Decision 01-04-037 April 19, 2001
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
The Greenlining Institute, Latino Issues Forum, Complainants, vs. Pacific Bell, Pacific Bell Information Services, Defendants. |
Case 99-01-039 (Filed January 27, 1999) |
OPINION DENYING COMPLAINT BUT ORDERING
REVISIONS TO TARIFFS AND BILL FORMAT
TABLE OF CONTENTS
OPINION DENYING COMPLAINT BUT ORDERING
REVISIONS TO TARIFFS AND BILL FORMAT 1
Summary 22
Procedural Background 22
Discussion 44
1. Voicemail for Business Customers - the PBIS Products 55
2. Using Business Voicemail 66
3. Violation of § 451 887
4. Violation of § 2896(a) 1414
4.1. PBIS' Print Advertising 151514
4.2. Sales Disclosure 191918
4.3. Customers' Testimony 2020
4.4. Defendants' Adjustment Policy 2222
4.5. Conclusion 232322
5. Violation of Pacific's Tariff Rule 12 2424
6. Violation of § 2890 2525
7. Violation of Business and Professions Code § 17200 et seq.
and § 17500 et seq. 282827
8. Conclusion 292928
9. Request for Review and Appeal of Presiding Officer's Decision 2929
1. § 451 2929
2. § 2890 323229
3. Print Advertising 333329
4. Consistency with the POD in C.98-04-004 et. al 333329
5. Denial of the Complaint 343429
Findings of Fact 343429
Conclusions of Law 383829
ORDER 393929
We deny the complaint filed by Greenlining Institute and Latino Issues Forum (collectively Greenlining or complainants) against Pacific Bell and Pacific Bell Information Services (Pacific and PBIS, respectively, or collectively, defendants). We conclude, among other things, that the preponderance of the evidence does not establish that defendants deceptively marketed and sold voicemail and associated services to business customers. Because we are troubled by some of the evidence in the record, however, we direct defendants to revise their tariffs and bill format to create clearer references and cross-references to call forwarding and the business line usage charges associated with voicemail.
Greenlining filed this complaint on January 27, 1999; defendants filed a timely answer on March 25. On April 13, Administrative Law Judge (ALJ) Jean Vieth and the assigned commissioner, Commissioner Josiah L. Neeper, held a prehearing conference. As required by Pub. Util. Code § 1702.1, Commissioner Neeper's scoping memo, issued April 16, identified issues for hearing, set a procedural schedule, and designated ALJ Vieth as the presiding officer.1
Thereafter, on April 23, defendants filed a motion to dismiss the claims pursuant to Business & Professions Code § 17200 & 17500 and for summary judgment. Greenlining filed an opposition to the motion on May 10 and defendants filed a reply on May 17. In addition, defendants on April 23 and Greenlining on May 10, respectively, filed motions to file certain supporting
materials under seal. By ruling dated June 4, the ALJ granted the motions to file the documents under seal but denied the motion to dismiss and for summary judgment.
This case went to evidentiary hearing on August 27 and 31 and on September 1 and 2. Commissioner Neeper attended much of the latter three days of the four-day hearing. On August 30, Greenlining filed a first amended complaint after the ALJ ruled, on August 27, that it might do so for the limited purpose of adding 25 signatures though she continued to believe the signatures were not required by § 1702. 2 Defendants indicated they would not oppose the request or require additional discovery. In an oral ruling on September 2 (confirmed in a written ruling September 9), the ALJ struck modifying clauses added as additional text in the first amended complaint.
The parties filed concurrent opening briefs on September 22 and concurrent reply briefs on October 4, whereupon this case was submitted for decision. The presiding officer's decision (POD) was mailed on December 22, 1999. On January 20, 2000, Commissioner Bilas filed a request for review and on January 21, Greenlining filed an appeal of the POD. On February 7, defendants filed a response to Greenlining's appeal and Greenlining filed a response to Commissioner Bilas' request for review. The Commission held oral argument on February 23, 2000. This decision on appeal differs from the Presiding Officer's MOD-POD in that it declines to adjudicate the claims brought pursuant to the California Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.). The MOD-POD was not mailed for an additional round of comments because the appeal warranted consideration in closed session Pursuant to P.U. Code § 1701.2(c).
The essence of this dispute is Greenlining's assertion, and defendants' denial, that defendants have engaged in deception in the marketing and sale of voicemail to business customers. Among other things, Greenlining alleges defendants have filed ambiguous tariffs and failed to disclose either the role call forwarding plays in the use of most of the business voicemail products at issue or the charges incurred each time a call is forwarded to a voice mailbox associated with the customer's business telephone line. Similarly, according to Greenlining, defendants have failed to disclose the costs assessed each time a customer uses a business telephone line to retrieve messages from the customer's voicemail box.
In his scoping memo, Commissioner Neeper noted that relatively few material facts appeared to be in dispute from the outset. He identified three primary issues for evidentiary hearing: 1) defendants' intent to deceive customers about the total costs of business voicemail; 2) whether or not deception occurred; and 3) the scope of any remedies, as appropriate.
The parties' briefs argue markedly different interpretations of a record that encompasses over 80 separate documentary exhibits, including the prepared testimony of 25 witnesses. To provide context for our examination of the parties'
positions, we begin by reviewing the different business voicemail products at issue, how they work, and how defendants charge for using them. We then consider the merits of each cause of action in light of the evidentiary record.
1. Voicemail for Business Customers - the PBIS Products
First we note that the voicemail products at issue are among the "enhanced services" collectively known as the "Category III Services" offered by Pacific's affiliate, PBIS, an enhanced services provider (ESP). These voicemail products are tariffed in Pacific's Schedule Cal. P.U.C. No. D3.2 under the title "Pacific Bell Voice Mail."3
PBIS offers a number of voicemail products to business customers. All of them allow a telephone caller to leave a voice message in the customer's voice "mailbox" and allow the customer to retrieve the message from the mailbox by telephone at some subsequent time. At evidentiary hearing, the parties focussed primarily on four voicemail offerings: Pacific Bell Voice Mail Series 50, Series 50 Plus, Series 100, and Series 100 Plus. The parties do not dispute the way these products work but they disagree on whether a full disclosure of the costs of using these products has been made to business customers (including potential customers) in the tariffs, in descriptions of the products by defendants' customer service representatives and in direct mail advertising sent by PBIS. The tariffs
and the testimony of defendants' witnesses Carrisalez and Jones establish the following operational facts.
· Series 50: Described in the tariff as a "direct-dial message line," this product does not require call forwarding. The voice mailbox is connected to a unique telephone number (a number different from the telephone number for the customer's business line, if the customer has one). All calls to the unique number are answered by voicemail. However, a customer can combine the product with call forwarding (offered by Pacific or a competitive local exchange carrier (CLC)) so that when the customer's business line is busy or unanswered, calls are transferred and callers may leave a message in the voice mailbox. The tariff terms this roll-over function an "overflow line" option.
· Series 50 Plus: This product is not only a direct-dial message line with a unique number but, because the voice mailbox is linked by Pacific's call forwarding service to the customer's business telephone line, it also serves as an "overflow line."
· Series 100: This product is not a stand alone message line but must be used with call forwarding (either Pacific's or a CLC's). The number for the voice mailbox is the same as the number for the customer's business telephone line; when the business line is busy or unanswered, calls are transferred to the voice mailbox.
· Series 100 Plus: Like Series 100, this product uses the same number as the customer's business line and requires call forwarding. This product includes Pacific's call forwarding service as well as another service, a stutter dial tone which indicates a message is waiting.
Message retrieval is the same for all products. The business customer calls a seven-digit number to gain access to the voice mailbox.
1 Unless otherwise indicated, all subsequent citations to sections refer to the Public Utilities Code, and all subsequent citations to rules refer to the Rules of Practice and Procedure, which are codified at Chapter 1, Division 1 of Title 20 of the California Code of Regulations. 2 In seeking to add 25 signatures to its complaint, Greenlining explained it wished to buttress the cause of action alleged under § 451 against any further, potential procedural challenge by defendants. Section 451 requires that a public utility's rates, charges, and rules affecting those rates and charges, be just and reasonable. Defendants' motion to dismiss and for summary judgment argued that the procedural requirements of § 1702, which govern filing of complaints, bar Greenlining from challenging a tariffed rate under § 451 unless at least 25 customers signed the complaint. The ALJ's June 4 ruling had rejected this argument on the basis that Greenlining's complaint did not challenge the reasonableness of any rates, per se, but rather defendants' disclosure practices. This decision does not change the June 4 ruling; the 25 signatures simply have no bearing on the adjudication of any issue in this case. 3 The Commission authorized Pacific to transfer its Information Services Group (ISG) to a new affiliate, PBIS, in 1992. (Decision (D.) 92-07-072 (1992), 45 CPUC 2d 109.) The Commission deferred for future consideration the question of whether PBIS is subject to regulation as a public utility but conditioned approval of the spin-off, requiring among other things, that Pacific and PBIS consent to tariff the enhanced services (like voicemail) which PBIS offers. (45 CPUC2d at 139-140 [Ordering Paragraphs 6, 13, 14].) In 1993 in Resolution T-15139, the Commission authorized the creation of Pacific's Tariff Schedule Cal. PUC No. D, "Category III Services."
