3. Stipulated Facts
The parties' Stipulated Facts consist of 74 separately numbered stipulations and approximately 23 separately numbered attachments. The stipulations reveal the following factual agreement:
· Pacific offers the two intraLATA local toll calling plans at issue in this proceeding pursuant to its tariff Cal PUC A6.4.4, "The Pacific Bell Saver 60 Plan" (Saver 60) and the "Pacific Bell Saver Plus" (Saver Plus).2
· Between April 22 and May 8, 1999, Pacific used a direct mail letter campaign to market Saver 60 to 202,462 targeted residential customers and Saver Plus to 223,991 targeted residential customers. The letters represented that "[b]ased on your calling history from December 1998 through February 1999, you would have saved money with our [local toll] plan" and urged interested customers to return a postage-paid envelope or contact Pacific via a toll-free number.3 The SBC Operations, Inc., Corporate Call Center, associated with Pacific's parent company SBC Inc. (SBC), answered calls to this toll-free number.
· Between May 14 and May 19, 1999, Pacific followed up with a direct mail postcard to 2,600,000 residential customers, including those targeted by the letter campaign. The postcard did not include representations that the local toll plans would save customers money but urged interested customers to contact Pacific via a toll-free number (different from the number listed in the letters). Pacific Bell Call Centers answered calls to this toll-free number.
· Between May 6 and June 15, 1999, the SBC Operations, Inc. Corporate Call Center marketed Pacific's toll call plans by telephone solicitation of a target market numbering 720,000 residential customers.
· Training materials and sales scripts used by SBC and Pacific customer service representatives who answered in-bound calls about the toll call plans or made out-bound telephone solicitations did not contain the three-month averaging sales strategy.
· On May 26, 1999 (about a month before filing the complaint) UCAN contacted Pacific by letter to express concern that one of its members, Mr. James MacFarlane, had calculated he would have been charged $14.10 under the Saver 60 plan for toll calls he made from December 1998 through February 1999, or 5.46% more than the $13.33 he actually incurred. MacFarlane, a residential customer, had received the Saver 60 direct mail letter.
· On June 24, 1999 (five days before the complaint was filed) Pacific contacted UCAN by letter, acknowledged the error, stated it had discontinued the mailing, and described the research and refund activities it planned to undertake.
· Pacific's records show that 1,330 customers who purchased Saver 60 after receiving the Saver 60 direct mail letter, both (1) did not save money under the plan after purchasing it; and (2) fit the MacFarlane profile. That is, for each of these customers, the three-month average of the customer's December 1998 through February 1999 toll call charges erroneously suggested plan savings because, on a month-to-month basis, the plan cost more.
· Pacific's records show that 222 customers who purchased Saver Plus after receiving the Saver Plus direct mail letter, both (1) did not save money under the plan after purchasing it; and (2) fit the MacFarlane profile. That is, for each of these customers, the three-month average of the customer's December 1998 through February 1999 toll call charges erroneously suggested plan savings because, on a month-to-month basis, the plan cost more.
· On September 23, 1999, Pacific wrote to the identified 1,330 Saver 60 customers, disclosed the calculation error, and stated the customers' accounts would be adjusted. The account adjustments total $9,329.69.
· As of October 29, 1999, the date the Stipulated Facts were executed by the parties, Pacific was in the process of writing to the identified 222 Saver Plus customers to disclose the calculation error and explain the customers' accounts would be adjusted. These additional account adjustments total $3,105.40.
The Stipulated Facts do not identify the total number of customers who received inaccurate calling profile information by direct mail. The Stipulated Facts identify only the 1,552 customers (1,330 plus 222) who received inaccurate calling profile information, purchased a toll call plan, and then failed to save money. The Stipulated Facts also quantify the refunds already made to these 1,552 customers.
However, two additional groups of customers received inaccurate calling profile information by direct mail: those who did not purchase a plan; and those who purchased one and thereafter, did save money. At the time the parties executed the Stipulated Facts, Pacific had not quantified these groups but was working to do so. The Settlement provides this additional quantification.
