3. Violation of § 451

Greenlining takes issue with the way Pacific's tariffs are drafted, alleging that defendants have made "rules pertaining to charges and service to the public that are unjust and unreasonable because they are deceptive," in violation of the duty to the public owed under § 451.⁴ (Complaint, ¶ 18.) The problem with the tariffs, according to Greenlining, is two-fold: they provide no notice of the business line usage charges that Pacific assesses when a business customer uses voicemail and they are internally ambiguous.

In our discussion, above, of the various voicemail products and how each one functions, we refer generally to portions of two Pacific tariff schedules. The D3 tariff governs voicemail and the rates for the voicemail box. The A5 tariff governs the optional and necessary services (depending upon the voicemail product) required to use the voice mailbox. The A5 tariffs also contains the rates for those services. Greenlining's point is that a business customer who actually reviews the D3 voicemail tariff is not advised of the business line usage charges incurred when call forwarding transfers a call to the voice mailbox or when a message is retrieved. It is undisputed that the D3 tariff does not list those rates themselves; nor does it contain direct references to any part of the A5 tariff, where such rates are listed. In Greenlining's view, this means that all business line usage charges associated with voicemail are untariffed charges. Since a utility may not collect unauthorized charges, these voicemail-related business line usage charges are illegal, Greenlining reasons, and must be refunded to customers.

In prepared testimony, defendants' witness Jones explained: "There are no usage charges for Voice Mail; there are charges associated with the Call Forwarding functionality of Pacific Bell's tariffed Call Forwarding service." (Ex. 500.) Defendants claim the A5 tariff call forwarding charges are not included or cross-referenced in the D3 tariff because defendants want to minimize the administrative burden associated with updating interrelated tariff sheets. Defendants' position is stated in Jones' prepared testimony, as follows.

17Q. Would it be appropriate to include a reference to the Call Forwarding tariffs in the D3 tariff?

A: No. There are frequently changes being made to tariffs. It would be extremely difficult to ensure that reference to Pacific Bell's Call Forwarding schedule numbers and subsections were always kept up-to-date. In addition, it would require that references also be made to cites in any CLC's tariff that provide their own call forwarding service. It is much simpler to keep the tariffs accurate by providing a reference to the name of the service so that customers can refer to the index of the appropriate tariffs to determine the operation and cost of that service.

18Q. Would it make sense to state the usage charges incurred in conjunction with Call Forwarding associated with Pacific Bell Voice Mail in the D3 tariff itself?

A. No. For the same reasons cited above. Not only can the rates and charges change, but so can the schedule and subsection numbers. It is much more sensible to keep these rates in one location, rather than multiple locations, and provide references to those tariffs by using the names of those products and services necessary to be used in conjunction with the Pacific Bell Voice Mail service. Moreover, it would be wrong to state the usage charges in PBIS' tariff because they are not PBIS' charges. PBIS has no control over them. PBIS' tariff describes PBIS's [sic] charges, not Pacific Bell's, not AT&T's not MCI's or any other provider of telecommunications services. (Ex. 500, emphasis added.)

Accordingly, in defendants' view, a business customer who turns to the voicemail descriptions on Sheet 5 of the D3 tariff, should find a "reference" to the products/services which must be used in conjunction with voicemail.

Sheet 5 of the D3 tariff has an introductory paragraph which states that in addition to "basic" and "deluxe" voice messaging services, "options" such as "call transfer" are available. Call transfer is not defined but note 1, which follows the term "call transfer", states that "[a]ll Call Forwarding features are not available in every area." The paragraph further explains that voicemail "[p]rovides the ability for customers to receive and store, record and send voice messages. The customer needs no additional equipment other than a touchtone phone." (Schedule Cal. P.U.C. No. D3.2.A.)

The product-specific descriptions listed after the introductory paragraph on Sheet 5 state:

Voice Mail Series 50

Provides a separate mailbox number that is different from the subscriber's regular telephone number. This number gives subscribers the capability to use their mailbox either as a direct-dial message line, or, when combined with Call Forwarding [note 1], as an overflow line to take calls when the subscriber's regular line is busy or unanswered. A white page directory listing is available for an extra charge. Available in both standard and deluxe versions.

Voice Mail Series 50 PLUS

In addition to providing the same service as Series 50, Series 50 Plus includes Pacific Bell Call Forwarding which allows subscribers to have their calls directly forwarded to Pacific Bell Voice Mail on busy/don't answer conditions. Available in both standard and deluxe versions.

Voice Mail Series 100

Provides voice messaging services on the subscribers' [sic] current phone number. The subscriber's mailbox number is the same as their [sic] telephone number. This allows subscribers to have their calls directly forwarded to Pacific Bell Voice Mail on busy/don't answer or whenever they choose. Available in both standard and deluxe versions.

Voice Mail Series 100 PLUS

In addition to providing the same service as Series 100, Series 100 Plus includes Pacific Bell Call Forwarding and Message Waiting Indicator Features, a specific stutter dial tone that tells the subscriber whenever they [sic] have a message. Available in both standard and deluxe versions. (Ibid.)

What, then, are the products/services which must be used in conjunction with voicemail? The business customer who reads (and rereads) the introductory paragraph and all the product descriptions and makes a careful comparison of them, will reach the conclusion that only Series 50 describes a voicemail product which can function as a stand-alone mailbox. Though it can be used with call forwarding, Series 50 alone neither includes nor requires call forwarding.

Is call forwarding - and the cost of using it - included in the monthly charge for PBIS' voicemail products? Is message retrieval from the mailbox included in that monthly charge? To answer these questions, we follow the progress through the tariffs of the business customer who understands the D3 tariff is not meant to be read in isolation. Such a customer, who also recognizes Call Forwarding (capitalized) as a Pacific Bell service, locates it in the A5 tariff index, and turns to the A5.4 and A5.11 call forwarding tariffs, will then read that:

The Call Forwarding, Busy and Delayed Call Forwarding and Select Call Forwarding Service customer is responsible for the payment of applicable charges for each completed call between their call forwarding equipped line and the number to which the call is forwarded. This charge for local, message unit, zone calling units or dial station toll, applies to all forwarded calls that are answered at the number to which the calls are forwarded. .... (Schedule Cal. P.U.C. No. A5.4.11C.3)

and:

Charges between the originating location and the call forwarding equipped line are applicable in accordance with regularly filed tariffs, local message units, zone calling units, dial station, operator station or person toll. (Schedule Cal. P.U.C. No. A5.4.11C.4)

and:

The subscriber to the line with Call Forwarding Busy Line and/or Don't Answer is responsible for the payment of applicable charges for each complete call between their call forwarding equipped line and the number to which the call is forwarded. This charge for local, or message unit service, applies to all forwarded calls that are answered at the number to which the calls are forwarded. (Schedule Cal. P.U.C. No. A.5.11.1C.3.a.(1))

If the customer also reviews the business rate provisions in the A5.2 local exchange tariff, he or she will read that for business service: "All calls to a local exchange, or ZUM Zones 1, 2, and 3 are measured." (Schedule Cal. P.U.C. No. A5.2.1.B.2.b, emphasis added)

Having closely examined the text of the relevant sections of the A5 and D3 tariffs, we conclude that a business customer who labored through Pacific's tariffs could piece together the total package of costs for ordering a voice mailbox from PBIS and using it. While the tariffs are not user friendly, we conclude they are neither unjust and unreasonable, within the meaning of § 451, nor ambiguous as a matter of law. The tariffs meet a bare minimum level of drafting competency. We think a business customer making choices among technologically sophisticated telecommunications services can expect to review and compare tariffs which contain somewhat abbreviated product descriptions utilizing terms of art and to demand more information, as necessary.

However, the cumbersome effort to trace the references and cross-references between these portions of Pacific's A5 and D3 tariffs, underscores that they are not as clear as defendants argue. We return to the questions we posed above and make several observations.

First, while the D3 tariff clearly states that a touchtone phone is the only additional "equipment" needed for voicemail to function, the tariff does not expressly state whether any other services are needed for the business customer to make use of the voice mailbox. This information is important for the tariff to communicate more clearly the differences between Series 50 and the other three voicemail products. Second, the D3 tariff does not expressly advise the reader that capitalized terms such as "Call Forwarding" are the names of products or services which Pacific or PBIS offer, and that descriptions and rates for them are listed in other Pacific tariffs. Third, the D3 tariff does not readily distinguish between "generic" call forwarding available from CLCs and Pacific's call forwarding service. Fourth, the D3 tariff makes no express mention of the message retrieval process; consequently, any intended cross-reference to the business line usage rates in the A5.2 tariff is obscure.

The fact that we previously approved the filing of these tariffs does not preclude us from requiring revisions now. Moreover, the clarifications are warranted whether the customers who actually read the tariffs are many or few. (Once the tariffs become electronically available, customer access will increase). We reject defendants' argument that correcting the tariffs and then keeping them current will result in an undue administrative burden. We are not requiring Pacific to rewrite all of its thousands of pages of tariffs or to provide cross-references to the tariffs of others. And as a business customer searching Pacific's voluminous tariff books would discover, those tariffs already contain numerous specific, internal, cross-references. For example, the D2 tariff sheets (Attachment 2 to Jones' prepared testimony), which set out the "General Regulations" applicable to Category III services, direct the reader to multiple sections within the A2 tariffs. (See Schedule Cal. P.U.C. No. D2, Sheets 1, 3, 3.1, 4, and 4.1)

Therefore, we direct defendants to revise the D3 tariff as described in greater detail in the ordering paragraphs attached to this decision, and to file the revisions by advice letter within 60 days of the effective date of this decision.