Wong Comment Dec.

II. Procedural Background

A. Introduction

These complaint cases involve disputes between Westcom and Citizens, and events which took place in the 1989 through 1992 timeframe. In an Administrative Law Judge's (ALJ) ruling on October 2, 1992, C.92-03-049, C.92-09-006, C.92-09-011 and C.92-09-025, were consolidated.

On August 11, 1992, the Commission adopted D.92-08-028. This interim decision was issued in part to address the issue raised in C.92-03-049 of whether Westcom could continue to withhold payment of the disputed amounts without facing the risk of Citizens terminating the access services that it provided to Westcom.³

On December 16, 1992, the Commission issued D.92-12-038. That decision denied the interim relief sought by Westcom in C.92-09-006 and denied the motion of Citizens to dismiss C.92-09-006. The Commission also denied the interim relief sought by Citizens in the complaint case filed by Citizens against Westcom in C.92-09-025. The decision also granted Citizens' motion to dismiss Westcom's complaint in C.92-09-011.

B. C.92-03-049

Westcom filed its original complaint against Citizens in C.92-03-049 on March 30, 1992. On May 18, 1992, Westcom filed an amended complaint. At the start of the evidentiary hearing, Westcom's President, J. Michael Sunde, clarified that the amended complaint should be substituted for the original complaint, and that the exhibits to the original complaint should be attached to the amended complaint.⁴ Citizens filed its answer to both the original complaint and to the amended complaint.

The evidentiary hearing was held on June 2, 1992 through June 4, 1992. Prior to the start of the hearing, argument was held on Citizens' motion to strike certain portions of Westcom's complaint involving FGB switched access service. Citizens sought to strike those references because Westcom had specified that it was using the FGB service for 100% interstate use. Since Westcom reported its FGB usage as 100% interstate usage, Citizens applied its interstate access tariff to the FGB service. After review of the pleadings and hearing argument on the motion, the motion was denied. However, the assigned ALJ stated that this jurisdictional issue would be examined as part of this proceeding.

At the request of the ALJ, late exhibits were submitted by both Westcom and Citizens. Westcom submitted "Late-Filed Exhibit No. 26." Since no objection to its admission was raised by Citizens, Exhibit 26 shall be received in evidence.

Late-filed Exhibit Numbers 27, 28, 34, and 38 were submitted by Citizens. Since Westcom has not objected to these four exhibits, they shall be received in evidence.

Citizens also submitted two other exhibits which were labeled as "Late-Filed Exhibit No. 37" and "Late-Filed Exhibit No. 39." Those two exhibits were submitted in response to the ALJ's request. (See 3 R.T. 49.) Late-Filed Exhibit No. 37 reflects the amount that Citizens back billed to Westcom for FGD switched access service. Late-Filed Exhibit No. 39 reflects the amount that Citizens back billed to Westcom for FGB service. The labeling of these two exhibits were in error since those two exhibit numbers were previously assigned to two other exhibits. (See 3 R.T. 9-10, 43-44, 69.) In order to clarify the exhibit order for the record, what was submitted as Late-Filed Exhibit No. 37 and Late-Filed Exhibit No. 39 shall be relabeled as Exhibit 46 and Exhibit 47, respectively. Since Westcom did not object to the receipt of these two exhibits, Exhibits 46 and 47 shall be received into evidence.

Citizens submitted its "Revised Late-Filed Exhibit No. 39" to the ALJ on July 8, 1992. (See 3 R.T. 43-44.) This exhibit shall be received into evidence as Exhibit 39.

Citizens also submitted "Late-Filed Exhibit No. 29." Westcom objected to the admission of Exhibit 29 on the basis that the rate element for the Information Surcharge shown in Exhibit 29 of $.0267 is incorrect. Westcom contends that the correct rate element is .000267.

In Citizens' response to Westcom's objection, Citizens asserts that the rate quoted by Westcom of $.000267 is the rate per access minute, while the surcharge of $.0267 shown in Exhibit 29 is the rate per 100 access minutes. Thus, both rates are correct. With Citizens' clarification, the objection of Westcom to the admission of Exhibit 29 is overruled, and Exhibit 29 shall be received into evidence.

One of the issues in contention in this proceeding was the possible recording and timing differences between the switching and billing equipment of Westcom and Citizens. During the hearing, the ALJ encouraged Westcom and Citizens to see if they could reach an agreement to test for possible timing differences in the equipment of both companies. Westcom and Citizens agreed to joint testing, which occurred on July 28, 1992. The Telecommunications Branch of the Commission's Advisory and Compliance Division (CACD) were observers during the testing.⁵ After the completion of the joint testing, the ALJ permitted the submission of an exhibit memorializing the results of the joint testing. "Late-Filed Exhibit #45" was submitted on July 30, 1992. Since no one objected to the receipt of Exhibit 45 into evidence, that exhibit shall be received into evidence.

Transcript corrections were submitted by Citizens in a letter dated July 29, 1992. Since no opposition to Citizens' proposed corrections was submitted, Cititzens' transcript corrections shall be accepted and the corrections shall be made to the reporter's transcript.

After the close of evidentiary hearings, Westcom filed a petition to set aside submission and to reopen the proceedings. Citizens filed a response in opposition. In an ALJ ruling dated July 31, 1992, the petition to set aside submission was denied.

This matter was submitted on August 25, 1992 following the filing of concurrent reply briefs.

At the evidentiary hearing, the ALJ informed the parties that an interim decision would issue to address Westcom's request for a preliminary and permanent injunction to prevent Citizens' threatened cutoff of access services to Westcom. That decision was issued on August 11, 1992 as D.92-08-028. In that decision, the Commission denied Westcom's request for injunctive relief in C.92-03-049, and held that Citizens could immediately terminate service to Westcom for its failure to pay in accordance with the applicable tariff payment provision. The remaining issues raised in the evidentiary hearing are addressed in this decision.

Westcom's opening brief contains a section entitled "Prior Citizens' Abuses." In that section, Westcom describes a complaint case (C.89-10-027) that it filed against Citizens in 1989. A copy of that complaint case was attached to Tab 2 of Exhibit 4. Westcom moves in its opening brief to "admit all documents contained in Westcom's Exhibit 4, including Tab 2" because Westcom alleges it shows the "past illegal and fraudulent billing practices of Citizens." (Westcom Opening Brief, p. 1, underlining in original.)

During the evidentiary hearing in this proceeding, the ALJ asked about the status of C.89-10-027. He was informed that a settlement had previously been reached in that case, whereby Westcom agreed to drop C.89-10-027 and Citizens agreed to drop a cross-complaint against Westcom. (1 R.T. 36.) The ALJ then ruled that Tab 2 of Exhibit 4 would not be received into evidence. However, official notice of the previously filed complaint was taken, and parties were permitted to argue about that prior filing in their briefs. (1 R.T. 39-40.) The ALJ also specifically stated:

"I'm not planning on entertaining evidence of prior Complaints in this case. I plan to restrict the evidence to things that have been alleged in the latest Complaint filed by Westcom. (1 R.T. 40.)

The Commission also addressed the allegations contained in C.89-10-027 when Westcom filed C.92-09-011 against Citizens alleging the same allegations it made in C.89-10-027. The Commission in D.92-12-038 dismissed C.92-09-011 with prejudice, in part, because Westcom failed to allege any new information. (D.92-12-038, p. 5.) Since the ALJ has already ruled on the admissibility of Tab 2 of Exhibit 4, and because the Commission has revisited the allegations in C.89-10-027 through Westcom's subsequent filing of C.92-09-011 and dismissal in D.92-12-038, Westcom's request in its opening brief to admit "all documents contained in Westcom's Exhibit 4, including Tab 2" is denied.

Westcom has deposited with the Commission the sum of $12,608.79 in C.92-03-049. This amount was deposited by Westcom prior to the hearings in an agreement reached between the parties, which was memorialized in an April 2, 1992 letter from the ALJ to the parties. The amount was deposited by Westcom in order to avoid termination of access service to Westcom by Citizens prior to the hearing. (D.92-08-028, p. 3.) No interest on the deposited amount is being earned since the amount on deposit with the Commission is less than $20,000. (See Pub. Util. Code § 1702.2.)

C. C.92-09-006

On September 3, 1992, Westcom filed its "Complaint For Temporary Restraining Order, Cease And Desist Order, Preliminary And Permanent Injunctions And Reparations" against Citizens. On November 13, 1992, Westcom filed its "First Amended Complaint." On April 8, 1993, Westcom filed its "Second Amended Complaint."

Although Westcom's first and second amended complaints state that "Westcom incorporates by reference Complaints 92-03-049, 92-09-006 and 92-09-011" into its amended complaints, we shall treat the First Amended Complaint and Second Amended Complaint as amendments to C.92-09-006 only. That is because the evidentiary record in C.92-03-049 was closed, and the matter was submitted upon the filing of reply briefs in C.92-03-049. (See 3 R.T. 150.)⁶ Since C.92-09-011 was dismissed with prejudice in D.92-12-038, C.92-09-011 can no longer be amended.

Citizens filed its answer to the original complaint, as well as answers to the first and second amended complaints.

A prehearing conference was held on January 22, 1993 in C.92-09-006, C.92-09-025 and C.92-09-011. In June 1993, five days of evidentiary hearings were held in C.92-09-006 and C.92-09-025.

D. C.92-09-025

On September 16, 1992, Citizens filed a complaint against Westcom "For Preliminary And Permanent Injunction, Order To Show Cause, Accounting And Reparations, And For Revocation Of Certificate Of Public Convenience And Necessity."⁷ Westcom filed its answer on October 5, 1992. Testimony regarding the issues presented in C.92-09-025 was developed in the June 1993 evidentiary hearing with C.92-09-006.

Both C.92-09-006 and C.92-09-025 were submitted upon the filing of reply briefs on August 27, 1993. (8 R.T. 695.)

E. Westcom's Request For Compensation

On June 3, 1993, Westcom filed its "Request for Findings of Eligibility for Compensation" (initial request). On June 17, 1993, Westcom filed its "Amended Request for Findings of Eligibility for Compensation" (first amended request). On February 16, 1995, Westcom filed its "Amended Request for Findings of Eligibility for Compensation (Notice of Intent to Claim Compensation)" (second amended request).

Westcom's initial request stated at page 2 that it believed it was eligible for compensation from one of three following sources:

"(1) a common fund of reparations or other sums that may be generated as a result of this complaint; (2) the Advocate's Trust Fund created by CLAM/TURN v. PUC, 25 Cal. 3d 891 (1979); or (3) the provisions for intervenor fees in Article 18.7 of the Commission's Rules of Practice and Procedure."

Citizens filed an opposition to the initial request and first amended request on June 28, 1993, and to the second amended request on March 13, 1995.

In an ALJ ruling dated March 20, 1995, the ALJ stated in pertinent part:

"Under PU Code Section 1804(a)(1), a customer who seeks an award under the statutory scheme, `shall, within 30 days after the prehearing conference is held, file and serve on all parties to the proceeding a notice of intent to claim compensation.' The prehearing conference was held on January 22, 1993, and not on June 1, 1993 as the revised footnote to Westcom's second amended request would lead one to believe. June 1, 1993 was the first day of evidentiary hearings into C.92-09-006 and C.92-09-025. (See Vol. 4 R.T. p. 152.) Even if Westcom's submission of its second amended request was allowed to relate back to June 3, 1993, the date when Westcom's initial request was filed, the notice of intent to claim compensation under Article 18.8 would still have been late because the initial request was filed five months after the date of the prehearing conference."

The ruling also stated that the issue of Westcom's eligibility for compensation under all three theories, and its claim of significant financial hardship, would be addressed in a decision. The compensation issues are discussed later in this decision.

F. Draft Decision and Comments

This proceeding was filed before January 1, 1998, and is not subject to the provisions of Article 2.5 of the Commission's Rules of Practice and Procedure (Rules). The draft decision of the ALJ was mailed to the parties on August 8, 2000. In accordance with § 311(g)(1) and Rules 77.2, 77.3, 77.4, and 77.5, parties may comment on the draft decision.⁸

³ In footnote 6 of D.92-08-028, the Commission noted that Westcom could also deposit all of the outstanding disputed amounts, as well as any future disputed amounts, with the Commission. Westcom did not deposit any additional funds with the Commission in connection with C.92-03-049. ⁴ At the hearing, Sunde clarified that the amended complaint no longer contained allegations regarding FGB circuit problems in Susanville. (2 R.T. pp. 56-57.) ⁵ CACD's Telecommunications Branch was subsequently reorganized as the Telecommunications Division. ⁶ In addition, in an ALJ ruling dated July 31, 1992, Westcom's petition of July 3, 1992 to set aside the evidentiary hearing and reopen discovery in C.92-03-049 was denied. The issues raised in Westcom's motion were subsequently incorporated into C.92-09-006 and its amended complaints. ⁷ A description of Citizens' allegations are contained in the section entitled "Citizens Complaint In C.92-09-025." ⁸ On or about January 17, 2000, Westcom submitted an "Emergency Motion To Full Commission to Issue a Decision." It does not appear that this motion was filed with the Commission. (See Rule 3.) Since a decision has been issued, Westcom's motion is now moot.