Assignment of Proceeding
Timothy Alan Simon is the assigned Commissioner and Jacqueline A. Reed is the assigned ALJ in this proceeding.
Findings of Fact
1. Blue Casa and AT&T California entered into two telecommunications services agreements: an ICA and an ancillary accord, the LWCA.
2. The LWCA is a private agreement.
3. Both agreements make a carrier responsible for the payment of unpaid 900/976 charges incurred by its end-users, unless the carrier orders a block placed on the lines of the transgressing end-users.
4. Both agreements require a carrier to submit written notice of any disputed charges within 90-calendar days of the billing due date of the invoice in which the charge appears, and prescribe the carrier must place any disputed amounts in an escrow account.
5. In April 2006, AT&T California began billing Blue Casa for a large volume of 900/976 charges that Blue Casa customers incurred with third-party ISPs.
6. AT&T California reimbursed the third-party ISPs for the charges, which remained unpaid by Blue Casa.
7. In August 2006, Complainant received the first collection notices for outstanding 900/976 charges.
8. In December 2006, Complainant learned the identity of the single Blue Casa customer that was incurring approximately $10,000 per month in unpaid 900/976 charges.
9. The record indicates that although Blue Casa knew how to successfully order the blocking of 900/976 calls on a line, it did not attempt to specifically order a 900/976 block on its problem customer's line until August 2007.
10. Correcting Complainant's order submission errors, AT&T California placed a block on the Blue Casa line responsible for the majority of outstanding 900/976 charges in early September 2007.
11. A day after AT&T California established the 900/976 line block, Blue Casa removed the block and submitted a valid line blocking request eight days later.
12. In October 2007, Complainant filed the instant complaint asking the Commission to enjoin AT&T California from disconnecting its services or interfering with its provision of services for its customers.
13. In November 2007, Complainant and Defendant settled upon a payment arrangement to escrow the disputed amounts into a separate account until resolution of this matter.
14. In early December 2007, Blue Casa ceased to make payments under the escrow agreement.
15. On December 11, 2007, the Commission directed Blue Casa either to place the remaining disputed funds immediately into escrow, in accordance with the ICA, or to honor the terms of the escrow agreement.
16. On December 14, 2007, Blue Casa reaffirmed the terms of the November 2007 agreement.
17. Blue Casa did not timely dispute all the 900/976 charges billed prior to August 2007.
18. Blue Casa is fully liable under the ICA for the outstanding 900/976 charges accrued between April 7, 2006 and February 7, 2008, including late payment fees.
Conclusions of Law
1. AT&T California's motion to dismiss the cause of action stemming from the LWC agreement should be granted because the Commission is not the arbiter of private accords, and this specific contract is not a matter over which it has subject matter jurisdiction.
2. Blue Casa's motion to dismiss the ICA-related cause of action should be denied because the issue is ripe, and the ICA does not condition Complainant's obligations on whether it is obtaining services under the agreement at the time.
3. Blue Casa is responsible for the payment of the outstanding 900/976 charges accrued by its end-users between April 7, 2006 through February 7, 2008, because it failed to order the appropriate blocking for the associated lines, in accordance with Section 8.13 of the Resale Appendix of the ICA.
4. The specific terms of the ICA's dispute provision are applicable in this proceeding.
5. Blue Casa waived its right to dispute all 900/976 charges accrued by its end-users prior to August 23, 2007, because it failed to submit a formal and timely dispute of the charges to AT&T California, in accordance with Sections 34.4 and 29.13.4.1 of the ICA's General Terms and Conditions.
6. The assessment of late payment charges against Blue Casa is in accordance with Sections 34.1.5 and 34.1.5.1 of the ICA's General Terms and Conditions.
7. Blue Casa should cause the full amount currently escrowed in this proceeding, along with accrued interest, to be released to AT&T California within five business days of the effective date of this Order.
8. Blue Casa should pay AT&T California, via wire transfer, the remaining balance due in this matter within 10 business days of the effective date of this Order.
9. This order should be effective immediately so that the books of account at both companies may be finalized on this matter.
10. This proceeding should be closed.
11. Complainant's appeal of the Presiding Officer's Decision should be denied.
ORDER
IT IS ORDERED that:
1. The December 3, 2007 Motion of Pacific Bell Telephone Company, doing business as AT&T California, to partially dismiss the complaint of Blue Casa Communications, Inc. (Blue Casa) to the extent that it seeks interpretation and enforcement of these parties' specific Local Wholesale Complete Agreement, a private accord, is granted.
2. The December 19, 2007 Motion of Blue Casa for leave to partially dismiss its complaint regarding the parties' interconnection agreement (ICA) and request for related relief is denied.
3. Blue Casa is obligated under the ICA to pay for the outstanding 900/976 charges, including late payment fees, accrued by its end-users between April 7, 2006 and February 7, 2008.
4. Blue Casa shall pay AT&T California $267,394.47 for 900/976 charges invoiced under the ICA between April 7, 2006 and February 7, 2008.
5. Blue Casa shall pay AT&T California late payment charges calculated in accordance with Sections 34.1.5 and 34.1.5.1 of the General Terms and Conditions of the ICA.
6. AT&T California shall calculate the late payment charges owing and due and provide the total to Blue Casa within three business days of the effective date of this Order.
7. Blue Casa shall cause the full amount currently escrowed in Case (C.) 07-10-015, along with accrued interest, to be released to AT&T California within five business days of the effective date of this Order.
8. Blue Casa shall pay AT&T California, via wire transfer, the remaining balance due in this matter within 10 business days of the effective date of this Order.
9. Complainant's appeal of the Presiding Officer's Decision is denied.
10. C.07-10-015 is closed.
This order is effective today.
Dated March 12, 2009, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
TIMOTHY ALAN SIMON
Commissioners
