Discussion

Pursuant to Pub. Util. Code § 1702,³ this Commission may entertain any complaint that sets "forth any act or thing done or omitted to be done by any public utility, . . . in violation or claimed to be in violation, of any provision of law or of any order or rule of the commission." The complaint fails to meet this standard and we therefore dismiss it. (See AC Farms Sherwood vs. Southern California Edison Company, D.02-11-003.)

In Ordering Paragraph 5 of D.07-12-020, the Commission authorized carriers to "voluntarily contract with each other to pay intrastate access charges different from those adopted in today's decision." The Commission also explicitly required all California-certificated competitive local exchange carriers to limit their intrastate access charges to the higher of AT&T's or Verizon's intrastate access charges, plus 10%, over the objection of numerous competitive carriers that the incumbent carrier's rates were an unreasonably low proxy for the competitive carriers' actual costs.

Qwest does not allege that any defendant has failed to offer tariffed intrastate access services in compliance with D.07-12-020.

The essence of Qwest's complaint is that the defendants have discriminated against Qwest by offering lower intrastate access rates to certain contractual customers, and not offering these lower rates to Qwest. This theory underlies Qwest's three claims for relief in its amended complaint. Qwest, however, presented this theory to the Commission in its comments on
D.07-12-020 and, as set forth below, the Commission rejected the theory and gave blanket approval for carriers to voluntarily contract for intrastate access services at rates different from the tariff.

In D.07-12-020, the Commission's primary goal was to bring to an end "excessive intrastate access charges" with "purchasing carriers unable to seek alternatives to terminating the call traffic." In that decision, the Commission accomplished its goal by requiring competitive local exchange carriers to offer intrastate access services at a tariffed rate, subject to a cap based on the incumbent local exchange carriers' cost-based intrastate access services rates. The competitive local exchange carriers opposed using the incumbents' tariffs rates as a cost proxy because the competitive carriers claimed that their costs were higher than the incumbents' costs.

In the 2007 decision, the Commission also recognized that the carriers had existing contracts that specified intrastate access services rates and the Commission declined to require that these contracts conform to the new rate cap limitation and stated that these contacts "are not affected by" the 2007 decision. Similarly, the Commission authorized carriers prospectively to enter into voluntary contracts for intrastate access services at rates "different" from the rates adopted in the decision.

Qwest alleges that defendant carriers have offered other competitive local exchange carriers "different" rates that are lower than the intrastate access rates offered to Qwest. Qwest contends that this violates the statutory prohibition against discrimination found in Pub. Util. Code § 453.⁴ Qwest also points to Pub. Util. Code § 532 as requiring all public utilities to offer services only as specified in compliance with their filed tariffs.⁵

In authorizing carriers to voluntarily contract for different rates, the Commission noted but rejected Qwest's contention that "§§ 532 and 453 require these carriers to charge tariffed rates and not to discriminate." Over Qwest's objection, the Commission authorized voluntary contacts at rates to be determined by the parties, without regard to the tariff rate. The Commission also declined to extend to existing contracts the limitations set forth in the 2007 decision, again over Qwest's objection that "off tariff pricing arrangements" had been made between certain carriers and not made available to all. We find, therefore, that the Commission expressly authorized intrastate access rates to be set in voluntary agreements between carriers.

Qwest next argues that any such contracts were required to be filed and approved by the Commission, as well as made available to all similarly situated carriers. Finding no explicit filing requirement in the 2007 decision, Qwest points to General Order (GO) 96-B, Telecommunications Industry Rule 8.2, as requiring that all contracts for tariffed services be submitted to the Commission for its approval and that the terms of such offerings be available to all similarly situated carriers.

In D.07-12-020, however, the Commission gave carriers blanket authorization to "voluntarily contract with each other to pay intrastate access charges different from those adopted in today's decision." The Commission did not place specific limitations on the contract rates, as it did with the tariff intrastate access charge rates, and no additional ratemaking approval is required because the Commission had previously authorized all "different" rates. This outcome is also consistent the Commission's determination to exempt from the decision's limitations all then-existing intrastate access charge contracts

The complaint fails to show a violation of California law because the Commission was aware of alleged off-tariff pricing for intrastate access services and the Commission let those arrangements stand, and authorized future such arrangements.⁶ Qwest's instant complaint is based on the theory that such arrangements violate Pub. Util. Code §§ 532 and 453, a theory that the Commission rejected.

Therefore, we find that Qwest has not alleged that any defendant has failed to offer intrastate access services in conformity with the tariff filing and rate limitations found in D.07-12-020 or that any different intrastate access rates were reached by involuntary means. We hold that Qwest's allegations of lower contract rates for intrastate access services made available to certain carriers but not to Qwest do not allege a violation of California law or Commission regulation and, consequently, fail to state a claim upon which relief can be granted. Accordingly, Qwest's complaint should be dismissed.

Need for Hearing

There are no disputed issues of material fact and no evidentiary hearings are necessary.

³ All statutory citations are to the Public Utilities Code unless otherwise indicated.

⁴ Section 453 provides: "No public utility shall, as to rates, charges, service, facilities, or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to a prejudice or disadvantage."

⁵ Section 532 also grants the Commission explicit authority to exempt public utilities from the tariff requirement: "The commission may by rule or order establish such exceptions from the operation of this prohibition as it may consider just and reasonable as to each public utility." Thus, the Commission has the authority to exempt public utilities from the requirement to offer service only pursuant to filed tariffs, upon a showing that such exemption is just and reasonable.

⁶ The Commission did require all carriers to file tariffs subject to a rate cap, but violations of those requirements are not part of Qwest's complaint.