III. C.92-03-049
A. Westcom's Allegations
Westcom's amended complaint alleges a series of misdeeds by Citizens. These allegations can be categorized into nine issues. First, Westcom alleges that Citizens failed to properly route 916 calls to Westcom during the changeover to equal access. Westcom alleges that even though the 916 calls were not routed properly, Citizens still charged Westcom switched access costs for these call attempts. In addition, Westcom contends:
"Westcom received hundreds of customer complaints due to this problem and suffered serious financial losses as well. Westcom was forced to absorb the cost of these hundreds of calls placed to Westcom toll free 800 lines; and Westcom lost many thousands of dollars of lost revenues because 916 calls were not routed to us properly by Citizens." (Amended Complaint, p. 2.)
Westcom seeks reparations in the amount of $15,000 for the lost revenue associated with the improper routing of the 916 calls. In addition, Westcom seeks compensation from Citizens to reimburse Westcom for the 800 calls that it allegedly received.
Westcom's second allegation involves alleged overcharges by Citizens for FGB services in the amount of $16,585 up through February 1992, and for March and April of 1992 in the amount of $5,900 and $6,500, respectively. Westcom alleges that the overcharges were the result of back billing by Citizens beyond the time limit permitted by the tariffs and Commission decision, and because of improper recording in Citizens' switches.
Westcom's third allegation concern alleged overcharges by Citizens for FGD services in the amount of $8,075.71 through February 1992, and for March and April of 1992 in an amount to be determined.9 Westcom alleges that these overcharges were caused by Citizens back billing beyond the time allowed in the tariffs and Commission decision.
The fourth allegation in the amended complaint is that Citizens has recently started to bill Westcom for terminating traffic on its FGD trunks to Citizens. Westcom alleges that it informed Citizens that Westcom did not terminate any traffic on Citizens' FGD trunks.
Westcom's fifth allegation is that Citizens charges Westcom for Pacific Bell (PacBell) rate elements which are not contained in Citizens' tariffs. Westcom seeks a credit of all such charges.
Westcom's sixth allegation concerns its FGD trunks in Elk Grove on Lines 96, 97, and 100. Westcom advised Citizens' central office personnel that Westcom did not receive any traffic on these lines, and that Citizens has not solved this problem. Westcom seeks compensation of $5,000 for the customer complaints and lost customer goodwill associated with Citizens' alleged failure to route calls over these trunks.
The seventh allegation concerns $1,417.19 in late charges that Citizens billed Westcom.10 Westcom seeks a credit for this amount because of Citizens' alleged failure to respond to the disputed billings.
Westcom's eighth allegation is that Citizens has billed Westcom $752 for installation charges that exceed the back billing limitation specified in the tariffs and in Commission decisions. Westcom seeks a credit for this amount.
The ninth allegation is that Citizens has improperly billed Westcom the sum of $294.41 for approximately 10 months, for a total overcharge of approximately $2,754.52, for circuits to Keddie. Westcom alleges that it did not order circuits to Keddie, but simply requested that Citizens open Keddie to Westcom's 950-1459 access number. Westcom seeks a credit for this overcharge.
At the hearing, Westcom contends that it is entitled to a total credit of $41,983. (See 1 R.T. 15, 68-69, 117, 136; Ex. 6, p. 1; Ex. 12, p. 1; Ex. 19; Ex. 20, p. 1.) The credits are based upon the following:
1. FGB through April 1992 $28,985.00 11
2. FGD through March 1992 8,075.00 12
3. Keddie Overcharge 2,754.00 13
4. Interest 1,417.00 14
5. Back billing for installation charges 752.00 15
In addition to the above credit, Westcom seeks reparations for calls made to Westcom over its 800 lines as a result of the alleged failure by Citizens to properly route 916 calls during the changeover to equal access.
Westcom's amended complaint seeks injunctive relief to prevent Citizens from disconnecting Westcom from the access services that Citizens provides to Westcom. The threatened disconnection arose as a result over a billing dispute concerning the access services billed to Westcom by Citizens.
At the time the hearing concluded in C.92-03-049, Citizens claimed that Westcom owed a total of $47,751.05. Of this total, Citizens states that $35,168.12 is owed by Westcom for FGB services and $12,582.93 is owed for FGD services. (Exhibits 30 and 32.) At the second hearing into C.92-09-006 and C.92-09-025,
Exhibit 72 was received into evidence.16 That exhibit shows a total outstanding balance of $73,525.84. Of this total balance, $59,325.33 is for FGB service, and $14,200.51 is for FGD service. The increase in the total is due to the usage billed in June through August 1992 for FGB service, and the usage billed in April through August 1992 for FGD service.
B. Description of the Access Services
Westcom's complaint involves the billings that it received from Citizens in connection with the FGB and FGD switched access services that Citizens provided to Westcom. At the time C.92-03-049 was filed, Westcom subscribed to FGB and FGD services from Citizens' Susanville office, and also subscribed to FGB and FGD services from Citizens' Elk Grove office.
During the time period covered by Westcom's complaint, Citizens had adopted and concurred in most of the provisions contained in PacBell's access service tariff No. 175-T for its California access services. (See Citizens Tariff No. 4973-T, Schedule No. B-2.)17 At the time the complaint was filed, Citizens' subscribed to the National Exchange Carriers Association's (NECA) tariff provisions for interstate access services that were filed with FCC. (See 2 R.T. 149-151, 155-156; Exhibits 28, 34 and 38.)
Switched access service provides the "ability to originate calls from an End User's premises to a customer's designated premises, and to terminate calls from a customer's designated premises to an End User's premises in the LATA where it is provided." (PacBell 175-T Tariff, § 6.1.) For purposes of the 175-T tariff, the customer is defined as follows:
"The term `Customer(s)' denotes any individual, partnership, association, joint-stock company, trust corporation, or governmental entity or any other entity which subscribes to the services offered under this tariff, including both interexchange carriers ... and end users." (PacBell 175-T Tariff, § 2.6.)
An end user is defined in the 175-T tariff as follows:
"The term `End User' denotes any customer that purchases intrastate telecommunications for its own use and not for the purposes of resale or sharing, and is not a carrier, except that a carrier shall be deemed to be an `end user' to the extent that such carrier uses a telecommunications service for administrative purposes, without making such service available to others, directly or indirectly." (PacBell 175-T Tariff, § 2.6.)
FGB access service is a trunk side connection which provides an IEC with access to the LEC's end office switch for originating and terminating communications. Under FGB, the end user dials 950-XXXX in order to access the IEC. The XXXX are the access code digits which connect the end user to the FGB service of the IEC of the end user's choice. The end user then enters an authorization code and the IEC's switch then produces a dial tone, which allows the end user to dial the telephone number the end user is calling, i.e., the called number. FGB service was the normal method of providing end use customers with access to IECs prior to equal access. (Ex. 6, Tab 5, p. 7-2; 3 R.T. 106.)
FGD access service provides trunk side access to the LEC's end office switches. FGD is used for providing end use customers with equal access to their IECs, i.e., the end use customer is presubscribed to a particular IEC. (Ex. 6, Tab 5, p. 7-3; 3 R.T. 86, 89-90.)
C. Feature Group B Services
1. FGB Alleged Overcharges
a. Introduction
In resolving this dispute, the Commission needs to make clear the extent of the Commission's power to adjudicate some of the billing discrepancies raised in this proceeding. There is a need to address this jurisdictional issue because the FGB access services provided to Westcom by Citizens were billed entirely at the interstate tariff rate on file with the FCC. (See Exhibits 27 and 36.) As discussed below, the FCC tariff provisions are beyond this Commission's jurisdiction to adjudicate.
This jurisdictional issue was first raised by Citizens when it filed its motion to strike the FGB billings from Westcom's complaint. As we indicated in D.92-08-028, the assigned ALJ properly denied Citizen's motion to strike the portions of Westcom's amended complaint. The reason for allowing those allegations to be litigated at the hearing was because Westcom had alleged that Citizens had notice that Westcom was using the FGB services for intrastate purposes as well, and should have been applying PacBell rate elements. Until evidence was presented at the hearing on those issues, it was premature to strike those allegations from the complaint.
b. Position of Westcom
Westcom argues that the Commission has jurisdiction and regulatory authority over the FGB services that Citizens provided to Westcom because the FGB trunks carried intrastate traffic. In addition, Westcom contends that it has paid taxes on its intrastate gross revenues to the Commission.
Westcom further argues that the submission of an updated PIU factor "is only necessary for the purpose of allocating costs and charges between interstate and intrastate jurisdiction." (Westcom Opening Brief, p. 2.) Westcom contends that Citizens never formally requested an updated PIU factor from Westcom. Westcom also argues that Citizens did not request an audit of Westcom's PIU factor as allowed by tariff.
Westcom also contends that the rates charged by Citizens for its services under the intrastate and interstate tariffs are nearly identical, as shown in Exhibit 29, and thus there was no motivation on Westcom's part not to supply an updated PIU factor. Westcom also argues that it was to Citizens' advantage to bill using the interstate tariff because the assumed 8,700 minutes of use was a higher number than the assumed 4,076 minutes of use permitted by the intrastate tariff. As a result of using the 100% PIU, Westcom contends that Citizens gained additional revenue.
Westcom also argues that the access service requests (ASRs) that it submitted were for new service, and that Westcom could not predict intrastate and interstate usage prior to the installation of the new service. Westcom also contends that Citizens refused to request a start up audit as provided for in Citizens' tariff.
Westcom also asserts that Citizens had constructive notice of Westcom's intrastate traffic through the FGD billings in mid 1991 which showed intrastate usage. (2 R.T. 33.) Westcom argues that "If FGD trunks carry intrastate traffic, it only makes common sense that FGB do also." (Westcom Opening Brief, p. 4.) Westcom asserts that Citizens had actual notice of intrastate traffic usage on the FGB circuits when Westcom mailed a letter to Carl Swanson of Citizens on May 14, 1991. (2 R.T. 34, 57-58, Exhibit 5, § 11.)
Westcom also contends that Citizens subjected it to abusive and discriminatory practices on an intrastate and interstate basis. Westcom asserts that the Commission has the authority to investigate the alleged interstate discriminatory practices of Citizens pursuant to § 703.
c. Position of Citizens
Citizens argues in its opening brief that the allegations concerning the FGB services are outside the Commission's jurisdiction because those services were billed under the interstate tariff. Citizens asserts that its FGB service did not allow it to determine the jurisdictional nature of the traffic. Instead, Citizens had to rely on Westcom's ASRs, which reported Westcom's interstate usage as 100%. Citizens also claims that the obligation was on Westcom, as the IEC customer of the FGB access services, to notify the LEC of the correct PIU. Since the FGB bills are based on the interstate tariffed rate, Citizens argues that the FGB billing disputes must be adjudicated by the FCC rather than by this Commission.
d. Position of Citizens
In resolving this jurisdictional issue, we point out that this Commission has complete control over the rates charged by public utilities operating within the state. (Cal. Const., art. XII, § 3; Pub. Util. Code § 216.) However, the issue that needs to be resolved is whether the FCC tariff or the state tariff applies to the rates charged by Citizens. If the FCC tariff applies, then the Commission has no jurisdiction to adjudicate the matter.
Both the interstate and intrastate access tariffs provide that when a customer orders FGB switched access service, the customer is required to submit a PIU factor to the LEC.18 The PIU factor is used to determine the percentage of traffic that is to be billed under the interstate and intrastate tariffs. The NECA FCC tariff provides:
"When a customer orders ... Feature Group B Switched Access Service the customer shall, in its order, state the projected interstate percentage for interstate usage for each ... Feature Group B Switched Access Service group ordered." (NECA FCC Tariff No. 5, § 2.3.11(C)(2)(b).)
The PacBell tariff provides in part:
"When a customer orders ... Feature Group B ... Switched Access Service the customer shall provide a Percent Interstate Usage (PIU) factor to the Utility as described in (A)(6) following. The PIU will be used by the Utility to appropriately apportion the use and/or charges between intrastate and interstate." (PacBell 175-T, § 2.3.14(A)(1).)
The "ASR Preparation Guide" instructs the IECs on how to fill out an access service request (ASR). At page 1-41 of the guide, the PIU field is described as:
"Identifies the expected Interstate usage for the access service on this request. Both Interstate and Intrastate may be ordered on a single Access Service Request by specifying the applicable % of Interstate usage."
The ASR Preparation Guide also states that a valid percentage entry for FGB is 000 to 100% for the line/trunk group. (Exhibit 6, Tab 5, p. 1-41.)
At the hearing, the Citizens' witnesses testified that for FGB service, it was unable to detect whether the final called number dialed by the end-user was an interstate or intrastate call. That is because FGB service allows the originating caller to place a call which terminated at the IEC's 950-XXXX number. The witnesses for Citizens claim that once the originating caller accessed the IEC's switch after having dialed 950-XXXX, Citizens' switch did not have the ability to detect what the final called number was. (2 R.T. 186; 3 R.T. 18, 86-89.)
Both the NECA and PacBell tariffs provide that if measured access minutes are not used, the PIU factor reported on the jurisdictional report shall be the percentage that the LEC uses for interstate and intrastate billing purposes. That PIU will be used until the IEC reports a different percentage. (NECA FCC Tariff No. 5, § 2.3.11(C)(1); PacBell 175-T, § 2.3.14(A)(5).) Since Westcom submitted ASRs that reflected 100% interstate usage for FGB service, and because Citizens could not detect the amount of interstate and intrastate traffic on FGB service, Citizens billed Westcom under its interstate tariff. (3 R.T. 139-140; Ex. 27.)
Regarding Westcom's argument that the FGD billings provided Citizens with constructive and actual notice that the FGB trunks would also carry intrastate traffic, the question raised in our minds is why Westcom consistently listed 100% interstate use on the ASRs that it submitted to Citizens for FGB service? Westcom's actual behavior was contrary to its argument in its opening brief that it had "every motivation to declare low interstate usage/high intrastate use" and that "There is no motivation for Westcom to withhold an updated PIU." (Westcom Opening Brief, p. 15.) If one is to accept Westcom's argument that it was in Westcom's best interest to report low interstate usage and a high intrastate use, we must question why Westcom did not do so.
Certainly Westcom knew of its intrastate usage but failed to promptly notify Citizens of this fact. As testified to by Westcom's President, Westcom's percentage of intrastate use for FGB was approximately 70 to 80% which mirrored Westcom's intrastate traffic usage for FGD. (1 R.T. 55; 2 R.T. 34-35; Exhibit 5, § 11.) Sunde also testified that if FGD trunks carry intrastate traffic, one would expect the FGB trunks to do likewise. (2 R.T. 57, 60.) During 1991, Westcom received monthly FGB bills from Citizens showing that the billing was done on a 100% interstate basis. (See Exhibit 36.) However, it does not appear that Westcom complained to Citizens about the FGB bills being billed entirely at the interstate tariff rate. Despite Westcom's own knowledge of its intrastate usage on FGB, in the May 14, 1991 letter to Citizens, Westcom appeared to be unwilling to give Citizens an accurate estimate of its current PIU. (Exhibit 5, § 11; See 1 R.T. 11; 2 R.T. 57-62.) The May 14, 1991 letter states:
"As we discussed on the telephone yesterday although Westcom's switch does not have the ability of automatically calculating our PIU, we could, with some effort, manually calculate said PIU. It would be necessary for us to add the total call records for customers in Susanville and add the individual call records for interstate calls and then subtract this total from the total of all call records.
"I cannot answer your question as to how long this process would take since we have not been required to do this before.
"We also cannot give you an accurate estimate of current PIU. Some of our other California locations have intrastate usage as high as 70%-80%; some are as low as 30%-40%.
"Please call me when you decide what will be acceptable to Citizens." (Exhibit 5, § 11.)
Furthermore, Westcom's argument that it was up to Citizens to request an updated PIU factor from Citizens is contrary to Westcom's argument that it had every incentive to report a low percentage of interstate use. If Westcom wanted to report a low percentage of interstate use, Westcom was free to do so. Westcom did not have to wait for Citizens to make a request of Westcom to submit an updated PIU. Under both the PacBell 175-T tariff and NECA tariff, it is up to the IEC to provide an updated PIU. (See 1 R.T. 54; 2 R.T. 27-28.) Section 2.3.14(A)(6) of the 175-T tariff provides that "The customer shall provide the PIU in writing to the Utility at least once every six months." The NECA tariff provides that the IEC is to report the percentage of interstate use, and that such report will be used for billing purposes until the IEC reports a different projected interstate percentage. The NECA tariff also provides that the IEC is to update the interstate and intrastate jurisdictional report on a quarterly basis. If these reports are not supplied, the IEC "will assume the percentages to be the same as those provided in the last quarterly report." In "those cases in which a quarterly report has never been received from the customer, the [LEC] will assume the percentages to be the same as those provided in the order for service...." (NECA FCC No. 5, § 2.3.11(C)(1).) As Citizens witness Innes stated, "Citizens has no requirement to request PIU's." (2 R.T. 192.)
Westcom also asserts that Citizens could have requested an audit of the PIUs submitted by Westcom, but failed to do so even after Citizens had received notice of Westcom's intrastate traffic. This argument of Westcom would shift the responsibility to Citizens to ferret out those access customers who are not reporting the correct PIU. The PacBell tariff provides that if the LEC disputes the reasonableness of the PIU, the LEC may audit the PIU in question. (PacBell 175-T, § 2.3.14(B).) The NECA tariff provides that:
"[I]f a billing dispute arises concerning the projected interstate percentage, the [LEC] will ask the customer to provide the data the customer uses to determine the projected interstate percentage."
In this case, Citizens did not dispute the PIU reported by Westcom. Instead, it was Westcom who sought to have the FGB billing reevaluated using the intrastate rate elements. Since the tariff placed the responsibility on Westcom to notify the LEC of any changes in the PIU, we are not convinced by Westcom's argument that Citizens should have audited the PIU that Westcom reported to Citizens.
Westcom also argues in its opening brief at page 16 that Citizens had the ability to measure FGB terminating traffic, and that Westcom had been assured by Carl Swanson of Citizens and in a letter from Swanson dated June 9, 1989 that Citizens would measure FGB service. (Ex. 4, pp. 25-26.) This letter was responding to Westcom's request for FGB service from the Susanville tandem.
The pages of Exhibit 4 that Westcom seeks to rely on were part of the exhibits attached to a complaint (C.89-08-035) that Westcom filed against Citizens in 1989, but which was subsequently settled. (See D.91-09-018.) The ALJ took official notice of the previously filed complaint, but did not admit Tab 2 of Exhibit 4 into evidence. The parties were permitted, however, to argue in their briefs how the 1989 complaint related to the present complaint. (See 1 R.T. 39-40.)19 Citizens stated in the fourth paragraph of that June 9, 1989 letter that: "We will bill Assumed Minutes of Use until the software is changed out sometime in the future in the Susanville Tandem. (Ex. 4, Tab 2, p. 25.) There is nothing in this letter to suggest that Citizens had the ability in 1989 to actually measure FGB terminating traffic.
Swanson was not called as a witness by Westcom or Citizens at the hearing in C.92-03-049. Swanson was deposed by Westcom in preparation for the hearings in C.92-09-006 and C.92-09-025. However, Sunde did not ask Swanson in the deposition whether Swanson had indeed assured Westcom that it would provide measured service for FGB terminating traffic. (See Ex. 111 in C.92-09-006 and C.92-09-025.)20
Gladys Foote testified in the second hearing that she told Sunde prior to the equal access cutover that Citizens would measure FGB terminating service, and that shortly after, Westcom ordered two way service. However, Foote's knowledge of Citizens' measuring capability came from others at Citizens, and she did not inform any other carriers of this alleged capability. (4 R.T. 159, 182-184.)
The testimony and documents that Westcom presented during the hearing do not demonstrate that Citizens had the capability in its switches to measure the FGB terminating usage of Westcom. Westcom has failed to meet its burden of proof with respect to this issue. As discussed later in this decision, the additional evidence presented by Westcom in the C.92-09-006 hearing does not change our evaluation of the evidence regarding the FGB measurement capability of Citizens' switch.
Westcom also raises the argument in its opening brief that Citizens is subverting the intent of the tariffs with regard to measurement capability. In essence, Westcom asserts that Citizens should not be allowed to continue to bill on an assumed minutes of use basis when Citizens can purchase the software necessary for FGB measuring capability, the cost of which can quickly be recovered. Such an argument, however, ignores both the NECA and PacBell tariff provisions which provide that when there is no measurement capability, assumed measurement can be used.
Westcom's argument that Citizens had actual and constructive notice of Westcom's intrastate usage is not very persuasive based on the discussion above. It was Westcom who failed to correctly report to Citizens the PIU for FGB services that it ordered, and to notify Citizens of any changes in its PIU. Both the NECA and the PacBell tariff provisions place the obligation on the IEC to submit an updated PIU factor. Westcom should not be able to take advantage of its own inaction to excuse itself from having to pay the FGB charges. As the California Appellate Court noted, "He who practices bad faith ought not to be permitted to invoke the doctrine of constructive or imputed notice to aid his wrongdoing." (Jackson v. Meinhardt (1929) 99 Cal.App. 283, 287.)
Westcom contends that the submission of an updated PIU is only necessary for the purpose of allocating costs and not for determining jurisdiction.21 However, when Westcom reported its PIU factor as 100%, that factor was used by Citizens, in accordance with both the state and FCC tariff provisions, to apply the FCC tariff elements to Westcom's bills. (2 R.T. 212; 3 R.T. 16.) Even Westcom acknowledged in an answer to Citizens' data request that:
"Intrastate tariffs should be applied to Westcom's FGB and FGD service based upon prorated intrastate usage." (Ex. 25.)
Since Westcom did not report any intrastate usage on the PIU form, the FCC tariff was used. As shown in Exhibits 27 and 31, all of the FGB bills from March 1991 through April 1992 were based entirely on the interstate tariff rate. (2 R.T. 209.)
We do not believe that we should interfere with how Citizens applied the interstate rate elements to the FGB bills. We reach this conclusion because Westcom consistently reported that its FGB usage was 100% interstate. Since Westcom never bothered to change the PIU factor for FGB service, we are not in any position to review the FGB billings and reapportion the bills that were billed using the interstate tariff.22 Nor are we in a position to interpret the NECA tariffs that were filed with the FCC in order to reach a decision on whether Citizens properly applied each of the interstate rate elements to the FGB billings.
Westcom also contends that the Commission has jurisdiction over these billing discrepancies because Citizens subjected Westcom to abusive and discriminatory practices. Westcom cites Section 703 in support of its argument.23
Prior to January 1, 2000, Section 703 states as follows:24
"The commission may investigate all existing or proposed interstate rates, fares, tolls, charges, and classifications, and all rules and practices in relation thereto, for or in relation to the transportation of persons or property or the transmission of messages for conversations, where any act in relation thereto takes place within this State and when they are, in the opinion of the commission, excessive or discriminatory or in violation of the Interstate Commerce Act, or any other act of Congress, or in conflict with the rulings, orders, or regulations of the Interstate Commerce Commission, the commission may apply for relief by petition or otherwise to the Interstate Commerce Commission or to any court of competent jurisdiction."
Westcom's contention that § 703 provides the Commission with jurisdiction over the FGB services is mistaken. First, § 703 provides that if the Commission finds that an interstate rate is excessive or discriminatory, the Commission can pursue relief before the Interstate Commerce Commission or in any court of competent jurisdiction. The code section does not give the Commission jurisdiction over the tariff provisions that have been filed with the FCC. Second, § 703 provides that the "commission may investigate" when the rates or charges are excessive or discriminatory. The Commission has not opened a separate investigation into Citizens' interstate access rates, nor has the Commission decided that Citizens' interstate rates are excessive or discriminatory. In addition, Westcom did not allege that the interstate FGB tariff was excessive or discriminatory.
Third, assuming that § 703 or § 453 applies, Westcom has not presented any evidence that Citizens subjected Westcom to abusive and discriminatory practices. As discussed above, Citizens merely applied the interstate tariff based on the PIU factor reported by Westcom, and as discussed later in this decision, Citizens utilized and applied the other tariff provisions permitted under its tariffs. Furthermore, the rates charged by Citizens for access services under its interstate tariff were not excessive when compared to the rate charged under its intrastate tariff. This conclusion is supported by the testimony of Citizen's witness, who testified that the intrastate access rates have pretty much equalized with the interstate access rates. (2 R.T. 154-156; Exhibit 29.)
Westcom contends that Citizens was able to earn more revenue because it was able to use the higher interstate assumed minutes of use tariff to bill. However, we do not find that Citizens' application of the interstate tariff was discriminatory since it was Westcom who reported a PIU factor of 100%. Based on the evidence presented, we cannot conclude that Citizen's interstate access rates were excessive or discriminatory. Nor was any evidence presented by Westcom to show that Citizen's interstate access tariff was in violation of or in conflict with any federal provisions. Thus, the Commission will not pursue the avenues for relief provided for in § 703.
We conclude that the alleged overcharge of Westcom by Citizens for FGB services billed at the interstate rate in the amount of $35,168.12 is an issue that this Commission has no jurisdiction over. (See Schell v. Southern California Edison Company (1988) 204 Cal.App.3d 1039, 1045.) Accordingly, this decision does not resolve any of the disputed FGB bills prior to June 1, 1992 since all of those charges were based on the interstate NECA tariff. Thus, there is no need for us to address the testimony regarding Citizens billing of its FGB terminating traffic on an assumed minutes of use basis, and how the timing differences may have accounted for the alleged discrepancies in the FGB bills.
2. FGB Keddie Charges
a. Position of Westcom
Westcom alleges that from September 1990 through June 1991, Citizens overcharged Westcom $2,754.52 for circuits to the Keddie wire center that it did not order and which Citizens did not install. Westcom alleges that it simply requested Citizens to "open" the Keddie exchange to allow Westcom's 950-1459 access number to pass on to Westcom. These alleged overcharges and Westcom's request to Citizens to open the Keddie wire center are reflected in Exhibit 20.
b. Position of Citizens
Citizens asserts that Westcom ordered access services into the Keddie wire center. The bills which Citizens rendered to Westcom assumed usage at this office in accordance with its applicable tariffs.
c. Discussion
Tab 1 of Exhibit 20 summarizes the bills that Westcom received from Citizens for FGB service from the Keddie wire center from September 1990 through June 1991. Pages 2 through 30 of Exhibit 20 clearly show that the switched access charges for the Keddie wire center pertain to FGB service, and that all of the charges were based on the interstate tariff charge for FGB service. For the reasons discussed earlier, since the $2,754.52 at issue is based on the interstate tariff, we lack jurisdiction to address those alleged overcharges.
Even though we have no jurisdiction over the Keddie charges, we briefly address Westcom's assertion that it only wanted to "open" Keddie to pass Westcom's 950 access number. In Westcom's letter of December 18, 1989 to Citizens, which is attached to page 32 of Exhibit 20, it stated:
"Your central office in Keddie (916-281) apparently is not yet programmed to pass our 950 number. Would you please address this and advise me when completed."
Citizens' responded to Westcom's letter in a letter dated December 21, 1989, which is attached to Exhibit 20 at page 35. That letter stated in pertinent part:
"This is in response to your letter of December 18, 1989, concerning Feature Group `B' (950) service from Keddie, California (916-281).
"The Access Facility route for Keddie is to Pacific Bell's Access Tandem at Chico, California (CHICCA0188T). To obtain Keddie Feature Group `B' service, it will be necessary to submit Access Service Requests (ASR) through the normal channels."
Westcom then submitted an ASR to open Keddie to the PacBell tandem in Chico on December 26, 1989, and another ASR for the same purpose on August 10, 1990. (1 R.T. 140-141.)25
Sunde claims that Westcom was not told, nor did it understand or even believe that it would be charged for circuits to open up a particular prefix to allow the 950 access number to pass. Instead, all that Westcom wanted to do was to connect Keddie to the Chico tandem. Sunde's understanding of the tariff was that this change might involve some transport charges, but he did not expect to be billed as though he had three complete trunks. Sunde testified that Westcom had one customer in Keddie who wanted access to Westcom's services. Westcom asserts that it ended up being billed $298 a month to gain access to a customer that only spent $120 a month. (1 R.T. 137-138, 141.) Sunde admitted that he was only vaguely familiar with how the tariffs are applied to access services when they are jointly provided by PacBell and Citizens. (2 R.T. 43.)
The above correspondence and the ASRs suggest that Westcom ordered FGB access service from the Keddie wire center, and did not merely ask Citizens to "open" the Keddie wire center to Westcom's 950 access number. Westcom's actions were contrary to what one would have expected of someone who did not order FGB access service. Instead of objecting to the Keddie bill when Citizens first billed Westcom for those charges in September 1990, Westcom waited to include those charges as part of its complaint that it filed on March 30, 1992. (1 R.T. 137.)
3. Back Billing Charges
a. Position of Westcom
As part of its amended complaint and during the hearing, Westcom alleged that some of the disputed amounts may have been attributable to back billing on the part of Citizens. 26 If some of the disputed amounts were actually back billed, Westcom contends that Citizens back billed beyond the time limit permitted by Commission decision, and failed to properly identify the back billed amounts. (1 R.T. 45-52, 57-58.)
b. Position of Citizens
During the hearing, Citizens' witness, Ronald Ottaway, testified that Citizens had only back billed Westcom for late payment charges and for changes as a result of an access service request that Westcom submitted to Citizens. (3 R.T. 48-49, 67; Exhibits 46 and 47.)
c. Discussion
Westcom did not present any evidence which demonstrates that part of the disputed access service amounts were due to back billing. The only evidence of any back billed amounts was testified to by Citizens' witness. That evidence shows that only a small fraction of the amounts in dispute involved back billed amounts. In response to some questions by the ALJ of Citizens' witness Ottaway, he was asked to identify whether any back billing had occurred in the monthly bills that were attached to Exhibits 36 and 37. (See 3 R.T. 47-49.) Ottaway testified that any back billed amount would show up in the non-recurring charge portion of the monthly bill. (2 R.T. 209, 212; 3 R.T. 46.) At the request of the ALJ, Citizens provided Exhibits 46 and 47 to show what back billings were issued. (3 R.T. 49.) Westcom did not raise any objections to either of these two exhibits. (See 3 R.T. 142.)
Exhibit 46 reveals that for FGD, late charges totaling $622.94 were back billed for the months of February, March and April of 1992. A "trunk install" fee of $648 and a "service order" fee of $104 were also backbilled for the month of March 1992.27 In footnote (a) of that exhibit, it states: "Back billed trunk installation, amount was accurate but should have appeared on FGB bill." In the non-recurring charges section of the bill for April 10, 1992, which is found in Exhibit 37, it appears that the service order fee of $104 should have also appeared on the FGB bill since it appears the service order fee was related to the trunk install fee.
Exhibit 47 shows that for FGB, a total of $1,120.75 in late charges were back billed for the months of February, March and April of 1992.28
A review of the other bills in Exhibits 36 and 37 do not show any other back billed amounts. Thus, Westcom's argument that the access service charges may have been back billed has no basis in fact.
With respect to Westcom's argument that the back billed amounts exceeded the limitation period for back billing, we do not have to address that argument for the FGB late charges ($1,120.75), the trunk installation fee ($648), and the service order fee($104). That is because all of the back billed amounts identified by Citizens were for FGB services, for which Westcom reported an interstate usage of 100%.29
As for the FGD late charges which are shown on Exhibit 46, and which are itemized in Exhibit 37, the three bills in question show that the late charges were based on the interstate tariff provision. Footnote (b) of Exhibit 4630 also establishes that the late charges for FGD were based on the interstate tariff because Westcom had reported an interstate usage of 100%. Since the FGD late charges were based on the interstate tariff, we lack the authority to adjudicate those late charges as well.
Even if the FGD late charges were billed pursuant to the intrastate tariff provisions, Westcom's contention that the 90 day back billing limitation applies to access service billings is in error. The decision which Westcom relies upon, D.86-12-025, only established a 90-day back billing limitation for telephone subscribers, i.e., the end use telephone customer. (23 CPUC2d 24, at pp. 33, 35.) For the purposes of the intrastate access services tariff, the LEC's customer is the entity that ordered the access service from the LEC, which in most cases is the IEC.31 In D.88-09-061, the Commission declined to adopt a proposal which would have imposed a 90-day limit on the LEC to back bill its access service customer. (D.88-09-061, pp. 14-15; 29 CPUC2d 404.) Thus, contrary to Westcom's assertion, intrastate back billing by Citizens was not limited to 90 days.
D. Equal Access FGD 916 Calls
1. Position of Westcom
Westcom alleges that at the time of the equal access cutover, Citizens failed to properly route to Westcom's switch the 916 calls that Westcom's customers made on the FGD trunks. This allegedly resulted in the failure of the calls in Westcom's switch.32 Westcom requests $15,000 for the revenues it allegedly lost as a result of those lost calls. Westcom also seeks to recover the cost of the calls made over its 800 line as a result of Westcom's callers allegedly complaining to Westcom about Citizens' failure to properly route the 916 calls. Westcom also alleges that "due to the problems of initial connection and the problem of 916 calls not completing properly," that there should be an additional credit of $400 for these problems. Westcom also claims that it was billed by Citizens for all of the failed call attempts that its customers attempted to make. (See Exhibit 6, pp. 3-4; 1 R.T. 73-75.)
In support of Westcom's allegations, Westcom relies on the Equal Access Translations Questionnaire (Translations Questionnaire) that it filled out prior to equal access, certain statements that Citizens provided prior to the hearing and at the hearing, and certain testing which Westcom performed.
Westcom first asserts that the intrastate tariff provides that 1 + 7 or 1 + 10 digits are to be forwarded automatically to the IEC. (Ex. 6, Tab 6.) Prior to the equal access cutover, Citizens sent out a Translations Questionnaire to all of its access service customers. (See Exhibits 21 and 22; 1 R.T. 149-150; 3 R.T. 71.) Sunde testified that he received the Translations Questionnaire from Citizens, filled it out, and returned it to Citizens. (1 R.T. 149-154.) Westcom asserts that it informed Citizens in its ASR that it wanted to receive 1 + 7 and 1 + 10 calls. (1 R.T. 156.) Thus, if a Westcom customer in Citizen's service territory dialed an interLATA 916 call using 1 + 7 or 1 + 916 + 7, Westcom contends that "It was Citizens responsibility to include the 916 since that is what Westcom ordered via the Translations Questionnaire." (Westcom Opening Brief, p. 8; 1 R.T. 160.)
Westcom further argues that the Translations Questionnaire asked the customer to list any class of service that the customer wanted to restrict from accessing the customer's service. Westcom contends that if a call type was not listed as restricted, that the Translations Questionnaire specifically stated: "Assume all remaining Classes of Service are allowed." (Ex. 21, p. 17.) Westcom contends that the "Class of Service Routing" section of the Translations Questionnaire states that it is the policy of the LEC to route "(1) + 7/10 digit" calls to the IEC. (Ex. 21, p. 17.) Thus, Westcom contends that Citizens should have passed all 1 + 916 + 7 digit calls to Westcom.
Contrary to Citizens' statement that it was not routing interLATA calls to any carrier with the 916 prefix attached, Westcom contends that certain tests conducted by Westcom revealed that Citizens did send the 916 prefix to Westcom.
2. Position of Citizens
Citizens takes the position that Westcom was not familiar with the mandatory California dialing patterns, and that Westcom required a non-standard dialing arrangement at the time of the equal access conversion but failed to timely advise Citizens of its needs. Citizens also asserts that whatever string of digits that Westcom's customer dialed was relayed to Westcom's switch without any stripping.
Citizens contends that the dialing party who dials an interLATA call within the 916 area code33 must dial 1 + 7. If the dialing party dials a call outside the 916 area code, Citizens contends that the mandatory dialing plan is to dial 1 + the non-916 area code + the 7-digit called number. Citizens contends that these two dialing plans are part of the Standard California Dialing Plan and that Westcom should have been familiar with this protocol as set forth in Exhibit 23.
When Citizens was told that interLATA 916 calls of Westcom's customers were failing, it took immediate steps to investigate the problem. Citizens attempted to configure its switch to automatically add the 916 prefix to a 7-digit call made by a Westcom customer. After Citizens consulted with its switch manufacturer, Citizens determined that this could not be done. Citizens then performed translations in its switch which allowed the 1 + 916 + 7 digits to be dialed by the end use customer and passed on to Westcom's switch.
Citizens also asserts that Westcom was to blame since Westcom failed to prepare its own equipment to properly route incoming calls. That is, Westcom's own switch was unable to automatically recognize a 1 + 7 call as coming from a 916 customer of Westcom. At the request of Westcom, Westcom's switch software vendor was able to take corrective action to fix this problem.
Citizens also asserts that Westcom is not owed any reparations for the failed 916 area code customer calls. Had Westcom's customers dialed 1 + 916 + 7, Citizens contends that these call attempts would never have seized a Westcom trunk, and would not have accumulated access minutes of use. Instead, the call would have failed in Citizens' switch and would have been sent to a recording that the call could not be completed. Thus, no charges would have been billed. In addition, Citizens contends that no money is owed to Westcom for the 800 calls to Westcom because Westcom's 800 call detail shows that it did not receive hundreds of customer complaints as Westcom had alleged.
3. Discussion
a. Background
Prior to the equal access cutover, all of the IEC customers of Citizens were sent the Translations Questionnaire. A Translations Questionnaire was completed by Westcom and returned to Citizens. (3 R.T. 71-72) The equal access cutover occurred in Citizens' Susanville office on June 11, 1991, and the cutover of Citizens' Elk Grove office occurred on June 12, 1991. (3 R.T. 71; Ex. 6, p. 306.) As a result of the cutover, Westcom experienced problems with calls from its customers who dialed 1 + 7 and 1 + 916 + 7 calls.
Westcom assumed that because the Translations Questionnaire stated "Assume all remaining classes of service are allowed," that it would continue to receive all 1 + 7 calls and all 1 + 916 + 7 calls made by its customers in Citizens' service territory. (1 R.T. 154-156; Exhibit 21.)
When the equal access cutover took effect in Susanville and Elk Grove, if a Westcom customer in Citizens' service territory dialed 1 + 7 digits, the call was not completed as an interLATA intraHNPA call. If the customer dialed 1 + 916 + 7, the call never reached Westcom's switch. Instead, this call went to a Citizens recording which would have either said that the call could not be processed or that the 916 need not be dialed. Sunde testified that these dialing problems lasted at least two or three days, but probably less than 10 days, before Westcom's Susanville and Elk Grove customers could terminate their calls to other exchanges in the 916 area code. (2 R.T. 10) We first address the 1 +7 digit call problem.
b. 1 + 7-Digit Call Problem
When the 1 + 7 problem first arose, Westcom contacted Citizens in an attempt to have Citizens include the 916 automatically into the 1 + 7 call stream. According to the testimony of Citizens' witnesses, the automatic inclusion of the area code to the 1 + 7 call could not be done to Citizens' switches, and Citizens informed Westcom of this. (3 R.T. 72-73; Exhibit 6, p. 307.) In order to fix this problem, Westcom had to contact its switch provider. According to Sunde, the 1 + 7 problem was remedied by modifying Westcom's switch to include the 916 in any 1 + 7 call that it received from a Westcom customer in Citizens' service territory, and to include the area code for Nevada, 702, in any 1 + 7 call that it received from a Westcom customer in Nevada. (2 R.T. 8-9, 75-76, 81.) After this software modification took place, Westcom did not experience any further problems with a 1 + 7 call. (1 R.T. 75.)
Citizens points out that at the time of the equal access cutover, and according to Exhibit 23, the mandatory California dialing pattern for an interLATA intraHNPA call was to dial 1 + 7 digits. Citizens contends that Westcom's switch was not configured correctly to recognize and process the 1 + 7 call as an interLATA intraHNPA call. (Exhibit 6, p. 305; 2 R.T. 160; 3 R.T. 73, 77-79, 81.)
According to the testimony of the witnesses for Citizens, Citizens passed on to Westcom the 1 + 7 that a Westcom customer dialed from Citizens' service territory. (1 R.T. 75; 3 R.T. 77-78.) Westcom did not ask Citizens to block 1 + 7 calls on the Translations Questionnaire. (1 R.T. 155.) According to Sunde's testimony, Westcom appears to have received the 1 + 7 from Citizens. (2 R.T. 8, 14.) At the time of the equal access cutover, Westcom's switch was not set up to translate, i.e., recognize, the 1 + 7 as an interLATA, intraHNPA call. (1 R.T. 75-76; 2 R.T. 11; 3 R.T. 78, 84, 107; Exhibit 6, p. 305.) However, after Westcom modified its switch to "automatically add" the 916 into any 1 + 7 call dialed from Citizens service territory, the call was able to connect through Westcom's switch. (1 R.T. 75, 159; 2 R.T. 9; 3 R.T. 79, 93.) Based on Sunde's testimony, Westcom appears to have experienced the same 1 + 7 problem with its Nevada customers as well. (2 R.T. 9.) All of the evidence presented shows that the problem with the 1 + 7-digit calling was in Westcom's switch rather than Citizens' switch.
Westcom also appears to argue that because its Translations Questionnaire wanted 1 + 7 and 1 + 10 dialing to pass through to Westcom's switch, that Citizens should have added the 916 to a 1 + 7 call. (See 2 R.T. 7-8; 3 R.T. 77-79, 85, 93.) Such an argument must fail. If Westcom's customer in Citizens' service territory only dialed 1 + 7 to access Westcom's switch, there was no obligation for Citizens to include the 916 before the seven digit stream because Westcom's customer did not dial the 916 as part of the customer's dialing stream. The PacBell 175-T tariff does not state that the LEC is to add the area code to a 1 + 7 call. Citizens was only obligated to pass on the 1 + 7 that the customer dialed, which appears to be what Citizens did. After learning of Westcom's inability to process the 1 + 7 at the time of the equal access cutover, Citizens contacted Northern Telecom to determine if Citizens could prefix the 916 into a 1 + 7 call. Citizens was informed that it could not do this with the type of trunk group that Citizens had. (3 R.T. 73.)
c. 1 + 916 + 7-Digit Call Problem
We next turn to the 1 + 916 + 7-digit call problem.34 Westcom asserts that Citizens stripped the 916 off of the dialing stream that Westcom's customers called. Westcom argues that since it did not seek to block 1 + 10 calling on the Translations Questionnaire that it submitted to Citizens, that according to PacBell's 175-T tariff, Citizens should have passed all 1 + 10 calls to Westcom.
In order to resolve this issue, we must take a look at the applicable tariff and the mandatory dialing procedures which Citizens contends that industry participants should have been familiar with. The California tariff provision regarding FGD service states in pertinent part:
"Where no access code is required, the number dialed by the customer's end user shall be a seven or ten-digit number for calls in the North American Numbering Plan (NANP)." (PacBell 175-T Tariff, § 6.2.4 (A)(6); See Ex. 6, Tab 6.)
Donald Innes, a witness for Citizens, testified that at the time of the equal access cutover, that the industry standard was to dial 1 + 7 when a call is made within the NPA, i.e., the HNPA. In order to dial a FNPA number, the mandatory standard is to dial 1 + 10.35 Innes testified that Exhibit 23, which is entitled "Pacific Bell Current California Dialing Patterns," shows the standard dialing patterns in California. (2 R.T. 160-161, 167; 3 R.T. 77, 79, 81; Ex. 40.)
According to Marr's testimony, the dialing patterns are governed by the regional Bell operating companies (RBOCs). The RBOCs have control over the assignment of the dialing plan within their respective LATAs. (3 R.T. 76.) The calling pattern for the 916 NPA is shown in Exhibit 23 under the column where the 916 NPA appears. (3 R.T. 76-77.) Marr testified that this was the standard numbering plan used throughout the nation until a few years ago, at which time some areas started to implement ten digit dialing on a permissive basis. (3 R.T. 131.)
Innes testified that the other companies who returned the Translations Questionnaire apparently understood the mandatory dialing patterns because none of the other companies encountered call problems. Innes also stated that anyone familiar with the practices in the industry should have understood that Section III. 1.A. of Exhibit 21, the Translations Questionnaire, referred to the HNPA and FNPA relationship. (2 R.T. 164, 167.)
Sunde was handed a copy of Exhibit 23 during the hearing. He testified that he understood some of the notations and patterns listed on that exhibit, but had not seen the document before. He also acknowledged that Exhibit 23 contained a reference to 1 + 7 and the HNPA. (2 R.T. 5) Sunde testified that since he did not restrict 1 + 10 calls on the Translations Questionnaire, he assumed that such a dialing pattern would be passed on to Westcom's switch. His assumption was based on the statement in Exhibit 21 in Section III which reads: "Assume all remaining Classes of Service are allowed." Sunde testified that since he did not ask Citizens to block 1 + 7 or 1 + 10 calls, he assumed that these types of calls would be allowed as provided for in the class of service routing shown at the top of page 17 of Exhibit 21. (1 R.T. 155-156.) He also testified that under the tariff, Citizens is supposed to send Westcom 1 + 7 or 1 + 10 digits. (1 R.T. 73-74.) 36
The PacBell tariff does not specify what the mandatory dialing pattern is for a FNPA call and a HNPA call. That is, the tariff is silent on the subject of how many digits must be dialed if a call is made outside the HNPA (i.e., a FNPA call), or if an interLATA intraHNPA call is dialed. Instead the tariff provides that "the number dialed by the customer's end user shall be a seven or ten-digit number...." The tariff language suggests that Westcom's customer should be able to dial 1 + 7 or 1 + 10 to access Westcom's switch.
No evidence was presented during the hearing by Westcom to suggest that the standard dialing patterns for California was different from what Citizens had described at the hearing, and which appears in Exhibit 23. However, it appears that this "industry" practice was not known to Westcom.
Although the witnesses for Citizens testified that persons in the telecommunications industry should have known about the mandatory dialing patterns, Westcom's two technical witnesses, Sunde and Benson, 37 were not familiar with the specifics of PacBell's dialing protocol. In addition, the mandatory dialing patterns shown in Exhibit 23 were never mailed to Westcom. (1 R.T. 161; 2 R.T. 113; 3 R.T. 131.) Despite Marr's testimony that the mandatory dialing patterns were included in Exhibit 21 "in context," the Translations Questionnaire, and Exhibit 22, the instructions for completing the Translations Questionnaire, the tariff did not specifically refer to the mandatory dialing pattern for HNPA and FNPA calls. (2 RT. 163; 3 R.T. 133-134.) Given the evidence that was presented, Westcom's assumption that it would receive all 1 + 10 calls at the time of the cutover was not unreasonable. Since the tariff provides that the calling party shall dial a seven-digit or 10-digit number for FGD service, we conclude that Citizens should have allowed its switch to pass on a 1 + 916 + 7 to Westcom's switch at the time the equal access cutover took effect.38
The next issue to address is whether Citizens stripped off the 916 digits from the 1 + 10 that Westcom's customers may have dialed. We do not believe that Citizens stripped off the 916 from a 1 + 10 call. This is evident from Innes' testimony that Citizens sent 1 + 10 to Westcom for any calls that went outside the 916 NPA. (2 R.T. 160.) Marr testified that at no point did Citizens ever remove the 916 digits from the call. 39 If the Westcom customer dialed 1 + 916 + 7, Citizens killed the call by sending it to a recorded announcement. (3 R.T. 80, 84.)
The reason why a 1 + 916 + 7 call was not sent to Westcom was because Citizens was following the dialing pattern set forth in Exhibit 23. Accordingly, when equal access took effect, all 1 + 916 + 7 calls were blocked and went to a recorded announcement. Depending on the telephone exchange and equipment used, the recording would say: "You cannot complete the call as dialed," or it would say that you don't need to dial the area code before the
digits. (2 R.T. 160; 3 R.T. 77, 79-81, 94; See 1 R.T. 160-161.) 40 Based on the Translations Questionnaire and industry practice at the time of the equal access cutover, Citizens expected Westcom to follow the 1 + 7 digit calling pattern for an interLATA intraHNPA call instead of dialing 1 + 916 + 7. (See 2 R.T. 164, 167.)
After Citizens became aware of Westcom's problem with the 1 + 916 + 7 dialing pattern, Citizens investigated the problem and determined that Westcom was not following the mandatory dialing pattern. Citizens developed a solution a "few days" 41 after the problem was discovered by making changes to its switch to "assist Westcom with their dialing practices." Citizens did so by allowing the permissive dialing of 1 + 916 + 7-digit calls to be sent to Westcom. (3 R.T. 79-80, 85; Ex. 6, p. 305; Ex. 40.) After the permissive dialing of 1 + 916 + 7 was allowed, this calling problem disappeared.
There is no evidence to suggest that Citizens stripped off the 916 from the 1 + 916 + 7 dialing pattern. After Westcom and Citizens reconfigured their respective switches after the cutover, a Westcom customer within Citizens' service territory could dial an interLATA intraHNPA call by dialing either 1 + 7 or 1 + 916 + 7.
d. Reparations
The next issue to address is whether Westcom should be entitled to any reparations for the problems resulting from the 1 + 7 and 1 + 916 + 7 calling problems. Reparation has been defined as a refund or adjustment of part or all of the utility charge for a service or a group of related services. (See 57 CPUC 519, 521; 72 CPUC 505, 509.)
Westcom's amended complaint at page 2 alleges that as a result of the 916 dialing problems:
"... Citizens charged Westcom for the switched access costs for these call attempts, even though the failure for these calls was due to failure by Citizens. Westcom received hundreds of customer complaints due to this problem and suffered serious financial losses as well. Westcom was forced to absorb the cost of these hundreds of calls placed to Westcom toll free 800 lines; and Westcom lost many thousands of dollars of lost revenues because 916 calls were not routed to us properly by Citizens."
We first note that Westcom's request for reparations is in the nature of a request for damages. In D.79124 (72 CPUC 505 at 509), the Commission stated: "Consequential damages ... is an amount of money sufficient to compensate an injured party for all the injury proximately caused by a tortious act, or to replace the value of performance of a breached obligation."
The loss of revenue that Westcom alleges is not related to a refund or adjustment of what Westcom was charged. Instead, Westcom seeks to recover damages that were allegedly caused by Citizens' failure to route the 916 calls.
According to Sunde's testimony, "thousands and thousands of 916 calls" failed as a result of the 916 dialing problems. (1 R.T. 74.) However, Sunde later acknowledged that only about 150 to 160 calls per day routed to the 916 area from Citizens to Westcom's FGD trunks. (2 R.T. 14-15.)
As discussed above, the 1 + 7 problem was the result of Westcom's failure to properly configure its switch at the time of the equal access cutover. Since the problem was the fault of Westcom, it should not be entitled to any compensation for any interLATA intraHNPA calls that failed from the time of the cutover until the 1 + 7 problem was remedied.
Regarding Westcom's request for reparations for calls that failed due to the 1 + 916 + 7 problem, Sunde testified that the failed 1 + 916 + 7 calls would spend time in Westcom's switch before being kicked out. Westcom did not present any other evidence which corroborates its allegations that Citizens charged Westcom for the 916 calls that failed. (See 1 R.T. 74-75.) To the contrary, Marr testified that the 1 + 916 + 7 calls were never sent to Westcom. Instead, those calls were stopped in Citizens' switch from completing, sent to a recording, and never accumulated access charges. (3 R.T. 79-80, 94; See Ex. 22, pp. 13-14.) Westcom has failed to prove that any portion of the $5028.37 in the June 1991 bill, when the cutover to equal access occurred, was attributable to failed 916 calls.
Of the 150 to 160 FGD calls per day, some of those calls were likely to have been 1 + 7 calls while others would have been 1 + 916 + 7 calls. If we assume that approximately half of the calls were 1 + 916 + 7 calls, and that the problem lasted for three days, there would have been about 240 (80 x 3 days) 1 + 916 + 7 calls that would have failed. Although Westcom alleges that "many thousands of dollars of lost revenues" resulted because the 916 calls were not routed properly, Westcom has not offered any proof that it lost thousands of dollars as a result of the 916 call problems that lasted from the time of equal access to a few days afterwards. In addition, the allegations concerning lost revenues are a request for damages, rather than reparations. Thus, we conclude that Westcom is not entitled to any reparations for lost revenues, and that the Commission does not have the jurisdiction to award damages.
Westcom's allegations that it had to pay for "hundreds of calls placed to Westcom toll free 800 lines" as a result of the failed 916 calls is not supported by the evidence. Westcom's 800 number bill for the month of June 1991 was admitted into evidence as Exhibit 24. That bill includes all of the days in June when toll free calls were made to Westcom, including the days before and after the cutover to equal access occurred. An examination of Exhibit 24 reveals that there were not "hundreds of calls" placed to Westcom's 800 lines after equal access took effect. The cutover in Citizens' Susanville and Elk Grove took place on June 11 and June 12, respectively. Only 34 calls were made to Westcom from Citizens' service territory over Westcom's 800 line from June 11 to June 17, and not the hundreds of calls that Westcom alleges occurred.42
After Sunde was cross-examined on Exhibit 24, he testified on redirect that it would "probably be more accurate to state that ... [the] hundreds of call ... did not all come in on the 800 number." Sunde then testified that there were a "total of several hundred telephone calls complaining about the type of problems people were experiencing" and that sometimes "people dialed our direct 702 area code number" at their own expense "to place the trouble reports that we're having with regard to the 916 calls." (2 R.T. 59, 62.)
Although hundreds of calls were not made over Westcom's 800 number during the equal access problems, Exhibit 24 does show that of the 34 calls that were made during this eight day period, a total of $23.20 was charged to Westcom for these calls. However, some of those calls may have been about the 1 + 7 calling problem rather than the 1 + 916 + 7 problem. Consequently, Westcom should be credited $20 for the toll free calls that it had to pay for as a result of the calls that may have been calling about the 1 + 916 + 7 calling problem.
E. FGD Alleged Overbillings
1. Position of Westcom
Westcom's amended complaint requests a credit in the amount of $8,075.71 and additional amounts to be determined for the months of March and April 1992. Westcom asserts that the credit is due because: "This overbilling was caused by Citizens backbilling beyond that allowed by CPUC order and tariffs." (Amended Complaint, pp. 3-4.) In support of this allegation, Westcom attached "audit records" to its complaint. These records were admitted into evidence as part of Tab 1 of Exhibit 6.
At the hearing, Sunde testified that this overbilling issue could be attributable to billing and timing errors between Westcom and Citizens, or because of back billing. (1 R.T. 41.) In Westcom's opening brief at pages 7 and 8, and at the hearing, it alleges that the June 1991 "overbilling resulted from Citizens improperly sending calls to Westcom without the 916 area code attached and improperly measuring the minutes." As for the bills for the months of July 1991 through January 1992, Westcom alleges that the usage exceeded what was recorded by Westcom. The bill for February 1992 included 8236 minutes of terminating usage, but Westcom contends that it did not send any terminating traffic over its FGD trunks. (1 R.T. 69-70, 83.)
2. Position of Citizens
Citizens argues that no back billing occurred, except for the non-recurring charges which were authorized by the applicable tariff provisions, and which were discussed earlier in this decision. (Citizens Opening Brief, pp. 11-12, 26-31.)
As for the discrepancies in the usage recorded by Citizens and Westcom, Citizens contends that the joint testing demonstrated that Westcom's switch usage measurements were inaccurate and inconsistent. In addition, Citizens contends that Westcom failed to recognize that many of the calls are originated and terminated in Citizens' operating area, and that two call records with associated access usage will be recorded as a result. Citizens contends that Westcom's records only recorded a portion of the originating access. Citizens also argues that Westcom failed to recognize that Citizens can bill Westcom for access minutes for calls dialed by Westcom customers which reach busy signals and for other types of incomplete calls. (Citizens Opening Brief, pp. 20-25.)
3. Discussion
We first note that Westcom's allegations regarding the FGD billings have taken the form of several different arguments at various points in this proceeding. Initially, in Westcom's amended complaint, Westcom took the position that a credit was due because the bills were back billed beyond the time period provided for in Commission decisions. (Amended Complaint, p. 4.) However, in the July 26, 1991 and March 19, 1992 letters from Westcom to Citizens, the back billing issue was not described at all. Instead, in both of those letters, Westcom stated that credit was due because of the "problems of initial connection and the problem of 916 calls not completing properly" and "the failure of your central office not sending 916 prefixs [sic] to us in both Elk Grove and Susanville." (Ex. 6, Tab 1, pp. 2, 4.) This second argument is also the position that Westcom adopted in its opening brief at pages 7 to 8 with regard to the bill for the month of June 1991.
During the hearing, Sunde testified that the FGD credits that Westcom was requesting were due to the 916 problem, overbilling, and billing for terminated calls that were not terminated at all by Westcom. (1 R.T. 69-70.) In Westcom's opening brief, it made separate arguments for the bills for the months of July 1991 through January 1992, and for the February 1992 bill. Westcom contends that the FGD usage for the months of July 1991 through January 1992 exceeded the usage recorded by Westcom. For the February 1992 billing, Citizens billed Westcom for 8,236 minutes of terminating usage. Westcom asserts, however, that it did not route any terminating traffic over its FGD trunks.
As discussed earlier in this decision, there is no evidence to suggest that any of the FGD access service charges were back billed. Thus, Westcom's argument that it should receive a credit of more than $8,075.71 because Citizens back billed Westcom for access service charges beyond the time limit permitted by Commission decision is without merit.
If Westcom's argument is that the credit of more than $8,075.71 is due to the 1 + 7 and 1 + 916 + 7 calling problems, no credit is due for the reasons stated earlier in our discussion regarding the calling problems.
Thus, the FGD bills must be reviewed in light of Westcom's other argument regarding timing differences, i.e., that the usage recorded and billed by Citizens exceeded what was recorded by Westcom.
Tab 1 of Westcom's Exhibit 6 purports to be the records which support Westcom's contention for credits to its FGD billings. Westcom contends that its switch records were submitted to Citizens, and that its records do not match what was billed by Citizens for FGD services. (1 R.T. 58-70.) Westcom appears to have transmitted these records to Citizens on July 26, 1991, March 18, 1992 and March 19, 1992. (Ex. 6, Tab 1, pp. 2, 4; Citizens' 4/20/92 Answer To Westcom's Complaint, Ex. I(3).)
A review of Westcom's switch records show monthly usage totals from June 1991 through January 1992, and daily usage totals for the month of February 1992. (Exhibit 6, Tab 1, pp. 3-159.) Westcom contends that because its switch records show lower usage, or no usage, as compared to what Citizens billed Westcom, that Westcom was overbilled by Citizens.
Citizens witnesses Innes and Ottaway testified that Westcom's switch records could not be reconciled with Citizens' records because the records of Westcom did not record the time period, the time of day, or the calling points that were involved. As a result, Citizens had no way of determining from Westcom's switch records what telephone traffic was involved. According to Innes, Westcom's switch records are simply summaries of accumulations of usage. (2 R.T. 138-139, 151, 174-175,177-178; 3 R.T. 38; Ex. 44, Citizens Response No. 11.)
Contrary to Westcom's assertion in its complaint that Citizens did not respond to its request for FGD credits, Citizens responded to Westcom's request on at least three occasions. In a Citizens' interoffice correspondence memorandum dated August 9, 1991, it stated that Gladys Foote had spoken with Sunde on August 7, 1991 to discuss payment of the FGB invoices, and that the FGD usage for June 1991 was being disputed. The memorandum also stated that she would advise Citizens' staff of her investigation results. Sunde was copied with the memorandum. (Citizens' 4/20/92 Answer To Westcom's Complaint, Ex. B(2).)
On March 12, 1992, Citizens sent a letter to Sunde, which stated in part:
"I understand from a conversation you had with Marilyn Youmans that you are disputing billed amounts on several invoices and have `taken credits' adjusting the billed amount. Without solid documentation from you regarding your dispute, we cannot conduct a reasonable analysis. The documentation you submitted with your recent payment is not adequate to evaluate your concerns.
"We are willing to work with you to resolve disputed amounts. A complete audit of your circuits and traffic, including joint testing may be required. Please contact our office immediately to initiate an audit." (Citizens' 4/20/92 Answer To Westcom's Complaint, Ex. G.)
On March 27, 1992, Citizens sent another letter to Sunde. That letter responded to the various letters that Westcom had sent. With regard to Westcom's concerns about the accuracy of Citizens recording and processing of Westcom's traffic, the letter stated:
"Our intention is to verify timing of test calls placed from our network center against the timing of the same calls as recorded in your switching equipment. However, on March 26, 1992, when our technician attempted to set up the coordination of such tests you refused to allow the tests or to explain your refusal to cooperate with these efforts to resolve your complaint. With your refusal to allow comparative timing tests you leave the company no other course but to proceed to complete our verification of the timing parameters in our switches without through testing. If our switches prove to be timing according to industry standards we will provide notification via certified mail." (Citizens' 4/20/92 Answer To Westcom's Complaint, Ex. J; See 2 R.T. 58, 169-170.)
In a letter dated March 31, 1992 from Citizens to Sunde, Citizens stated that its technicians had verified the proper measurement of access usage in Citizens' central offices, and that Westcom's "refusal to cooperate in joint testing precludes the development of comparative timing data between your equipment and ours." The letter then went on to state that since Citizens' equipment was operating in compliance with tariff measuring parameters, there was no "further reason to withhold any of the billed amounts due to timing disputes." (Citizens' 4/20/92 Answer To Westcom's Complaint, Ex. J; 2 R.T. 58; See 3 R.T. 128.)
Sunde testified that based on the March 1992 letter from Citizens to Westcom: "There was complete refusal on the part of Citizens to try to discuss the records." (2 R.T. 38-39, 52, 58.) Sunde also testified that Westcom refused to do the testing after it had already drafted the complaint, and had either filed it or was preparing to file it. Westcom felt that it wouldn't do any good to do testing at that point in time. (2 R.T. 54-55.)
A review of Westcom's switch records reveal that Exhibit 6 does not provide sufficient data for Citizens to check its timing and billing records. The switch records of Westcom did not list the time the disputed calls were originated or terminated, or the path of these calls, i.e., the telephone numbers of the calling party and the called party. Although Citizens informed Westcom about the lack of information, Westcom refused to permit any testing of Westcom's switch equipment before the complaint at issue was filed. Nor has Westcom provided Citizens with any detailed call records for any of the disputed calls.
This lack of detailed call records is similar to what occurred in another complaint case between an IEC which purchased interexchange telecommunications services from US Sprint (Sprint). The IEC in C.90-08-010 alleged that Sprint had billed the IEC for substantially more minutes of usage than actually occurred. The Commission dismissed the IEC's complaint because the IEC did not furnish the call detail requested by the defendant prior to the hearing. The Commission stated:
"Given these circumstances, when a question of overbilling by the wholesaler arises, we believe that specific demonstration of the alleged overbilling is required. It is not enough, in our view, that the retailer merely show indications of overcharge in general terms. Specificity is required if complainant is to carry its burden of proof." (D.92-08-018 [45 CPUC2d 258, 261].)
The situation in D.92-08-018 is analogous to the evidence that was presented in this proceeding. Westcom's "audit reports" are simply monthly or daily accumulations of usage as recorded in Westcom's switch. This type of data is insufficient to allow Citizens to review its records. Since Westcom has not presented any specific call detail in this proceeding to support its allegations that overbilling occurred, Westcom "has not carried its burden of proof that overbilling has occurred." (45 CPUC2d at 261.)
After the evidentiary hearing was concluded, Westcom and Citizens agreed to some joint tests. However, these tests did not attempt to match the specific call records of Westcom with the call records of Citizens for the disputed period of June 1991 to March 1992.
Westcom contends that the alleged overbillings are due in part to Citizens assertion that Westcom's call setup time averaged 30 seconds. (1 R.T. 94; Ex. 7, Tab 1, p. 1.) Westcom asserts in its opening brief that its call setup time averages 7.1 seconds as shown in Tab 5 of Exhibit 5, and that in the joint testing performed after the close of evidentiary hearings, that the call setup time was "approximately 5-7 seconds" as shown in Exhibit A of its opening brief.43
It is clear from Tab 1 at page 1 of Exhibit 7 that Citizens was referring to a 30-second call setup time for FGB calls in that memorandum, and was not referring to FGD calls. This reference to the call setup time for FGB calls also appears in Citizens' response to Westcom's data request 3.c. (Ex. 7, Tab 2.). Exhibit 45-B, Westcom Testing Documents, shows that Westcom's internal call setup time averaged 7.84 seconds "on originating FGD trunks," not FGB trunks. (Emphasis added.) Thus, Westcom's argument that Citizens' erroneously calculated Westcom's call setup time as 30 seconds, has no bearing on the FGD bills because the call setup time of 30 seconds was referring to the FGB calls.
The joint testing which took place on July 28, 1992 involved representatives from Westcom, Citizens, and the Telecommunications Branch of the Commission. These representatives were located at Westcom's office in Zephyr Cove, Nevada, and at Citizens' offices in Elk Grove.44 The testing also involved other Citizens personnel located in Susanville and Ferndale. Exhibit 45, which is made up of 45-A, 45-B, and 45-C, contains the results of the joint testing.
The July 21, 1992 letter from Citizens to Sunde, and the "Joint Timing Tests Between Westcom And CUCC, Exhibits 45-A and 45-C, respectively, provide a description of how the joint testing was done. Exhibit 45-B contains the results of the tests that were initiated from Westcom's office at Zephyr Cove, and Westcom's switch printouts. The switch printouts show the number called, the location of the called number, the date, time, and duration of the call, and the cost of the call. In addition to Citizens' description of the joint testing, Exhibit 45-C consists of eight pages of forms entitled "Westcom Dialplan Test - Originating Calls." Those eight pages show the originating telephone numbers of the offices of Citizens which were used to dial some of the test calls, the telephone numbers that were dialed, and the time of the call. Exhibit 45-C also consists of three pages of AMA (automated message accounting) call records which recorded the originating number and the called number, and the elapsed time of the call. The remaining six pages are the terminating call records that are associated with at least 19 of the test calls.
The Westcom Dialplan Test, the AMA call records, and the terminating call records have handwritten circled numbers ranging from 1 to 18. A review of these circled numbers on each of the three different pages provide a paper trail of what telephone numbers were dialed, and the time and duration of the test calls. Based on the information in Exhibit 45-C, and the information provided in Exhibit 45-B, we can associate many of the handwritten circled numbers to the records which appear in Exhibit 45-B.
A review of the "manually time length of call," as reflected in Exhibit 45-B, as compared to the time recorded by Citizens in the AMA call records closely approximate each other. The "time billed by Westcom" was less than the manual time reflected in Exhibit 45-B. In addition, Westcom's recording of the test calls was off by a greater magnitude than the time recorded by Citizens for the same calls. (See Ex. 45-B and Ex. 45-C.) As pointed out by Citizens in Exhibit 45-C, two similar calls (53.80 and 52.97 seconds as manually timed) dialed from 916 685-3838 to 707 786-0011 at approximately 11:15 and 11:16, resulted in a Westcom recorded timing of 42 seconds for the first call, and 32 seconds for the second call.
Based on the data presented in Exhibits 45-B and 45-C, and the other testing performed by Citizens in March 1992 (Citizens' Answer to Westcom Complaint, Ex. J.), we cannot conclude that the alleged FGD billing errors were due to timing-related problems in Citizens' switching and billing systems.
Westcom contends that in order for Citizens billings to be correct, Westcom's recorded usage would have been higher than the usage recorded by Citizens. Westcom asserts that even though it starts its timing later than Citizens, it rounds up to the next highest 6 seconds or full minute, which would result in a higher recorded usage than what was recorded and billed by Citizens. (1 R.T. 97-98, 103-105, 109; 2 R.T. 99.) However, since no timing errors are evident with respect to Citizens' equipment, we are not persuaded by Westcom's argument that because the usage recorded by Westcom, as shown in Exhibits 6 and 9, were substantially less than what Citizens recorded and billed, that Citizens' billings must be incorrect.
Westcom also presented evidence that its billings for FGB and FGD services from other carriers were not disputed by Westcom, or that the carriers agreed to Westcom's adjustments. (Ex. 13; Ex. 14; 1 R.T. 117-126.) However, those billings are not relevant to this complaint case because they do not provide any direct evidence about the FGD billings that are in dispute with Citizens.
Based on the above discussion, we conclude that Westcom has not proved that it was overbilled by Citizens on its FGD billings.
F. PacBell Rate Elements
1. Position of Westcom
Westcom contends that Citizens charges Westcom for PacBell rate elements, and that these rate elements are not contained in Citizens' tariffs. In Westcom's letter dated March 19, 1992 to Citizens, Sunde wrote: "I do not understand why you have added PacBell rate elements to my billings. Please explain this to me." (Amended Complaint, p. 4, Exhibits 11-13.)
2. Position of Citizens
Citizens contends that it has the right under its tariffs to bill for access charges provided by PacBell which terminates in Citizens' service territory. Citizens asserts that Westcom's records (Exhibits 6 and 12) did not consider any of the terminating traffic in Citizens' territory which went through PacBell's tandem facilities. Citizens also points out that Westcom did not deny that it terminate traffic to Citizens from PacBell tandems.
3. Discussion
During the hearing, Sunde sought to remove from the complaint the allegations concerning the PacBell rate elements which appear in Item 11 at page 4 of the complaint, but wanted to be able to ask questions of Citizens' witnesses during the hearing. The ALJ ruled that those allegations should remain if Westcom was going to ask questions of Citizens' witness about these issues. (1 R.T. 140.)
Citizens witness Innes testified about meet point billing. Meet point billing is authorized in both the NECA and PacBell tariffs which Citizens participated in at the time of this dispute. (See PacBell No. 175-T, Section 2.4.8.)45 Meet point billing occurs when there is jointly provided access service. The route that is used is divided in accordance with the joint ownership of that route. When access usage occurs on a jointly owned route, Citizens will charge its access rates for the percentage it owns, and the remainder will be charged at the access rate of PacBell or whoever the other owner is. (2 R.T. 142-145.)
Sunde testified that Westcom's switch records did not necessarily show all calls made to Susanville and Elk Grove. Sunde states that the calls could have terminated on some other carrier's facility. According to Sunde, Westcom's switch records "would only include calls through Citizens' facilities through our switch on our trunks." He also responded that he was only vaguely familiar with how the tariffs are applied to access services which are jointly provided with PacBell. He also understood that if PacBell does terminate a call in Citizens' territory through a PacBell tandem, that Westcom could be billed for that call. (2 R.T. 39-44.)
In Citizens' March 27, 1992 response to Westcom's March 19, 1992 letter regarding the PacBell rate elements, it explained how the meet point billing was done. Citizens also stated that it had thoroughly investigated the issue, that Westcom's claim was without merit, and that Citizens considered the issue fully resolved. (Citizens' Answer To Complaint, Ex. J.)
Westcom has not demonstrated that Citizens' application of the meet point billing tariff was contrary to any tariff.46
G. Elk Grove FGD Lines 96, 97 and 100
Westcom alleges in its amended complaint that it advised Citizens on three or four separate occasions that it was receiving no traffic on its FGD trunks in Elk Grove on Lines 96, 97 and 100. In support of those allegations, Westcom attached to its original complaint a March 19, 1992 letter to Citizens, and a Westcom switch report for the month of February 1992. (Westcom Complaint, Ex. 14.) Westcom's letter states in pertinent part:
"As the enclosed audit report shows, Westcom does not receive any traffic on lines 96, 97 and 100 (FGD Elk Grove). We have called your central office personnel many times but have never obtained proper service or assistance in solving this problem. During this extended period of time we have received hundreds of complaints from our customers regarding busy signals. Citizens has also sent us overflow reports on these circuits indicating customer inability to access our system.
"As a result of the improper attention of your technicians we have suffered losses."
Westcom's "audit report" shows that it did not experience any incoming or outgoing minutes of use on Lines 96, 97 and 100 for February 1992. Westcom did not present any other evidence during the hearing to support this allegation.47
Citizens' witness, Jean Russell, testified that the usage on Westcom's FGD trunks in Elk Grove was minimal. As a result there was no blockage on Westcom's trunks in Elk Grove, and these trunks were fully capable of generating traffic. (3 R.T. 137-138; Ex. 6, Tab 8.) Westcom did not cross examine Russell regarding her testimony. (3 R.T. 141.) Russell's testimony about minimal usage on these three trunk groups is corroborated by numbered paragraph 2 in a Citizens memo. (Ex. 6, Tab 8.)
Westcom has failed to meet its burden of proof with respect to its allegation that it did not receive any traffic over its FGD lines in Elk Grove. Therefore, Westcom's request for reparations for "customer complaints48 and lost customer goodwill associated with Citizen's failure to route calls to Westcom on Westcom trunks 96, 97, and 100, in the amount of $5000.00" is denied.49 (See Amended Complaint, p. 6.)
H. Late Charges
Exhibit 19 reflects the late charges that were assessed against Westcom by Citizens. The late charges reflected in Exhibit 19 amount to $1417.91 in interest. Westcom contends that if the Commission agrees with Westcom's argument that Citizens overcharged or improperly rendered services to Westcom, that the Commission should also reconsider the amount of interest that has been assessed by Citizens. (1 R.T. 135-136.)
Citizens' exhibits show that Westcom owes an additional $325.78 in late charges. This is reflected in Exhibit 46 in the amount of $138.78, and in Exhibit 47 in the amount of $187.50
As noted earlier, the late charges for FGB service were based on a PIU of 100%. Also, as footnote b of Exhibit 46 notes:
"Because Westcom's FGD trunks were all ordered on ASRs indicting a PIU of 100%, Westcom's billing was administered as interstate service in our billing system...."
Since the late charges for both FGB and FGD service were based on the interstate tariffs, we decline to review the late charges associated with the interstate tariffs.
I. Conclusion
Based on all of the evidence that was presented, we only find in favor of Westcom on two issues. First, we agree with Westcom's interpretation that under the PacBell tariff, the language of the tariff suggests that 1 + 10 digit dialing should have been passed by Citizens' to Westcom's switch at the time of the equal access cutover. However, Westcom's allegation that it lost "many thousands of dollars of lost revenues" as a result of the 1 + 10 calling problem, is a request for damages rather than reparations, which the Commission has no authority to award. In addition, Westcom did not offer any proof that it lost thousands of dollars as a result of the 916 call problems.
Second, we find that Westcom is entitled to a credit of $20 for the toll free calls that it had to pay as a result of the customer calls that may have been made to Westcom over its toll free number to report the 1 + 10 calling problem.
As for all of the other issues alleged by Westcom in C.92-03-049, we find in favor of Citizens. Westcom's request for a permanent injunction was previously denied in D.92-08-028. Except for the $20 credit for the toll free calls that may have been made, we deny all the other relief sought by Westcom in connection with its allegations in C.92-03-049.
The Commission is holding a deposit from Westcom in the amount of $12,608.79. Exhibit 72 in C.92-09-006 and C.92-09-025 reflects an outstanding balance of $14,200.51 for FGD service. Except for the $20 credit for the toll free calls, no other reparations to Westcom have been ordered. Since the dispute over the FGD bills has been fully adjudicated, the Fiscal Office is directed to transmit the amount on deposit with the Commission to Citizens. Citizens is directed to credit Westcom's account in accordance with this decision.
