5. Discussion
If its allegations are true, Marking Products clearly has been ill-served by the former employee whose business Marking Products thought it had acquired. That cause of action, however, is not before us, nor should it be since this Commission is not empowered to award damages. (Penaloza v. P.T.&T. (1965) 64 CPUC 496, 497.) The claim for money damages and other relief properly has been brought by Marking Products in Los Angeles Superior Court. (Case No. BC220097, submitted as of Nov. 12, 1999.)
What is before us is a complaint of wrongdoing by AT&T, and a request that we order AT&T to transfer the CRS 800 number from Capitano's home and back to Marking Products' offices in California. AT&T argues on brief that this Commission lacks jurisdiction to order the transfer of what it believes to be a primarily interstate telephone service. Putting that argument aside for a moment, we will consider that allegation of the complaint over which we clearly do have jurisdiction-whether AT&T acted in violation of the law or of Commission rule or order in a manner for which relief can be granted. (Pub. Util. Code § 1702.)
Complainant initially alleged that it had acquired ownership of the CRS 800 number when it acquired the assets of CRS Los Angeles. As AT&T correctly notes, it is well settled that one cannot "own" an 800 telephone number, any more than one can own a local telephone number. The Federal Communications Commission (FCC) has held that a customer does not obtain ownership rights in an 800 number even if the customer has invested substantial sums in advertising the number. (In the Matter of Toll Free Service Access Codes (1998) 13 F.C.C.R. 9058.) AT&T's tariff for such service states: "Nothing herein or elsewhere in this tariff shall give any Customer, assignee, or transferee any interest or proprietary right in any 800 Service telephone number." (AT&T Tariff F.C.C. No. 2, 1st Revised Page 20.1.)
Complainant argues that AT&T failed to advise Marking Products that a written transfer document was required to reassign the CRS 800 number, and therefore AT&T should be precluded from asserting its tariff defense. While that argument may have equitable appeal, the law precludes it. AT&T's FCC Tariff 2.1.8 makes a written Transfer of Service form mandatory for reassignment of an 800 number, and Marking Products is presumed by law to know the contents of the tariff. (Marco Supply Company v. AT&T Communications (6th Cir. 1989) 875 F.2d 434, 436.) Moreover, as testimony at hearing revealed, Marking Products does the bulk of its business through numerous 800 numbers that it maintains in five parts of the country, and the company was familiar with the service and knew or should have known of the requirements for transfer.
Finally, Marking Products argues that Capitano had no authority to direct AT&T to transfer the CRS 800 number to his home since, at the time, he was no longer an employee of Marking Products. The argument fails of its own weight, since it is premised on the assumption that Marking Products "owned" or had established proprietary rights in the 800 number. As noted, no such proprietary rights attached, and Capitano, rightly or wrongly, remained the customer of record entitled, under AT&T's tariffs, to direct the disposition of the service.
It follows that Marking Products has failed to show by a preponderance of evidence that AT&T's actions constituted a violation of law or of Commission rule or order. Accordingly, the complaint before this Commission should be, and is, dismissed, without prejudice to Marking Products' civil court action.
Because of our decision on the merits of the complaint, we do not reach AT&T's argument that this Commission lacks jurisdiction to direct a reassignment of an 800 number. AT&T asserts that the FCC has exclusive jurisdiction over an 800 service where more than 10% of calls are interstate in nature. (47 C.F.R. § 36.154; 62 FR 32862, 32924.) The record before us does not establish the ratio of interstate and intrastate calls to the CRS 800 number, nor is it necessary for us to explore this issue since we have decided the case on other grounds. We note in passing, however, that Marking Products has an identical complaint before the FCC in FCC Complaint No. P9380, deemed submitted as of August 1, 2000.
1. Marking Products in a verbal agreement acquired certain assets of CRS in 1996.
2. Marking Products believed that it had acquired a proprietary interest in the CRS 800 number.
3. Neither Marking Products nor CRS submitted a written Transfer of Service Agreement to AT&T to reassign the CRS 800 number to Marking Products.
1. Pursuant to tariff, CRS remained the customer of record for the CRS 800 number and the party responsible for the account.
2. Marking Products is presumed by law to know the contents of the tariff governing 800 number service.
3. Marking Products has failed to show by a preponderance of evidence that AT&T violated any law or any Commission rule or order.
4. The complaint should be denied for failure to establish a cause of action for which relief can be granted in this forum.
IT IS ORDERED that:
1. The complaint of Marking Products, Inc., against AT&T Communications of California, Inc., is denied.
2. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
