II. The Controversy Between ORA and Pacific
A. Repeat Dialing and Prompted Repeat Dialing
Many of ORA's allegations depend on whether Prompted Repeat Dialing is the same, or a different service from Repeat Dialing. Therefore, a brief description and chronology of Repeat Dialing and Prompted Repeat Dialing is useful in order to understand the controversy.
Pacific's Repeat Dialing Service allows the customer to perform an activation procedure (dialing "*66" from most telephones, or in the case of a rotary phone, "1166") to automatically redial the last number called. The customer can do so whether the call was answered, unanswered, or busy. Once activated, the system would attempt to connect the call for up to 30 minutes, and would alert the customer with a distinctive ring when both the called party and the customer's line were free.
Pacific first tariffed its Repeat Dialing service in 1992 after the Commission approved this service in Decision (D.) 92-06-055. Initially, Pacific offered Repeat Dialing on a subscription only basis where a customer had to pay a monthly charge to access the service.1
In 1996, Pacific began offering Repeat Dialing on a pay per use, as well as a subscription only basis. The pay per use service similarly required the customer to affirmatively perform an activation procedure, i.e., dial "*66". The advice letter requesting authority to offer this service set the price for Repeat Dialing at $0.75 per activation and established a floor and ceiling price for this service.2 Pacific's tariff for pay per use Repeat Dialing states that it functions the same as the service offered on a subscription basis.
In April and May, 2000, Pacific conducted a trial in three California cities, where it sought customer reaction to a service which began by interrupting customers' busy signals after one second to play the following prompt:
"The number is busy. For 95 cents, let Repeat Dialing call you back when the line is free. To use it, just press 3. If you subscribe to Repeat Dialing, there is no additional charge."
On May 26, 2000, Pacific began including a "Prompted Repeat Dialing Launch Notice" carrier bill message at the end of all customer bills. In part, the "Launch Notice" read as follows:
"We're improving Busy Signals in your area soon ... through an enhancement to Repeat Dialing.
"Between July and October, we're phasing in a new Repeat Dialing feature. When you reach a busy number, instead of hearing the usual busy signal, you'll hear a recording that will ask you if you want the call to be automatically redialed for you. If you choose, Repeat Dialing will automatically check the line you are trying to call every 45 seconds for the next 30 minutes. When your call is ready to go through, you'll hear a special ring. This new recording will only play when your call can be automatically redialed. ...
"IMPORTANT: If you have a dedicated line for fax or modem, the prompt may slow down the speed with which this equipment retries on a busy condition. You may call to have the Repeat Dialing Prompt removed at no charge."
In July, Pacific began placing the prompt linked with Repeat Dialing on customers' lines on a statewide basis. According to ORA, the placement of this prompt constituted, in effect a new service which ORA calls Prompted Repeat Dialing. ORA believes this service is distinct from Repeat Dialing, because the customer activates Repeat Dialing via coded dialing ("*66") whereas Prompted Repeat Dialing is a "passive service" (i.e., the prompt is automatic) activated within Pacific's switching equipment when a busy condition is detected on a call between two customers. Pacific, on the other hand, believes that Repeat and Prompted Repeat Dialing are the same service, and the prompt is merely an enhancement or reminder to the customers of an available service they may use in order to complete their call.
B. The Allegations of the Complaint
In offering Repeat Redialing and Prompted Repeat Dialing, ORA complains that Pacific violated:
- Pub. Util. Code § 451's provision that service be "adequate, efficient, just and reasonable" for Pacific's patrons and the public by the manner in which Pacific offers Prompted Repeat Dialing (by interrupting the busy signal with a recorded message);
- Pub. Util. Code § 2889.4 by, among other things, failing to provide detailed information about the blocking options and postcard-sized bill insert that subscribers could return with their phone bill should they choose to block Prompted Repeat Redialing;
- the Commission's General Order (GO) 96-A by raising the rates for both repeat dialing services, by changing the Repeat Dialing Service and by adding the Prompted Repeat Dialing Service without proper notice to customers or the Commission;
- Pub. Util. Code § 454 and § 491 by raising the rates for both repeat dialing services and by changing the service to non-published customers without proper notice to either the customers or the Commission;
- Pub. Util. Code § 702 by failing to comply with the Commission's General Orders relating to rate increases and changes in service;
- Pub. Util. Code § 495 by failing to file a tariff describing Prompted Repeat Dialing;
- Pacific's Tariff Schedule A.2 by implementing Prompted Repeat Dialing on non-published telephone customers' lines without their consent; and
- the right of privacy guaranteed by the California Constitution.
Pacific denies each of these allegations.
C. Burden of Proof
Under Pub. Util. Code § 1702, a complainant must prove an alleged violation of a specific standard contained in a statute, rule or order of the Commission, or a tariff which has been approved by the Commission. The standard of proof is by a preponderance of the evidence. (See, e.g., D.97-05-089, 72 CPUC2d 621, 633-634 ["It is well settled that the standard of proof in Commission investigation proceedings is by a preponderance of the evidence."]
1 Pacific's tariff described the Repeat Dialing offered by subscription:"Repeat Dialing (USOC: CRD) permits the customer to have calls automatically redialed when the first attempt reaches a busy number. The line is checked every 45 seconds for up to 30 minutes and alerts the customer with a distinctive ringing pattern when the busy number and the customer's line are free. The customer can continue to make and receive calls while the feature is activated."2 Pacific's Advice Letter 17909 contained the following description of usage sensitive Repeat Dialing:
"The Repeat Dialing feature, also known as Automatic Callback, is an outgoing call management feature that enables a customer to perform an activation procedure and automatically re-dial the last number called from his/her station. This will apply regardless of whether the original call was answered, unanswered, or encountered a busy tone. The system monitors the calling and called stations for idle condition and will attempt to connect the call for up to 30 minutes."
