tax Technical Changes Act of 1958, P.L. 85-859. 72 Stat. 1275.
     
      
       The contents of dally newspapers may also be classified In essentially the same way. However, there Is nothing In the record showing the corresponding percentages of any dally newspaper.
     
      
       The legislative history of this section, which is discussed below, is not helpful in determining what type of ticker services Congress intended to be encompassed within the term “stock quotation and information services.”
     
      
      
         In the Matter of American Telephone & Telegraph Co., et al. Charges, Classifications, Regulations and Practices For and In Connection With Private Line Services and Channels, etc., Dockets 11645, 11646 (34 FCC 1029, May 27, 1963).
     
      
       In fact, such items are carried when they are of general national interest or have significant business implications.
     
      
       In 1955 the nature and content of the Dow Jones News Service were essentially the same as during the period In suit.
     
      
       It is unnecessary to reach the question as to -whether the United States is estopped from challenging the Internal Eevenue Service’s determination as to the status of the Dow Jones News Service. Cf. H.S.D. Co. v. Kavanagh, 191 F. 2d 831 (6th Cir., 1951); Woodworth v. Kales, 26 F. 2d 178 (6th Cir., 1928), cert. den. 280 U.S. 570.
     
      
       Act of June 6, 1932, C. 209, 47 Stat. 169-289. This enactment was extended to 1935 by Act June 16, 1933, C. 90, § 212, 48 Stat. 206; extended to 1937 by Resolution June 28, 1935, C. 333, 49 Stat. 431; and extended to 1939 by Resolution June 29, 1937. C. 402, 50 Stat. 358.
     
      
       This exemption provision which is commonly known as the “public press" exemption can be traced as far back as section 500(g) of the Revenue Act of 1918, C. 18, 40 Stat. 1102. Press association news services, as well as newspapers, were accorded exemption as part of the public press by Article 20 of Treasury Regulations 42 issued pursuant to the 1932 Act. The exemption was expanded by section 708 of the Revenue Act of 1938 to include radio broadcasting. Act of May 28, 1938, C. 289, 52 Stat. 447-584. News radio broadcasting agencies were included in this exemption by Treasury Regulations 42 as amended by T.D. 4825, 1938-2 Cum. Bull. 402, approved July 25, 1938.
     
      
       under tie Bureau ruling that portion of the subscription charge allocable to the cost and market value of the news service was not taxable. Thus a typical customer paying $100.00 per month for the Dow Jones News Service was deemed by the Bureau to be taxable on $33.00 (this amount representing an estimate of transmission charges), while the remaining $67.00 of the payment was deemed exempted from the tax. The basis for the Bureau’s allowance of the exemption is not clear. Plaintiffs say that it constituted tacit recognition that the Dow Jones News Service was part of the “public press.” Otherwise, in plaintiff’s view, the Bureau, having considered Dow Jones to be a telegraph company, would necessarily have deemed the entire subscription payment taxable under section 701(a)(1) (B) which imposed for each telegraph dispatch and message a tax of 5 per cent of the amount charged therefor. Defendant, on the other hand, says that the letter ruling indicates that the only reason the Bureau did not hold the entire subscription charge taxable was because at that time the tax was restricted to amounts paid to a telegraph or telephone company for “leased wire” and that there was no tax on “wire and equipment service” as there is under the present Code. Thus in defendant’s view, the formula established by the Bureau was an attempt to tax only that portion of the charge attributable to payment for lease of the wire, and to exclude from tax that portion of the payment allocable to a service rendered. This argument would be persuasive save for the fact that the Bureau’s ruling as to taxability of subscription charges was predicated not on section 701 (a) (2) which deals with the tax on the amount paid to a telegraph company for leased wire, but rather on section 701(a)(1)(B) which deals with the tax on telegraph dispatches and messages.'
     
      
       The Revenue Act of 1938 expanded the “public press” exemption to include radio broadcasting. See supra, footnote 9.
     
      
       Also sections 701(a) (1) (A) through 701(a) (1) (C) of the 1932 Act were renumbered sections 3465(a)(1) through 3465(a)(3) of the 1939 Code. Section 701(a)(2) of the 1932 Code was redesignated section 3465(b) of the 1939 Code.
     
      
       The House bill retained the “public press” exemption in approximately the same form as the previously enacted versions thereof.
     
      
       Senator George incorporated this letter in the record of hearings on the bill, stating:
      We have here a letter with reference to section 3465 and section 3466 of the 1941 revenue bill which X would like to invite the Treasury’s attention to and would like to incorporate it in the record.
      It is from Mr. Kenneth Hogate, who calls attention specifically to the ticker service that is covered by this amendment to section 3465 and section 3466. I would like to have that entered in the record and like to have the Treasury see it and make a special note of that in view of the statements made.
      Hearings before Committee on Finance, united States Senate, on H.R. 5417 (77th Cong., 1st Sess.), pp. 1384-85.
     
      
       S. Rept. 673, Ft. I, 87th Cong., 1st Sess. The Senate Finance Committee version did not change the language o£ the House-approved bill covering the “public press” exemption.
     
      
       Id. p. 20.
     
      
       Id. p. 50.
     
      
       The amendment, for example, would prevent Dow Jones from being considered a telegraph company, In which event at least a portion of Its subscription charges would be subject to tax. Another effect of the amendment was to exempt from tax payments by Dow Jones to telegraph companies for leased wires and other facilities for use In the collection of Its news and Its dissemination through its news ticker service.
     
      
       This section Is substantially similar to section 42.4253-2 of the Treasury Regulations on Facilities and Services Excise Tax Issued under the 1954 Code.
     
      
       It may be noted that the regulations Issued under the 1932 and 1938 Acts provided specifically that the exemption applied “only” to the messages specified therein. Thus, Article 20 of Regulations 42, promulgated under the Revenue Act of 1932, read in part:
      The exemption from tax authorized with respect to any payment received for services or facilities utilized in the collection of news for the public press or in the dissemination of news through the public press applies only to amounts charged to newspapers or press associations for * * * (2) messages from one newspaper or press association to another newspaper or press association, • * * (Emphasis added.)
      See also Treasury Regulations 42 as amended by T.D. 4825, 1938-2 Cum. Bull. 402, approved July 25, 1938.
     
      
       These rulings revoked a ruling on March 15, 1955, that the exemption applied only to payments by subscribers for the Dow Jones News Service who themselves qualified as one of the three news media designated by the statute. See finding 37. On September 20, 1957, the Internal Revenue Service reversed its August and October 1955 rulings and held that the payments in issue here were not exempt. See finding 41.
     
      
       There is no contention that the Internal Revenue Service has ever interpreted this regulation as inapplicable to the Eow Jones Service.
     
      
       As enacted In 1941, the tax was imposed on "anywire and equipment service; and the specification of services comprised In that term ended with the general phrase “and, all other similar services” (emphasis added). The 1954 Code retains the latter phrase.
     
      
       I do not believe the other rulings which Dow Jones received (in 1932 and 1940) on the communications tax have been shown to be inconsistent with the Government’s understanding of the regulation. On the contrary, the 1940 ruling stated explicitly that the exemption depended on the subscriber’s use.
     