IV. C.92-09-006 And C.92-09-025
A. Introduction
The allegations in C.92-09-006, as amended, and the allegations in C.92-09-025 are closely related. Many of the events alleged in C.92-09-006 were repeated in C.92-09-025, but from a different perspective. Since the issues raised in both cases are interrelated, we will set forth the positions of both parties in each complaint case first, followed by a discussion of all of the issues.
B. Westcom's Complaint In C.92-09-006
1. Original Complaint
Westcom's original complaint, filed on September 3, 1992, alleges that on or about August 20, 1992, Westcom sent Citizens "equal access change requests" for all of its customers in Citizens' service territory. Westcom alleges that these changes were to change current Westcom customers to Westcom's new network, and that no carrier change was involved. On August 25, 1992, Westcom alleges that Citizens disconnected circuits on Westcom's former network, and that as of August 28, 1992, Citizens had still not processed Westcom's requests. As a result, Westcom alleges that Westcom's customers in Citizens' service territory were unable to place any interexchange long distance calls because of Citizens' refusal to process the changes requested by Westcom.
Westcom alleges that on August 25, 1992, it advised its customers to call Citizens directly and request that Citizens change their IEC to Westcom's new network, which Westcom referred to as "Com Systems 266." Westcom alleges that Citizens refused to process those direct customer requests in a timely manner. Westcom also alleges that Citizens advised these customers that: Westcom was out of business; the list of possible IECs read off by Citizens did not mention Com Systems as a possible carrier; Com Systems did not have facilities out of the Susanville area, and therefore Citizens would not process the customers' requests; and that Citizens told some customers that the charge to make this change would be $13.50, and that it told others that the charge would be $11.00.
Westcom contends that Citizens' refusal to accept residential customers in the Susanville area for Com Systems was not justified. Westcom asserts that the evidence shows that Exhibit 68 only applied to the Elk Grove exchange. Westcom asserts in its opening brief that "virtually all of Westcom's customers were not located in Elk Grove, but rather were in the Susanville area," and asserts that Com Systems most likely ordered both residential and business service in the Susanville area. (Westcom Opening Brief, pp. 78-79.)
Westcom alleges that Citizens' actions are in violation of the antitrust laws, Business and Professions Code Sections 17095 and 17096, as well as various sections of the Public Utilities Code. Westcom argues in its opening brief that Citizens' actions were "an illogical, unlawful, abusive campaign to disrupt Westcom's business interests." (Westcom Opening Brief, p. 5.) Westcom contends that the letters which Citizens sent to Westcom's customers portrayed Westcom improperly, and that its customers were driven away by such techniques. Westcom contends that the goal of Citizens "was to cause Westcom irreparable harm and to eventually force Westcom out of business in CUCC's territories." (Westcom Opening Brief, p. 58.)
Westcom requests a permanent injunction51 against Citizens and others acting for, under or in concert with Citizens, from engaging in the following: refusing to make any equal access changes requested by Westcom's customers; telling any customer that Westcom is out of business; telling any customer that Com Systems does not have facilities in the Susanville area; discriminating against any IEC by not advising its customers of all the IECs that are capable of providing service to its customers; and quoting incorrect charges for changing the equal access provider.
Westcom's complaint also requests that "reparations" be paid for the following: to Westcom for lost customers, lost revenue, slander, damage to customer goodwill and reputation, and other damages in the amount of $100,000; to "Citizens'/Westcom's' customers" for the loss of long distance service in the amount of $250,000; and to Com Systems in the amount of $100,000 for Citizens' refusal to convert customers to Com Systems, and Citizens' refusal to list Com Systems as a choice among the long distance carriers.
Westcom also requests that the Commission issue penalties pursuant to § 2100, and following, against Citizens and its employees, officers, and agents in the amount of $1.2 million.
2. First Amended Complaint
Westcom's First Amended Complaint relates to events and testimony which were the subject of C.92-03-049, and certain events that occurred after the evidentiary hearing in C.92-03-049 had concluded.
Westcom alleges that following the filing of C.92-03-049, and prior to the evidentiary hearings in that case, Citizens changed Westcom's FGB billings without notice. This resulted in additional monthly charges to Westcom of $6,000 to $7,000 per month. Westcom alleges that Citizens refused to discuss or explain the new billings due to the pending litigation. According to the First Amended Complaint: "Westcom thus entered the hearing blind, with no knowledge or information to explain this very sudden billing change." Westcom also asserts in its opening brief that this unlawful billing procedure forced Westcom out of business in Citizens' service territory.
Westcom alleges that during the hearing in C.92-03-049, employees of Citizens testified that this new billing was based on the "Assumed Billing Method," even though the billings for March, April and May of 1992 did not state that. Westcom alleges that Citizens testified at the C.92-03-049 hearing that the "earlier 1991 bills" did contain the statement "Assumed Billing Method."
Westcom also alleges that Citizens' testimony in the C.92-03-049 hearing stated that Citizens "did not have the ability to measure FGB terminating traffic in Susanville and Elk Grove, but did have measurement capability on originating FGB and could measure originating and terminating on FGD (Equal Access)."
Westcom alleges that following the hearings, Westcom uncovered documents "which directly contradict Citizen's testimony at the Hearing wherein Citizens's employees testified that Citizen's does not now insert on the FGB billings the message `Assumed Minutes of Use Method.' " (First Amended Complaint, p. 3.) Those documents were attached to Westcom's Petition to Set Aside Evidentiary Hearing, which was denied in an ALJ ruling dated July 31, 1992.
Westcom alleges that the lack of the "Assumed Minutes" on Westcom's billings, and Citizens' refusal to explain the billings, were prejudicial to Westcom and subjected it to a disadvantage in violation of § 453. Had Westcom known that the "latest FGB billings" were based on an assumed minutes of billing method, it alleges that it could have changed these circuits to one way at an earlier date, and eliminated this increase.
Westcom also alleges that following the hearing in C.92-03-049, Westcom submitted ASRs to Citizens, which were dated June 4, 1992. According to Citizens, these ASRs attempted to change Westcom's FGB trunks to one-way, originating only. Westcom alleges that Citizens responded with a letter dated June 5, 1992 in which it refused to institute the change order. Westcom alleges that when Sunde called Innes, that Innes "refused to fully disclose his reasons for refusal other than to reference a lack of PIU" and that Sunde informed Innes that Westcom would provide an updated PIU. Before Westcom could update its PIU, Westcom alleges that Citizens sent it another letter dated June 8, 1992. That letter refused to process any change orders until Westcom paid a deposit of $23,390 to Citizens. Westcom alleges that Citizens takes the position "that a `change order' constitutes new services wherein a deposit may be required." (First Amended Complaint, p. 4.) Westcom disputes this position, and alleges that the tariff sections covering deposits were intended to apply to orders for new service only, and not to change orders.
Westcom contends that Sunde "offered to prepay the non-recurring installation charges" in order to change its FGB trunks to one-way, but that Innes refused to accept the payment. Westcom asserts that:
"Apparently, it was acceptable to CUCC to bill Westcom an additional $5-7000. or more per month for services Westcom attempted to disconnect, but would not either bill nor accept prepayment of the $1500-$2000. one-time installation charges...." (Westcom Opening Brief, p. 61.)
Westcom asserts that Citizens' refusal to change Westcom's FGB trunks resulted in the continuation of Westcom's FGB billings, and that Citizens did so "for the purpose of running up Westcom's bill in their efforts to put Westcom out of business in CUCC territories." (Westcom Opening Brief, p. 62.) Westcom also states:
"Westcom reminds this Commission that Westcom showed its good faith when it paid all disputed billings ($12, 500.) over to the Commission pending resolution of Westcom's complaint process. This amount was being held by this Commission when CUCC unilaterally refused to change Westcom's trunks to one-way and CUCC had full knowledge of this payment. Additionally, CUCC threatened to disconnect Westcom's services, so as to prevent an increase in billings to Westcom, but then refused to disconnect portions of those very same services when requested to by Westcom. The portion of the services Westcom requested CUCC to disconnect (change from two-way to one-way because of excessive assumed billing on the terminating side), were those services and charges that were disputed by Westcom. Westcom attempted to mitigate its losses, but CUCC refused to comply with that request." (Westcom Opening Brief, pp. 60-61, original emphasis.)
Westcom alleges that it submitted new PIUs to Citizens on June 12, 1992, but in a June 15, 1992 letter from Citizens to Westcom, Citizens rejected the submission. Westcom alleges that it resubmitted its PIU changes again on June 22, 1992 with the audit records requested by Citizens. According to the First Amended Complaint, Citizens then accepted Westcom's PIU changes.
Westcom alleges that the acceptance of the PIU changes contradict Citizens' refusal to accept Westcom's request to change its FGB services to one-way, originating only traffic. Westcom alleges that Citizens accepted the PIU change without a security deposit. Westcom alleges that the reason that Citizens did so was because the acceptance of the PIU change did not reduce the amount that Citizens could bill Westcom. However, Westcom's request to change its FGB service to one-way, originating only, would have caused a significant reduction in Westcom's billings from Citizens. Westcom asserts that it was in Citizens' interest to continue billing on assumed measurement rather than actual measurement, and that Citizens' actions were extremely discriminatory.
Westcom further alleges that it was assured verbally by Carl Swanson of Citizens in May 1989, and by letter on June 9, 1989, that Citizens would measure FGB service. Westcom alleges that during the C.92-03-049 hearing:
"Testimony at the Hearing indicated that Citizens can measure FGD originating and terminating but only measures FGB originating and bills FGB terminating `Assumed Minutes,' even though the FGB and FGD are measured in the same tandem switch. FGB is not measured at end office switches as claimed by Citizens, it is measured at the tandems." (First Amended Complaint, p. 6.)
Westcom alleges that Citizens' switches possess the capability to measure FGB terminating traffic, or that Citizens has chosen not to purchase the "NTX Feature Package" to do so.52 Westcom alleges that during the C.92-03-049 hearing, "Citizens testified that the ... software for their Northern Telecom DMS 100 switches was BCS 31 (Generic Level 31)." According to the First Amended Complaint, when Citizens was "repeatedly questioned about any further description they denied that there was any further description of their software." Westcom alleges that "additional NTX feature packages must be purchased with each BCS release." Westcom alleges that if Citizens is able to bill $40,000 to $50,000 per month using assumed billing, and the purchase cost of FGB measurement software is $50,000 or $100,000, Citizens "is subverting the true intent of `having measurement capability' as outlined in Citizen's tariffs." (C.92-09-006, First Amended Complaint, p. 6.)
Westcom contends in its opening brief at page 34 that Exhibits 107 through 110 represent Westcom's itemization of the overbillings by Citizens for the months of May 1992 through June 1992 in the amount of $12,997. These exhibits are essentially the same kind of "audit reports" that Westcom submitted during the hearing in C.92-03-049. (6 R.T. 416-417.)
Westcom asserts in its opening brief that billing FGB terminating usage is only permitted when the end offices are not equipped with measurement capabilities. Westcom contends that the entry switches for FGB service were the Susanville and Elk Grove tandems, and that the evidence shows that Citizens had the "capability to measure FGB terminating at these entry switches" and that "additional measurement at the subtending end offices is unnecessary." (Westcom Opening Brief, pp. 31-32.) Westcom also contends in its opening brief at page 2, that the record reflects that Citizens "sponsored evidence and testimony that contained an immeasurable number of inconsistent and contradictory facts" regarding Citizens' switching capabilities.
The First Amended Complaint also alleges at page 7 that Westcom has "attempted to have Citizens allow the mandated 700 calling on its FGD trunks," but that Citizens has refused to do so without payment of a deposit.53 Westcom alleges that 700 calling is "automatically part of FGD" service, and that Citizens' refusal discriminated against Westcom. Westcom also alleges that Citizens blocked customers from using the 700 feature for the purpose of causing disruptions to Westcom's services and customers. Westcom also alleges that Citizens changed its testimony and admitted that the 700 service was an automatic feature of FGD service.
Westcom alleges that pursuant to the authority in § 703, the Commission has the authority to investigate the "apparent discriminatory practices of Citizens."
The First Amended Complaint also alleges that:
"Westcom's investigation disclosed that one customer Citizens provides service to is allowed to terminate switched access services on standard business lines in violation of Citizen's tariff and Commission rules and orders. This is clearly discriminatory, is in restraint of trade and violates antitrust laws, both State and Federal, and is the subject of another major Commission Complaint, 92-07-045."
Westcom alleges that the actions of Citizens against Westcom were unlawful and discriminatory, that Citizens intended great and irreparable harm to Westcom, and that Citizens caused serious prejudice and disadvantage to Westcom. Westcom requests that the Commission grant the relief requested in the other complaints. Westcom also requests that Citizens' FGB billings to Westcom, which were based on assumed terminating traffic, be disallowed. Westcom also requests that Citizens be ordered to disconnect all exchange services that have been used to unlawfully transport interexchange services, and order other relief that the Commission determines is just and reasonable.
During the evidentiary hearing, and in its opening brief, Westcom also argued that Citizens violated Section 203(b)(1) of Title 47 of the United States Code, § 532, and Rule 23 of the Commission's Rules of Practice and Procedure (Rules). (5 R.T. 398-399; Westcom Opening Brief, p. 32-33.)
3. Second Amended Complaint
The Second Amended Complaint states that in C.92-03-049, Westcom alleged that Citizens engaged in overbilling and other improper billing practices. Westcom alleges in the Second Amended Complaint that:
"Citizens caused Westcom's customers calls to be sent to and/or billed by MCI in error. Westcom further alleges that although Citizens was aware of this problem for an extended period of time, Citizens failed to properly correct this problem. Citizens was grossly negligent in not solving this problem in a timely manner."
Westcom also asserts that page 13 of Exhibit 27 shows that a Westcom customer had a call routed to MCI, even though the customer was on the Com Systems network. (Westcom Opening Brief, p. 86.)
Westcom's request for relief in the Second Amended Complaint is unchanged from what is contained in the First Amended Complaint.
During the hearing and in Westcom's opening brief, Westcom contends that Citizens had other "serious billing problems and fraudulent billing practices." At page 6 of Westcom's opening brief, it states:
"Westcom uncovered documents that exposed an inordinate number of billing problems experienced by CUCC during the past several years. Included in these problems were several unlawful, absolutely fraudulent billing practices engaged in by CUCC." (Westcom Opening Brief, pp. 38-48.)
Westcom further contends in its opening brief that Gladys Foote and Ronald Ottoway, who were Citizens employees when C.92-03-049 was filed, had knowledge of these various billing problems. Westcom states that Exhibit 76 referenced "several such billing problems, without limitation, a double billing problem that likely impacted Westcom's billings, improper billings to MCI, a billing error to AT&T and application of an improper rate element."54 (Westcom Opening Brief, p. 38.) Although Foote was not called to testify in C.92-03-049, she was a witness in the second hearing. Westcom implies that her testimony is trustworthy because Citizens had wanted her to testify in C.92-03-049 and that Citizens exerted "excessive pressure ... on Mrs. Foote to testify and further to testify untruthfully."55 Westcom asserts that the testimony of Foote and Ottaway confirm that Citizens experienced an "unusually high number of billing problems" and that Citizens covered up these problems "at a very high management level." (Westcom Opening Brief, pp. 38-39.)
C. Position of Citizens in C.92-09-006
Citizens contends that Westcom is at fault for the problems that Westcom's customers experienced as a result of the cutoff of service to Westcom on August 25, 1992. Citizens contends that Westcom did not contact Citizens prior to, or after, the cutoff of service to Westcom on August 25, 1992. Instead, Citizens received the letters of agency (LOAs) from Com Systems. 56 Due to the suspect nature of the LOAs, Citizens was not able to verify the validity of the LOAs until Citizens received a call from Com Systems on August 25, 1992.
Citizens asserts that Westcom sent two inflammatory and misleading notices to its customers in Citizens' service territory instead of contacting Citizens. Citizens contends that the first notice was sent out by Westcom on the day of the cutoff, and described a merger with an unknown carrier. Citizens also contends that the notice indicated that Citizens was not processing the primary interexchange carrier (PIC)57 changes to the new carrier in a timely manner. Citizens asserts that the second notice urged Westcom's customers to file a complaint against Citizens with the Commission for failing to process the PIC changes.
Citizens does not dispute that some of Westcom's customers were confused during a one- or two-day period after Citizens terminated Westcom's access services. However, Citizens contends that this confusion and inconvenience were caused directly by Westcom's failure to contact Citizens' Carrier Access group with information about the Com Systems' arrangement, Westcom's misleading notices, and Westcom's deliberate and willful violation of D.92-08-028.
Contrary to Westcom's assertions that a Citizens' employee informed Westcom's customers that Westcom was "out of business," Citizens contends that the depositions of numerous customers revealed that those customers were under the assumption that Westcom was no longer in business as a result of reading the merger notice. Citizens asserts that the depositions show that these customers were not able to distinguish between an economic merger of two companies and a merger of transmission networks.
Citizens contends that Westcom's excuse for its failure to comply with the Commission decision was that it disagreed with the decision. However, Citizens points out that Westcom never filed for rehearing or modification of the decision, and did not contact the ALJ. Although Westcom repeatedly availed itself of the Commission's processes, Citizens contends that Westcom chose not to challenge the order, but instead willingly violated the Commission's order.
Regarding Westcom's allegation that Citizens failed to process its PIC changes, Citizens contends that the request for "a change in a carrier identification code is a change in carrier." (Citizens Opening Brief, p. 5.) Citizens asserts that the FCC "did not contemplate bizarre arrangements where customers are `PIC'ed to one carrier but billed by another carrier." (Ibid.) In addition, the interstate and intrastate tariffs which apply to Citizens, contain a description of the process for handling LOAs, which Citizens asserts it followed.
Citizens contends that it did not mistakenly inform residential customers in Citizens' service territory that Com Systems was not available as an IEC choice. Citizens asserts that Com Systems had indicated to Citizens at the time of the equal access cutover, that it would only accept business customers. It was not until August 26, 1992, one day after the cutoff of Westcom's access service, that Com Systems told Citizens that it would accept residential customers.
Citizens asserts that in some cases, the inability of Westcom's customers to make long distance calls was directly caused by Westcom's failure to reprogram or disconnect the autodialers, which were located on the customers' premises, and which automatically dialed Westcom's carrier code number.
Citizens asserts that the dispute between Citizens and Westcom centers around the following: (1) whether Citizens had the ability to measure all FGB terminating traffic at the time Westcom was an access customer of Citizens; (2) whether sufficient data was accumulated at the tandem switch during the period in question to bill traffic that terminates at subtending Stromberg Carlson end offices that home off the tandem; and (3) whether Citizens' Northern Telecom DMS-10 switches can measure FGB terminating traffic. Citizens contends that the answer to all three issues is no. Citizens asserts that its technical experts testified that the Northern Telecom DMS 100/200 tandem switch of Citizens had the technical ability to measure FGB terminating traffic for calls terminating at the tandem. The two former employees of Citizens, who were called to testify by Westcom, testified that the actual call records during this period did not produce the information necessary to bill all the IECs for terminating FGB usage.
Citizens points out that the outside technical experts relied on by Westcom were only familiar with one vendor, Northern Telecom. The Northern Telecom employee who testified at the hearing on behalf of Westcom indicated that he had no familiarity with Citizens' California network. The other person from Northern Telecom whom Westcom relied on, submitted an unsworn, handwritten affidavit, on the last day of the hearing. Citizens asserts that since Westcom did not make that person available for cross-examination, the affidavit cannot be given any evidentiary weight.
Citizens asserts that both the federal access tariff and the state access tariff allow the billing of assumed minutes when measurement is not possible. According to Citizens, the tariff requires measurement at the entry switch or the first point of switching. For calls that traverse the tandem but go to a distant end office, the entry switch is the end office switch. Citizens contends that Exhibits 9, 10 and 11 all indicate that the DMS 10 and Stromberg Carlson DCO end office switches did not have the software to support the measurement of FGB terminating traffic. Citizens contends that the billing of assumed usage for terminating FGB traffic was strictly within the language of the tariffs.
If Westcom wanted to have measurement of all of its terminating traffic, Citizens asserts that Westcom had the right under the federal and state tariffs to order direct trunks to Citizens' end offices. Westcom instead chose to order access to the tandem. Citizens contends that the burden is on the IEC to order access facilities which best suit the needs of the individual carrier, and that the LEC is not in a position to second guess those needs.
After Citizens' management was changed in l991, an internal investigation was launched to determine if Citizens was billing access revenues in accordance with all applicable rate elements. Citizens asserts that during this investigation, it discovered that it had not been billing terminating FGB access as permitted by the tariff. Citizens therefore began to bill for FGB terminating usage starting with the February 1992 usage.
Citizens asserts that the use of the word "assumed" was only placed on a bill if assumed usage was being used to bill both originating and terminating traffic. If the IEC was being billed in only one direction on the basis of assumed usage, the word "assumed" did not appear on the bill. Had the word "assumed" been added to Westcom's bill, Citizens contends that the bill would not have been any clearer because originating FGB traffic was billed on the basis of actual measurement.
Citizens contends that the Commission is without jurisdiction to grant Westcom's request for reparations for the assumed billing of FGB terminating traffic because it is a request for damages.
Citizens contends that due to Westcom's payment history, Citizens demanded a deposit when Westcom submitted an ASR to change its trunks, and when Westcom attempted to order 700 service by itself. Citizens asserts that under both its interstate and intrastate access tariffs, it can request a deposit before processing a service order from a carrier with a bad payment history. Contrary to Westcom's assertion, Citizens contends that Westcom never offered to pay any charges. Since it had no reasonable expectation of getting paid by Westcom, Citizens asserts that it had a right to require a deposit in order to protect its ratepayers from further subsidizing Westcom.
Citizens internal investigation of its billing practices during the late 1991 to early 1992 timeframe also uncovered some billing errors. Contrary to Westcom's attempt to portray Citizens as having major billing problems, Citizens asserts the these problems were not supported by the record, and that the errors were of an insignificant magnitude. In addition, Citizens contends that every billing error that was uncovered was corrected, and that every affected carrier received either a refund or a credit, including Westcom. Citizens also contends that Westcom has no standing to raise billing error issues on behalf of other carriers.
D. Citizens' Complaint in C.92-09-025
Citizens' complaint concern allegations regarding events that took place after the Commission issued D.92-08-028. In that decision, Citizens was authorized to terminate its access services to Westcom. The decision also ordered that if Westcom did not tender the full amount in dispute in C.92-03-049 within two weeks to either Citizens, or to the Commission to hold in escrow, that Westcom was to send a letter to all of its California customers in Citizens' service territory using the following text:
"Dear Customer:
"Due to a billing dispute with the access service provider, Westcom will be unable to process your long distance calls beginning [date fourteen days after the mailing date of this decision]. You should make arrangements with another long distance carrier before this date so that your long distance service will not be interrupted.
"We apologize for any inconvenience that this may cause you."
Citizens alleges that after it determined that Westcom made no payments to either Citizens or to the Commission, Citizens terminated its access services to Westcom on August 25, 1992.
On August 26, 1992, Citizens received from one of its customers, a copy of a letter that it had received from Westcom, and which is attached to Citizens' complaint as Exhibit A. Citizens alleges that the Westcom letter did not conform to the language mandated by the Commission in D.92-08-028, and that the letter contained substantial misinformation. Citizens alleges that Westcom willfully and flagrantly violated D.92-08-028, and that Westcom admitted that it failed to follow the Commission's order to notify its customers. Citizens contends that Westcom's only justification for violating D.92-08-028 was that Westcom did not agree with the order.
Citizens also alleges that the letter which Westcom mailed to its customers stated that Westcom had advised Citizens to convert Westcom's customers to the newly merged network. Citizens asserts that no such contact occurred. Citizens further alleges that mass changes between IECs are forbidden by the FCC, unless each customer specifically authorizes the change of carrier. Citizens alleges that these same requirements and guidelines to change a customer's IEC are also contained in PacBell's 175-T tariff, which Citizens concurs in.
When Citizens began to receive the PIC requests to move former Westcom customers to Com Systems, Citizens alleges that the requests did not have the customer signature as required by the applicable tariffs and FCC rulings. When Citizens tried to verify the change requests with Com Systems, Westcom issued another customer notice which stated that Citizens had refused to honor the change orders, and urged its customer to complain to the Commission about their inability to place calls using Westcom's new carrier. (Citizens' Complaint, Ex. D.) Citizens contends it followed the appropriate procedure in verifying and processing the LOAs.
Citizens asserts that Westcom's argument that its networking arrangements with Com Systems did not constitute a change in carrier is unsupported. Citizens contends that the PIC represents the carrier identification code, and a change in that code represents a change in carrier. Citizens points out that the FCC rules have nothing to do with what carrier ultimately bills the end use customer, and that the FCC never contemplated the arrangement between Westcom and Com Systems.
Citizens alleges that Westcom's disregard for the Commission order created great confusion and denied customers their right to freely choose their IEC. Citizens also alleges that Westcom's letters disclosed the use of slamming techniques. To ensure that Westcom's former customers were advised of their right to freely choose their IEC, Citizens sent out a notice correcting the statements contained in Westcom's letter, and provided contact numbers for customers to call to change their IEC. (Exhibits E and F of Complaint.) Citizens contends that since it is indifferent to which carrier a customer chooses, Citizens had no incentive to cause inconvenience to any customer or to inhibit their choice of carrier.
Citizens alleges that Westcom's refusal to pay its access service bills has caused Citizens' ratepayers to subsidize Westcom's access services. Citizens contends that it is unfair that its ratepayers continue to bear the unnecessary costs caused by Westcom's unlawful activities and its violation of Commission orders.
Citizens also alleges that Westcom is failing to comply with D.88-09-009. That decision granted Westcom's application for a certificate of public convenience and necessity (CPCN) to provide interLATA message toll service. Citizens alleges that Westcom is reselling switched access services as part of its provisioning of message toll services to Citizens' local exchange customers. Citizens contends that the resale of switched access services is prohibited by D.89-10-031 and D.84-06-113.
Citizens further alleges that Westcom is holding itself out to the public as a provider of intraLATA services, and that it solicited the local exchange customers of Citizens to use Westcom for their intraLATA calling. Citizens alleges that D.88-09-009 specifically prohibited Westcom from holding out to the public the provisioning of intraLATA services, and that Westcom was to advise its customers that intraLATA communications should be placed over the facilities of the LEC. Citizens also asserts that Westcom's alleged intraLATA activities were contrary to the settlement reached with Westcom in C.89-10-027.
Citizens complaint alleges that the calling data provided by Westcom to Citizens shows that 43% of all calling for Westcom's customers in the Susanville exchange is intraLATA in nature. Citizens contends that this far exceeds any "incidental" usage. Citizens also contends that Westcom trained its marketing representatives to solicit business on the basis of intraLATA savings, and that it preprogrammed the autodialers for its customers for the sole purpose of bypassing Citizens and routing intraLATA calls directly to Westcom's switch. In addition, Westcom sent out notices to its customers advising them to use 700 access for intraLATA calling.
Citizens contends in its opening brief that these cases are a culmination of a series of complaints filed by Westcom against Citizens over the past few years, and that Westcom has never been willing to resolve the issues short of litigation. Citizens contends that Westcom "deliberately caused" its customers inconveniences for the sole purpose of filing another complaint against Citizens, and exhibited improper conduct and a pattern of harassment against Citizens' employees at the depositions and hearings. Westcom's allegations have resulted in thousands of hours of labor and hundreds of thousands of ratepayer dollars to investigate Westcom's complaints. In the meantime, Citizens contends that Westcom has not paid the access bills owed to Citizens, even for those amounts that are not in dispute. Citizens asserts that Westcom's behavior and vexatious litigation tactics should not go unpunished.
Citizens requests that Westcom be permanently enjoined58 from: (1) purchasing and reselling switched access services; (2) holding itself out to the public as a provider of intraLATA services and requiring Westcom to advise its subscribers that intraLATA calls are to be handled by the LEC; (3) providing incorrect information to Citizens' local customers regarding Westcom's service and informing Westcom's customers of the unlawful nature of its prior notices; and (4) soliciting intraLATA business from the public and to inform the public and all of Westcom's customers of the unlawful nature of Westcom's past advertising. Citizens also seeks an order that Westcom pay Citizens reparations in the amount of $35,000 for the cost of the customer notices prepared and sent by Citizens, and for time spent by Citizens' employees to correct the misinformation created by Westcom. Citizens also requests that the Commission issue penalties against Westcom, and its officers and agents, for the willful violation of Commission orders in the amount of $1,000,000 and for other relief as the Commission deems proper.
E. Position of Westcom in C.92-09-025
Westcom asserts that upon realizing at the hearing in C.92-03-049 that Citizens was billing assumed usage for Westcom's terminating FGB trunks, Westcom submitted an order to Citizens to change those trunks from two-way to one-way. Westcom argues that Citizens refused to process this change "claiming Westcom would not pay the $1,500-$2,000 one-time installation charges, even though Westcom had offered to prepay those charges." (Westcom Opening Brief, p. 4.) Citizens then continued to bill Westcom on a two-way basis.
Westcom asserts that Citizens' refusal to accept the installation charge, and its refusal to change Westcom's FGB trunks to one-way, were unlawful and constitute "an unconscionable, unlawful adhesive contract." (Id. at p. 5.) Westcom asserts that the tariffs should be liberally interpreted in favor of the customer. Westcom also states:
"CUCC's tariffs were written by CUCC and Westcom was afforded no opportunity to negotiate or bargain for terms favorable to Westcom. Because of CUCC's monopoly position in the provisioning of switched access service to Westcom, CUCC's tariffs were imposed on Westcom on a take-it-or-leave-it basis. Since Westcom could not obtain these services elsewhere, Westcom was forced to accept the contract (tariffs) offered by CUCC...." (Id. at p. 62.)
Westcom also asserts that Citizens' tariffs prevented Westcom from being able to disconnect the terminating portion of its FGB trunks. Westcom contends that the tariff is unjust and unreasonable under § 451, and therefore unenforceable.
Westcom contends in its opening brief that despite Westcom's deposit of $12,500 with the Commission in C.92-03-049, D.92-08-028 ordered that Citizens be allowed to disconnect Westcom's trunks, and that Westcom be required to send a letter to its customers in the text prescribed by the decision. Westcom asserts that this text was not discussed with Westcom, and that:
"Westcom has since asserted that the Commission erred in requiring that particular text because the loss of Westcom's trunks did not, in and of itself, require Westcom to `go out of business.' "(Westcom Opening Brief, p. 1.)
Westcom also contends that the notice ordered by the Commission had the effect of ordering Westcom out of business without due process.
Westcom did send a notice to its customers "containing text developed by Westcom." (Id. at p. 2.) According to Westcom, the notice stated that Westcom had merged its transmission network into the transmission network of another carrier and that it would continue to provide service in Citizens' service territory. Westcom contends that the notice was sent with "the intent to save as many customers as possible," and to advise its customers as to the status and changes in Westcom's services. (Ibid.) Westcom admits in its answer to the complaint that the letter that the Commission ordered in D.92-08-028 was not in the form prescribed by the Commission, but denies that the letter contained any misinformation.
Westcom contends that its conversion notice, Exhibit 46, did not contain any misstatements, as alleged by Citizens. Westcom asserts that it was merging "its transmission network into the network of a major westcoast carrier," as opposed to the merger of two companies. (Westcom Opening Brief, p. 55.) Westcom asserts that Exhibit 103 shows that Com Systems verified Westcom's use of their network facilities.
Westcom contends that Citizens "embarked upon an unlawful and irrational campaign to disrupt Westcom's business relationships with its customers, whose intended purpose was to indeed put Westcom out of business." Westcom asserts that with the coming deregulation of intraLATA long distance calling, Citizens "has concluded that it alone will retain the bulk of intralata income, even if it must engage in predatory and unlawful behavior to accomplish this goal." (Ibid.) Westcom asserts that:
"In order to cover its predatory practices, CUCC developed, prepared and then sponsored one set of fabrications after another, a virtually incalculable number of times. CUCC has now accomplished their goal--Westcom has been forced out of business in CUCC territories at a loss to Westcom of approximately $50,000. in monthly revenue." (Westcom Opening Brief, p. 87.)
Westcom asserts that it is authorized to operate as a switchless reseller, and that when Westcom converted to the Com Systems' network in August 1992, it was operating as such in full compliance with FCC and Commission rules and regulations. Westcom contends that Citizens was under the false assumption that Westcom was acting unlawfully as a reseller, and that Citizens "sent letters to Westcom's customers advising these customers that Westcom was not allowed to remain in business and suggesting that Westcom had otherwise committed several unlawful acts." Westcom also contends that Citizens "then went about convincing Westcom's customers to consider choosing another long distance carrier other than Westcom." (Westcom Opening Brief, pp. 4, 54.)
Westcom contends that Exhibit 102, a letter sent to Westcom's customers from Citizens, contained a reference to Citizens "rightfully rendered bills." Westcom asserts that this left the inference that "Westcom had lost in the complaints filed against CUCC and imparted an extremely negative connotation to Westcom's business practices." (Westcom Opening Brief, p. 57.)
In Westcom's answer to the allegation that it willfully and flagrantly violated the Commission's order, Westcom stated:
"The notice specified by the Commission, referenced in Paragraph 8 by Citizens, inappropriately required Westcom to leave the long distance business in Citizens' territories. The Commission failed to recognize that Westcom had other options available to it. Westcom, therefore, believes the Commission erred in its decision and should have worded the letter requirements somewhat differently. Due to time constraints (Westcom has less that [sic] 14 days to save its customer base in Citizens' territories) Westcom was unable to appeal the wording required by the Commission." (Westcom Answer to C.92-09-025, p. 2.)
Westcom also contends in its opening brief "that the Commission erred in ordering Westcom to go out of business." (Westcom Opening Brief, p. 54.)
Westcom contends that a "mere pic code change" did not amount to mass changes between IECs, and that such changes are not prohibited by the FCC. Westcom contends that its customers were not changed to a new carrier, but rather, "only the network was changed." Westcom contends that the carrier prior to submission of the PIC code changes was Westcom, and that after the submission of the PIC code changes, the carrier was still Westcom. Westcom contends that a change of carrier is defined by the FCC as "leaving your current carrier and choosing a new long distance carrier." All that occurred, asserts Westcom, is that there was "only a change in trunking and network access." Westcom further asserts that its customers had already selected Westcom, and that Citizens' allegation that Westcom's customers were slammed and denied their right to freely choose their long distance company is ludicrous. (Westcom Answer, p. 3; Westcom Opening Brief, pp. 5, 74-75.)
Westcom further contends that the PIC change charge was correctly reported by Westcom as $5.00, instead of the $5.26 which Citizens alleges is the correct charge.
Westcom asserts that contrary to Citizens' assertion in Exhibit 47, Westcom did advise Citizens to converts its customers to the new Com Systems' network. Westcom contends that the evidence shows that Citizens received the PIC order changes from Westcom. Westcom also asserts that Sunde personally called Citizens and advised them that the LOAs were from Westcom. (Westcom Opening Brief, p. 56.)
Westcom asserts that Citizens has failed to show that it was Westcom's intent to solicit intraLATA traffic. Westcom contends that the letter informing customers about 700 dialing was only sent to 40 or fewer California customers. Westcom further contends that Citizens only produced evidence that one Westcom customer, Greg Short, was directly solicited by Westcom's salesman. Westcom also states that the call records attached to Short's deposition in Exhibit 23 did not contain any intraLATA calls. Westcom also contends that the depositions of the other Westcom customers did not reflect any intraLATA usage through Westcom as well. Westcom also points out that when Short was solicited as a customer by Westcom's representative, Scott Madison, Short was subscribed as an equal access customer. This had the effect of routing all of Short's intraLATA calls through Citizens. Westcom also asserts that after Madison left Westcom's employment, that Madison "improperly used confidential Westcom customer lists to re-solicit Westcom's customers for his own network..." (Westcom Opening Brief, pp. 70-71.)
As for the "700 intralata dialing list," Exhibit 61, that Citizens presented, Westcom contends that the Citizens witness on cross examination "reluctantly admitted most calls on the list were in fact interlata calls." (Westcom Opening Brief, p. 5.)
Westcom also contends that the point of origin from where a phone call is made cannot be determined by simply looking at phone call records. Westcom asserts that what may appear to be an intraLATA call was actually a call from outside the caller's local calling area using Westcom's 950 access number or 800 number.
Westcom also contends that it filed an intraLATA tariff with the Commission during the time that Westcom improperly assumed that intraLATA competition was scheduled to begin in the near future. Westcom asserts that many other IECs also filed intraLATA tariffs "because they also believed intralata was to begin soon." (Westcom Opening Brief, p. 70.) Westcom states that its intraLATA filing was withdrawn at the request of the Commission staff.
F. Discussion
1. FGB Allegations
Although the record was closed in C.92-03-049, Westcom was permitted to present evidence on issues relating to the FGB services that it had ordered from Citizens during the 1989 to 1992 timeframe. However, for the reasons stated in the discussion portion of C.92-03-049, we decline to address the FGB billings prior to June 1, 1992, because at the time those disputed bills arose, Westcom reported 100% interstate usage for its FGB services. (7 R.T. 557) Since the interstate usage was reported as 100%, Citizens, in accordance with its tariff, applied the FCC NECA tariff to Westcom's FGB services. Since the FCC tariff was used, we have no jurisdiction to address the disputed FGB billings for the usage period from February 1992 through May 1992. We do, however, have the authority to review the usage from June 1992 until service was terminated on August 25, 1992 since Westcom changed its PIU to reflect intrastate usage. We also have the authority under § 453 to investigate Westcom's allegations regarding discriminatory practices with respect to the provisioning of FGB services.59
Since we have no jurisdiction to address the FGB billing prior to June 1, 1992, the following issues do not have to be resolved by the Commission in this decision: whether the evidence developed in C.92-09-006 and C.92-09-025 proves that Citizens was able to measure FGB terminating service at the time the disputed billings at issue in C.92-03-049 occurred; and whether Westcom was entitled to measured FGB terminating usage since Westcom had allegedly been assured that such measurement would occur.60 Although we do not have to resolve those two issues, we believe that it would be beneficial for the Commission to note in this decision our impressions about Citizens' FGB measurement capability. We believe that this digression is necessary so that anyone who reads the record in this proceeding will have a balanced and complete view of all of the evidence that was presented.
We do not believe that the evidence presented by Westcom in C.92-09-006 and C.92-09-025 has established that Citizens had FGB "full measurement capability" during the time period in question. Despite Westcom's assertion in its opening brief that Citizens was "fabricating one story after another," and that there was "an `immeasurable' number of contradictory, inconsistent and wholly incredulous statements by CUCC employees," a careful review of the record shows otherwise. (Westcom Opening Brief, pp. 6-7.)61
The witnesses who testified on behalf of Westcom regarding the switching capabilities of Citizens, had either no personal knowledge of all the various switches in Citizens' California network or the capabilities of the various switches. Foote and Ottaway testified that the usage records were not accurate and consistent enough to use for billing purposes. The switch materials and brochures that Sunde testified about came from the switch manufacturers, but none of those switch manufacturers testified, except for one Northern Telecom employee. (See 4 R.T. 181-184, 218-220, 225-228, 231-232, 244-248, 253, 259; 7 R.T. 633-634; 8 R.T. 664-671, 677-678; Ex. 1, pp. 26-27, 38-39, 49, 59, 65-66; Ex. 2, pp. 49-50, 61-62, 65-71, 73, 81-87, 89-91, 102, 104; Ex. 113, pp. 23-24.)
To the extent Westcom relied on Exhibits 9 and 126 to demonstrate how the DMS 100/200 switch interacted with the end office switches, the person who allegedly drafted those two documents, Randall Robertson, "Westcom's expert witness," was not made available by Westcom for examination. Westcom seeks to use Robertson's "affidavit" to prove that Citizens could measure FGB terminating traffic. (Westcom Opening Brief, pp. 11, 29-30; 5 R.T. 327-328, 331; 8 R.T. 667-671, 694; Ex. 9; Ex. 126.)
Rule 64 provides that although the technical rules of evidence ordinarily need not be applied, "the substantial rights of the parties shall be preserved." Westcom would like the Commission to give added weight to Robertson's affidavit, rather than to other testimony that was presented. However, Robertson was not made available as a witness by Westcom. For the Commission to give weight to Exhibits 9 and 126, without affording anyone the opportunity to cross-examine the person who prepared these exhibits, would not preserve the substantial rights of the parties.
William Diduch, a Northern Telecom employee, was called to testify on behalf of Citizens at the second hearing. Diduch, however, testified that without looking at the software listing for a given end office, he did not know whether Citizens had CAMA (centralized auto message accounting) recording capability in its DMS 100/200 switch. According to Diduch, the "use of CAMA is to track calls placed from a local calling area to a ... nonlocal calling area." In addition, he did not know whether Citizens' end offices in California had billing and recording functions. He also agreed that given his lack of familiarity with the details of Citizens' California network, and with the call structure codes for FGB and FGD, that he was not in a position to render an opinion on the ability of Citizens to measure FGB terminating traffic in its switches and end offices in California. (6 R.T. 532-533, 539-541.)
The testimony of the witnesses for Westcom, need to be compared with the testimony of the witnesses for Citizens. If an IEC did not order direct trunks to a specific end office for FGB service, then Citizens used combined trunks to provide the FGB service. The testimony of the Citizen witnesses established that Citizens DMS 100/200 switch did not use CAMA trunks or CAMA reporting. Without that type of capability, Citizens would not be able to record a terminating FGB AMA record from the end office. In addition, the end offices which used the DMS-10 switches did not have the software to generate a Call Structure Code 135. A Call Structure Code 135 refers to a terminating FGB AMA record. Without this code from a DMS-10 switch, there would be no way of measuring the call as a FGB type call. Other end offices used the Stromberg Carlson DCO switches. The DCO switch at generic level 14 did not have the capability to generate a Call Structure Code 135 unless there were direct trunks. If Westcom had ordered direct trunks to the end offices, rather than to the tandem, then measurement of Westcom's terminating usage could have taken place. (5 R.T. 281-283, 332, 335-338; 6 R.T 496-510, 516-517, 519, 522, 524, 546; 7 R.T. 556, 573-574, 597-600, 634; 8 R.T. 682-683; Ex. 1, p. 49; Ex. 8, p. 12, 15-17, 20-23, 26-28, 30; Ex. 12, pp. 17-24, 34-38; Ex. 59; Ex. 65, pp. 1, 3; Ex. 66; Ex. 69; Ex. 70; Ex. 75, p. 19; Ex. 127, Responses to 5b and 11; See 3 R.T. 109-113, 137-141.)
Based on the evidence presented in all three complaint cases, we cannot conclude that Citizens had the ability to actually measure Westcom's FGB terminating usage during the time period at issue in the complaints before us.
Westcom asserts that when it submitted Exhibit 38 to Citizens, it specifically requested that its trunks be changed to two-way and that it be measured. 62 Since Westcom's ASR included the words "measured billing," it contends that measured billing should have been provided. Westcom contends that this "ASR constitutes a contractual agreement between the parties," and that Citizens' "inability to provide the service as ordered by Westcom ... constitutes an unlawful, unilateral change in the contract terms."
The following is the evidence that was produced on this issue. Sunde testified during the second hearing that he spoke to Howell and Foote about Exhibit 38, Westcom's order to change its FGB circuits to two-way "with measured billing." Sunde testified that "I was assured that it would be processed properly and that, yes, they felt measurement was going to be provided." (5 R.T. 402-403.)
Foote testified that prior to the equal access cutover, she told Sunde that Citizens could measure FGB terminating usage. Her understanding of this capability came from a Citizens engineer, Roy Ledford. She also testified that the other staff "was under the impression that at cutover we would have this capability." This impression came from the assumption that the new equipment that Citizens had purchased would provide the capability to measure FGB terminating usage. (4 R.T. 159, 182-184.)
Jean Russell, a Citizens employee, testified that Exhibit 58 came from Westcom, and that the second page of the ASR indicated that Westcom wanted two-way trunking. Even though the ASR indicated "measured calling," Russell agreed that those words had no meaning from the standpoint of the engineering department. Instead, she said it is the tariff which governs how traffic will be measured off a particular access route. (6 R.T. 512-514.) Innes also agreed that whether a service is measured or not is determined by the capability of the LEC, and not by the order of the IEC. (7 R.T. 556.)
A review of Exhibit 58 shows that the changes were to the Susanville and Elk Grove access tandems. Even though Foote indicated to Westcom that the FGB terminating traffic could be measured, Westcom did not order any direct trunks to the end offices so that actual measurement could take place.
We are also not convinced by Westcom's argument that billing FGB terminating usage on an assumed basis was in Citizens' financial interest. Prior to July 1, 1992, Citizens subscribed to the NECA tariff. Whatever money that was collected on the basis of the interstate tariff went back into the NECA pool. According to Foote's testimony, the "companies then get back their expenses, cost and profit." (3 R.T. 6-7; 4 R.T. 194-195, 269.) She also replied "No" to the following question asked by Sunde:
"Would a company that participates in the NECA pool benefit by billing one method under a tariff or another; for instance, the assumed minutes of use or the actual usage." (4 R.T. 195.)
2. FGB Bills for June 1992 Through August 1992
We first note that neither Westcom nor Citizens sought to introduce the FGB billings from Citizens to Westcom for FGB usage for May through August 1992, and there was no testimony on what tariffs were used to bill the intrastate portion during that time period. Based on Exhibit A to Westcom's First Amended Complaint to C.92-09-006, and Citizens' answer to that amended complaint that Westcom submitted a new PIU, and that "notification was issued to Westcom on July 6, 1992 that the PIU would be instituted effective with the June Usage (July Bill) 1992 FGB billing," we assume that the FGB bills for usage from June through August 1992 were partially billed using PacBell's 175-T tariff on file with this Commission.
With that assumption in mind, we first address Westcom's argument that Citizens waived its right to bill FGB terminating usage on an assumed minutes of use basis. In June 1992, Westcom changed its PIU to reflect intrastate usage of 83% in the Elk Grove area and 90% in the Susanville area. (7 R.T. 557-558, 560.) According to page 2 of Exhibit A in Westcom's First Amended Complaint, Citizens applied a 13% PIU to Westcom's FGB billing effective with the June 1992 usage. Thus, this waiver issue needs to be resolved in the context of the FGB bills that were rendered by Citizens to Westcom for usage in June through August 1992.63
PacBell's 175-T tariff allows the use of assumed measurement when there is no measurement capability available. Since this tariff was in existence throughout the 1989 to 1992 timeframe, Citizens had the right to bill Westcom using assumed measurement for FGB terminating usage. Westcom's waiver argument must also fail because Citizens had the right to back bill, as we discussed in the C.92-03-049 discussion. We therefore conclude that Citizens did not waive its right to bill Westcom for FGB terminating usage on an assumed minutes of use basis for the period from June through August 1992.
The second issue that arises in the context of the FGB bills for this time period is whether Westcom has proven that it is entitled to a credit of $12,997. Exhibits 107 through Exhibit 110 are patterned after the same kind of documents which Westcom used to support its claim for credits in C.92-03-049, and which were discussed in the C.92-03-049 section of this decision. Exhibits 107 through 110 lack the call detail necessary to allow Citizens to audit its calling records. In addition, the joint timing tests that were conducted in connection with C.92-03-049 did not reveal any problems with Citizens' recording and billing capabilities. Therefore, we conclude that Westcom has not met its burden of proof regarding the FGB billings for June through August 1992.
The third issue is whether the FGB bills for June through August 1992 should be rendered void because of Citizens refusal to change Westcom's FGB service to originating only. As discussed later, in order to effectuate the change sought by Westcom, Citizens, in accordance with the tariff, demanded a deposit from Westcom due to its late payment history. Westcom failed to tender the requested deposit. We therefore find that to the extent that FGB terminating usage was billed to Westcom on an assumed minutes of use basis for the period from June through August 1992, Westcom could have avoided those bills by tendering to Citizens the deposit that Citizens demanded.
We note that Westcom's opening brief at pages 34 to 38 reargued the evidence that was presented in C.92-03-049. Since Westcom had a previous opportunity to argue the evidence developed in the first hearing, and because the record was closed in that proceeding, we will ignore the arguments contained in the sections labeled "Westcom Switch Timings" and "Prior Testimony In C.92-03-049" to the extent they simply reargue how the evidence in C.92-03-049 should be interpreted.
3. Allegations Regarding Discrimination
a. Billing Assumed FGB Termination Usage
We next address Westcom's allegation that Citizens discriminated against Westcom by billing FGB terminating usage on an assumed minutes of use basis.
According to Citizens, the tariff requires measurement at the entry switch or the first point of switching. Marr testified that if a carrier had ordered their circuits connected to the tandem, the entry switch would be the tandem. But if common trunks64 are used to carry the traffic to the end office, the tandem would not be able to derive individual billing for each carrier that uses the common trunks to terminate FGB traffic. If the IEC ordered direct trunks into an end office, the recording would take place at the end office. Marr is not aware of Westcom ordering circuits to places other than the tandem. (5 R.T. 324, 332, 340-344; See Ex. 3.) Russell corroborated Marr's testimony by stating the access tandem measures minutes for the end offices for the NXXs located within the 100/200 switch. But if the NXXs are located outside the location of the access tandem, i.e., the call is going through the tandem to another location, the access tandem "is not able to record it because the carrier identification information is not passed on to the end office." The end office can only record FGB if it is a dedicated trunk. (6 R.T. 505-506, 522, 524.) As discussed earlier, the switch at the end offices did not have FGB terminating measurement capability during the time period in question unless the IEC ordered direct trunks to the end office, which Westcom didn't.
In late 1991 and the early part of 1992, Citizens management determined that some FGB terminating usage had not been billed since the equal access cutover. Ottoway testified that from the information he obtained in various meetings with different departments, Citizens did not have the proper configuration or translations to provide accurate measurements for billing purposes for FGB terminating traffic. (4 R.T. 218-219.) He further stated that if there is a problem with the software, or with the actual records, or any type of errors, then an accurate billing to the IEC could not be prepared. (4 R.T. 226.) Foote also testified that the call records for the terminating side "is where most of the problems were." She stated that "I doubt whether we have got a good, clean terminating Feature Group B report." (Ex. 1, pp. 58-59, 61, 65.) She was also at meetings with others from Citizens where they discussed whether they were receiving correct measured usage or not. If they were not, "then you have to fall back on assumed usage."65 (Ex. 1, pp. 23-24, 31-32, 38-39.) As a result of these kinds of inconsistencies, Citizens made a decision "around the first part" of 1992 to bill according to the tariff, which allowed the use of assumed minutes for FGB terminating usage when actual usage could not be measured. This became effective in February 1992. (3 R.T. 27; 4 R.T. 231-232; 6 R.T. 545-546; Ex. 75, p. 26; Ex. 111, p. 15; Ex. 112, pp. 29-30; Ex. 113, pp. 24-25; See Ex. 33, § 6.6.4.)
According to Ottaway, all carriers whose FGB terminating usage could not be actually measured, were billed on an assumed minutes of use basis. (4 R.T. 231-232; Ex. 2, pp. 74, 78-79, 98; See Ex. 112, p. 35.) Since all carriers whose terminating FGB traffic could not be measured, were billed on an assumed minutes of use beginning with the February 1992 usage, we conclude that Citizens did not grant any preference or advantage to another carrier, or subject Westcom to any prejudice or disadvantage in violation of § 453.
b. Placing "Assumed" on the FGB Bills
The next § 453 issue is whether Westcom was prejudiced or disadvantaged by the failure to include the words "assumed method" on Westcom's bill for FGB services.
Ottaway testified that Citizens only inserted the word "assumed" on a bill if both the originating and terminating usage were being billed on an assumed minutes of use basis. (4 R.T. 248; Ex. 2, pp. 93-94, 98-99.) At the hearing Foote testified that Citizens chose not to insert the word "assumed" on the bill because there was a mixture of actual measurement and assumed measurement. She explained that "saying assumed was no more correct than just leaving it alone." (4 R.T. 186.) In her deposition, she said: "You can't say assumed minutes on the front of the bill when it is part measured and part assumed, then you are not wrong and you are not right." (Ex. 1, pp. 32-34.) Foote also acknowledged that at the time Citizens began billing Westcom terminating usage on FGB, there was a mixture of both assumed terminating usage and actual measurement of originating usage. (4 R.T. 186-187.)
Sunde testified that the insertion of the words "Assumed Minutes of Use Method" could have been easily inserted on the FGB bills, as he
tried to demonstrate with the use of Exhibits 5 and 37. 66 However, Westcom's insertion of these words onto a monthly bill only demonstrates that it was easy to insert the words using the software program. It does not demonstrate that Citizens should have or was obligated to insert such words onto the face of the bill.
We conclude that Citizens did not subject Westcom to any prejudice or disadvantage by not including anything on Westcom's FGB bills which would have indicated that some of the usage was being billed on an assumed minutes of use basis. Based on Ottaway's testimony, it appears that the same policy applied to other carriers who were billed assumed terminating FGB usage.
c. Notice of the Billing of Assumed FGB
Terminating Usage
Westcom contends that it had no notice that it was being billed on an assumed minutes of use basis until the hearing was held in C.92-03-049 in June 1992. Westcom asserts that Citizens should have sent out notices informing its customers that billing of FGB terminating usage had begun.
As we discussed earlier, Citizens' access service tariff provisions permit the use of assumed measurement when there is no measurement capability. These tariff provisions were in effect at the time Citizens started to bill for assumed terminating FGB usage. Since it appears that Citizens did not inform any of its switched access customers that it planned to start billing in this manner, Citizens' failure to send advance notice to Westcom of its intention to bill FGB terminating usage on an assumed basis did not subject Westcom to any prejudice or disadvantage.
d. Citizens' Demand for a Deposit
The next § 453 issue is whether Citizens request for a deposit from Westcom subjected it to prejudice or a disadvantage. PacBell's access service tariff provides in pertinent part:
"The Utility will, in order to safeguard its interests, only require a customer which has a proven history of late payments to the Utility or does not have established credit, to make a deposit prior to or at any time after the provision of a service to be held by the Utility as a guarantee of the payment of rates and charges." (PacBell, CPUC No. 175-T, § 2.4.1(A).)
The NECA tariff, which Citizens subscribed to, contains a similar deposit requirement. (See NECA FCC No. 5, § 2.4.1(A).)
We first address Westcom's argument that the tariff sections covering deposits were intended to apply to orders for new service only, and not to change orders. A review of the PacBell tariff and the NECA tariff establishes that Westcom's argument is without merit. Both tariffs provide that whenever there is a proven history of late payments to the utility, a deposit can be required "prior to or at any time after the provision of a service." That tariff language clearly allows a deposit to be collected before a service is started, or any time after the service is provided. In addition, the provisions of § 2.1.8 of both the NECA tariff and the PacBell 175-T tariff specifically provide that LEC can "refuse to complete any pending orders for service."
As noted in D.92-08-028 at page 14, Citizens sent two notices to Westcom on February 26, 1992. Those notices informed Westcom that "current and future service may be discontinued upon 30 days receipt of this notice," and that a "deposit may be required to reinstate service." The letters also stated: "be advised that no further contact or notice is required prior to discontinuance of service if payment is not received as specified in the above notice." (Westcom Complaint In C.92-03-049, Ex. 1; Citizen Answer To C.92-03-049, Ex. D.) Thus, Westcom was informed by Citizens in late February or early March 1992 that it could "refuse additional applications for service and/or refuse to complete any pending orders for service, and/or discontinue the provision of service to the customer." (FCC No. 5, § 2.1.8; See PacBell 175-T, § 2.1.8.)
Sunde acknowledged on cross-examination that Exhibit 72 showed that Westcom did not pay its bills in a timely manner. Sunde also testified that Westcom did not pay nondisputed charges in a timely manner. (6 R.T. 429-431)
We conclude that Citizens did not subject Westcom to any prejudice or disadvantage when it demanded a deposit from Westcom.
e. Citizens' Refusal to Change the FGB
Service to Originating Only
We next address Westcom's contention that Citizens' refusal to process Westcom's request to change its FGB trunks from two-way to originating only, but its acceptance of Westcom's PIU change, subjected Westcom to a disadvantage or prejudice. A brief review of the exhibits and testimony is needed in order to address this issue.
Exhibit 32 is page 5 of Citizens's answer to Westcom's first amended complaint in C.92-09-006. Exhibit 32 reflects the position that Citizens' took with respect to why Citizens accepted Westcom's change in the PIU, but did not process Westcom's request to change its FGB trunks to one-way. Citizens' answer states in pertinent part:
"CUCC denies Westcom's allegation that CUCC's acceptance of Westcom's change of PIU contradicted CUCC's position regarding acceptance of a change order. CUCC considered Westcom's request to update their PIU, strictly a part of their responsibility as an interexchange carrier under applicable tariff provisions. Westcom's request for changing their trunks to one-way originating, however, requires issuance of an ASR and a definite change of service. Westcom's request for change of trunking would also result in billing of service order and installation charges for which CUCC had no reasonable expectation of collecting."
In Westcom's letter to Citizens dated June 4, 1992, Westcom requested that its FGB trunks in Susanville and Elk Grove be changed to originating only as soon as possible. This occurred following the last day of hearing in C.92-03-049 and after Westcom "ascertained what Citizens was doing to us as far as our billing was concerned." (5 R.T. 392-293.) Attached to the letter were three ASR pages. (Ex. 29.) Someone at Citizens received the June 4, 1992 letter. (7 R.T. 569.)
On June 5, 1992, Innes replied to Westcom's June 4, 1992 letter, which Sunde acknowledges receiving. (5 R.T. 393; 7 R.T. 570.) In that letter, Citizens stated in part:
"However, the ASRs attached to your letter, are not properly completed and do not comply with tariff provisions for ordering Feature Group B service. Therefore, we request that you resubmit your ASR's, complying with all applicable tariff requirements. To aid you in rectifying your omissions, I am enclosing, as Attachment A, copies of the applicable NECA tariff sheets governing ordering of access service.
"Upon receipt of properly initiated requests, we will be happy to provide the estimated due dates you requested in your letter. Please note that Citizens' normal service interval is 30 working days and customer requests for expedited provisioning will normally cause the application of the expedited order charges cited in the tariff. Please consider this when redrafting your ASRs.
"Please note that you were previously notified of the Company's rights under Section 2.1.8 of the NECA tariff. (See Attachment B.) That section allows the company to refuse additional applications for service when a carrier is not in compliance with tariff rules. Citizens has in no way waived its rights under Section 2.1.8 of the tariff. " (Ex. 30.)67
After reading the June 5, 1992 letter, Sunde called Innes and asked him what he thought was missing. Innes informed him that the PIU was missing. Sunde replied that Westcom would provide it. (5 R.T. 393.)
On June 8, 1992, Innes again wrote to Westcom. (7 R.T. 570.) Sunde acknowledges receiving a copy of this letter. (5 R.T. 394.) The June 8, 1992 letter stated that Citizens had the right under its tariffs to require any customer with a history of late payments to post a cash deposit, and that such a deposit may not exceed two month's actual or estimated rates and charges for service. Based on Westcom's latest bills, two months' of charges amounted to $23,392.11. Citizens demanded that Westcom deposit the sum of $23,390. The letter also informed Westcom that the "failure to render this payment will result in Citizen's refusal to process any further orders for access service, as provided in Section 2.1.8 of the NECA tariff and Section 2.1.8 of the Pacific Bell tariff 175-T." (Ex. 31.)
After receiving the June 8 letter, Sunde called Innes and asked him about Citizens' demands. Sunde testified that the attempt to reduce Westcom's monthly bill by $6,000 to $8,000 per month by changing its FGB trunks to originating only was refused, even though Sunde "offered to pay the $1500 or so [in] nonrecurring charges to cover the installation at that point in time." As a result, Citizens continued to bill Westcom "as much as possible." (5 R.T. 394-395.)
Innes testified that he decided to reject Westcom's ASRs because:
"Our tariffs, both the NECA tariff and the 175-T tariff, which were then in effect permit the company to either deny service or refuse to process any new requests for service for any customer who fails to meet payment arrangement as described in the tariff.
"Westcom had failed to do or to meet those requirements for several months. Therefore, to protect the interests of the company and its customers, we refused to process any further service orders for Westcom." (7 R.T. 553-554.)
Although Sunde testified that he "offered to pay the $1500 or so" in non-recurring charges, Innes does not recall Sunde ever offering to pay the non-recurring costs associated with the ASRs. (5 R.T. 394; 7 R.T. 554; Ex. 75, p. 22.)
As discussed in the C.92-03-049 discussion, the obligation to change the PIU rests with the IEC. If the PIU reflects intrastate usage, then the billing for the service must reflect the appropriate percentage of intrastate use. Thus, Citizens' acceptance of the PIU change was consistent with the PIU tariff provisions.
Citizens had the right to refuse Westcom's request to change its FGB service to originating only when Westcom failed to tender the deposit that Citizens demanded. Westcom had notice in late February or early March 1992 that Westcom's current or future service could be terminated and that a deposit could be requested. In June 1992, Citizens demanded a deposit of $23,390 in accordance with the tariff provisions. This deposit amount was not tendered to Citizens, and in accordance with its tariffs, Citizens refused to process Westcom's order.
Even if Westcom had offered to pay $1500 to $2000 to Citizens to change its FGB trunks from two-way to one-way, Citizens was within its rights under the tariffs to refuse to process Westcom's order because Westcom's offer of $1,500 was less than the required deposit amount. Accordingly, we conclude that Citizens' refusal to process Westcom's request to change its FGB trunks to one-way, but its acceptance of the PIU change, was in accordance with its tariff provisions, and that Citizens did not subject Westcom to any prejudice or disadvantage.
Westcom's argument that it attempted to mitigate its FGB terminating usage liability by submitting its request to change its trunks to one-way, does not change our view of the deposit demanded by Citizens. Under the tariff, Citizens had the right to demand a deposit. Westcom's failure to tender the deposit authorized by tariff should not operate in a manner which mitigates Westcom's liability for FGB terminating usage.
We next address Westcom's argument that Citizens' refusal to change its FGB trunks from two-way to one-way was "unconscionable" and "an unlawful adhesive contract,"and that the tariff provisions were unjust, unreasonable and unlawful. (Westcom Opening Brief, pp. 5, 62-64.) Westcom's arguments ignore the fact that the laws pertaining to tariffs apply, and that the contract issues which Westcom raised with regularity in its opening brief, do not apply to filed tariffs. 68 Since the tariff has the force and effect of law, it is the tariff, and not contract law, which governs the terms and conditions of service. 69 (Trammell v. Western Union Telegraph Company (1976) 57 Cal.App.3d 538, 549-551; Dyke Water Co. v. Public Utilities Commission (1961) 56 Cal.2d 105, 123; Dollar-A-Day Rent-A-Car Systems, Inc. v. Pacific Telephone (1972) 26 Cal.App.3d 454, 457.) As the courts of this states have held, tariffs are strictly construed and no understanding or misunderstanding of either or both of the parties is enough to change the rule. (Transmix Corp. v. Southern Pacific (1960) 187 Cal.App.2d 257, 264.)
As discussed above, Citizens actions were in accordance with the tariff. A deposit can be required of a carrier with a proven history of late payments "prior to or at any time after the provision of a service." The deposit requirement, which was contained in the tariffs that Citizens subscribed to, applied to all access service customers, and did not single out Westcom. Thus, Westcom's adhesion and unconscionability arguments must fail.
f. Credit Check of Westcom's Customers
Westcom alleges that its customers were asked for credit information. The only evidence that Westcom provided on this issue is contained in the last page of Exhibit 27. The pertinent portion of Exhibit 27 states:
"When Citizens finally agreed to change me to ComSystems they required full credit information prior to changing my long distance carrier. They asked for Social Security No., Drivers license No. and other information."
Susan Hughes, the Business Office Manager for Citizens, testified both in her deposition and at the hearing that when a customer makes contact with Citizens' business office, the customer's history screen is accessed. If there is no current credit history, or it appears that the credit history has not been updated for some time, the service representatives are to obtain current customer information. That is true for any contact with the customer billing office, irrespective of whether it has to do with any PIC change or not. (7 R.T. 616-617; Ex. 114, p. 27.)
Based on the evidence presented, we conclude that Citizens did not disadvantage or prejudice any Westcom customer by requesting credit information from the customer.
g. 700 Dialing
We turn next to Westcom's allegations regarding 700 service. Two issues have been raised about 700 service. The first issue is that "Innes demanded payment of a deposit of $23,390. and Westcom's balance of $34,478.59 in full prior to providing 700 service to Westcom." (Westcom Opening Brief, p. 49.) Westcom cites Exhibit 42, the June 8, 1992 letter from Innes to Sunde, in support of this assertion. Westcom points out that Innes stated in this exhibit: "I have been advised that 700 service can be made available if properly ordered and your account is brought into compliance with tariff provisions regarding payment arrangements and deposits." The letter also demanded an ASR, and that Citizens would not be able to advise Sunde about the timing of the 700 availability until Westcom submitted a completed ASR. Westcom also points out that in Citizens'Answer to Westcom's First Amended Complaint, Citizens admitted that Westcom's request for 700 service was refused. Westcom contends that 700 service is automatically included as part of FGD service, that Innes' letter constituted "an unlawful, extortionist demand, and that Innes' later testimony contradicted Citizens' earlier position.
The second 700 service issue concerns alleged blocking of this service by Citizens. This 700 dialing problem first came to Citizens' attention on or about June 6, 1992. Although none of the parties made Westcom's June 6, 1992 letter to Citizens an exhibit in this proceeding, Innes' letter of June 8, 1992 (Exhibit 42) and his testimony described what Westcom had requested in the June 6, 1992 letter. Innes' testified as follows regarding Sunde's letter of June 6, 1992:
"Then we received in a letter dated June 6th, addressed `Dear Sir,' the assertion that Citizens is not currently passing 700 numbers through your switch in Susanville, parenthetically, and probably Elk Grove as well, close parens. This is required for equal access customers to identify their long distance carrier. Please program that capability as soon as possible." (7 R.T. 555.)
Innes testified that this letter was received shortly after a "flurry of activity" following the hearing in C.92-03-049. Citizens first heard from Sunde asking for a change in his trunking. Citizens then heard from Sunde regarding a change in his PIU. Then Sunde's letter of June 6, 1992 was received. (7 R.T. 554-555.)
Innes testified that when Citizens investigated the letter, it found that the 700 service was functioning perfectly in both Elk Grove and Susanville. When Innes received a telephone call from Sunde regarding his request to provide Westcom with 700 service, Innes knew that Westcom already had 700 service and that it was operating properly. Innes further testified:
"Due to the flurry of activity and, I guess, my concern that we had an allegation here that was untrue, that 700 was not working properly, I asked Mr. Sunde to redo his request in writing in the form of an ASR, that it could be properly processed and examined by the company.
"In the letter back to Mr. Sunde, I also reminded him that I had previously sent a letter to him demanding a deposit for $23,000 and that 700 service was not be be used for intraLATA calling." (7 R.T. 555-556.)
The other 1 + 700 dialing problems came up during the hearing. Exhibit 27 is a collection of "trouble reports" that Sunde testified that he compiled as a result of conversations he allegedly had with Westcom's customers. Some of these trouble reports were signed by the customers, and others were not. (5 R.T. 375-378, 380-382.) Five of the trouble reports specify problems with 1 + 700 dialing.
The 700 dialing problem was also addressed during the hearing by Allen Royce, a witness called by Westcom. He testified that around November 11, 1992, he experienced difficulty dialing long distance numbers. He was using the "speed dialing" on his phone to place the call. Exhibit 28 is the "Trouble Report" that Westcom apparently recorded in connection with the problems encountered by Royce. (5 R.T. 350-360.) Exhibit 28 described problems with 1 + 700 dialing, that long distance calls could not be made, that the 10266 (Com Systems) dialing was blocked with a message of "916257," and that when 10288 (AT&T) plus the number was dialed, the call went through. Royce also testified that he spoke to someone from Citizens that afternoon, who said he was a switch operator, and that he had inadvertently interrupted Royce's service, and asked him to try it again. After that call, Royce's phone worked properly. (5 R.T. 355-356.) Exhibit 28 also reflects that Citizens corrected the problem.
Some of the 700 dialing problems contained in Exhibit 27 appear to have occurred around the same time that Royce was encountering problems, and which were brought to Citizens' attention by Westcom in Exhibit 105. (5 R.T. 382.)
We first address Westcom's contention that Exhibit 42 was nothing but an "unlawful, extortionist demand" since 700 dialing was already part of Westcom's FGD service.
The evidence is clear that 700 dialing is included as part of FGD service. In Citizens' answer to Westcom's First Amended Complaint, which was filed December 30, 1992, Citizens admitted at page 6 that:
"CUCC has included 700 dialing as a part of its FGD service and at no time has 700 dialing been blocked in CUCC's system. Any inability by Westcom's customers to dial 700 is the result of flaws in Westcom's system, not CUCC's.
Innes' had his deposition taken, and he also testified at the second hearing. In his testimony, he acknowledged that 700 dialing was part of FGD service. (7 R.T. 555-556; Ex. 75, p. 14-15.) This testimony is consistent with Citizens' answer to Westcom's First Amended Complaint. Ottaway's deposition also corroborates Innes' understanding. Ottaway stated that Innes had told him that Westcom was attempting to order 700 service, and that Westcom already had that service but didn't realize it. (Ex. 2, pp. 27-28.)
Westcom's argument that Exhibit 42 subjected Westcom to an unlawful demand by requiring a deposit, is without merit. Out of concern that Westcom was alleging that 700 dialing was not working, Innes asked Westcom to submit an ASR. Although Citizens could have written its letter differently to recognize that 700 dialing was already available, the demand for a deposit was not unlawful, as discussed earlier in this decision.
Nor are we persuaded by Westcom's argument that Exhibit 42 demanded that Westcom's balance of $34,478.59 be paid in full. There are two sentences in Exhibit 42 which address the "customer deposit" and "payment arrangements and deposits." Those sentences state:
"For this reason, I refer you to the NECA tariff for ordering instructions and my letter of June 8, 1992, for our request for customer deposit which will be necessary due to Westcom's continuing refusal to pay Citizen's bills.
"I have been advised that 700 service can be made available if properly ordered and your account is brought into compliance with tariff provisions regarding payment arrangements and deposits." (Ex. 42.)
The NECA and PacBell tariffs regarding deposits are located under the general heading of "Payment Arrangements and Credit Allowances" and the subheading of "Payment of Rates, Charges and Deposits." (See NECA FCC No. 5, § 2.4; PacBell No. 175-T, § 2.4.) The reference in the second sentence quoted above to "payment arrangements and deposits" appears to be a summary and combination of the general heading and subheading of the applicable tariffs. Although the second sentence quoted above could be read to imply that "payment arrangements" means the disputed amounts, the first sentence quoted above puts Exhibit 42 into perspective. When the deposit "letter of June 8, 1992," Exhibit 31, is read in conjunction with Exhibit 42, it is clear that Exhibit 42 was only referring to a deposit of $23,390 and not to Westcom's balance of $34,478.59 in full as asserted by Westcom.
Even though Exhibit 42 suggests that 700 service would not be made available unless a deposit was tendered, Westcom was not subjected to any prejudice or disadvantage under § 453 as a result of Citizens' demand for a deposit. That is because Westcom's 700 service was functioning perfectly, according to Innes.
The alleged blocking of Westcom's customers from using 700 dialing is based upon Westcom's letter of June 6, 1992, and several pages in Exhibit 27. Exhibit 27 is a "combination of trouble reports" that Sunde filled out when he talked to the people listed on the reports. With the exception of James Jeskey, no depositions were taken of the persons whose names appear in Exhibit 27. (5 R.T. 375, 380; See Ex. 17.) Westcom argues in its opening brief that the last page of Exhibit 27 shows that Robert Meacher, a Westcom customer, had called Citizens on or about September 16, 1992 because the 700 number was not working.70 According to that document, "Citizens told me that the California Public Utilities Commission had authorized Citizens to block the 700 number due to pending litigation."
Additional evidence of the 700 dialing issue can also be found in Exhibit 2. During the deposition of Ottaway by Sunde, Exhibit D was used as an exhibit in Ottaway's deposition. Exhibit D is a Citizens' "Incident Report" which shows that on November 11, 1992, Sunde called Mark Shine of Citizens to report blocking of 700 and 10266 calls. 266 is Com Systems' PIC number, which Westcom used after Citizens terminated Westcom's access services. According to Exhibit D, Citizens ran a test on November 11, 1992 by using a telephone with a Com Systems 266 PIC. When the number 1+ 700 + 555 + 4141 was dialed, "the call routed to ComSystems correctly and the ComSystems greeting was received." Additional test calls were made the following day.71 When calls were placed by dialing 10266 + an interLATA call, Citizens reached a message which stated: "Welcome to ComSystems, please dial 1+ 800 + XXX + XXXX to establish service." When attempts were made to dial 10266 + an intraLATA call, it resulted in a recorded announcement at the Susanville tandem (916)257. The Incident Report concludes by stating:
"These test call results indicated that on an intraLATA call, the customer will get a recorded announcement when dialing 10266 + because Interexchange carriers are not currently allowed to carry intraLATA traffic. Dialing 10266 + for interLATA calls is not blocked at the Susanville tandem, but reaches a recording at ComSystems facility."
Innes testified that after receiving Westcom's June 6, 1992 letter, Citizens investigated Westcom's 700 dialing allegation, and found it to be working in both Elk Grove and Susanville. (7 R.T. 555.) This was also supported by the testimony of Raymond Harrell, who stated that Citizens could not selectively block 700 access to individual customers wanting to use 700 access.
Harrell also testified that he undertook a study of 700 calling on behalf of Citizens. Harrell asked Citizens' MIS department to obtain some data from 459 PIC customers regarding their use of 700 dialing. A 459 PIC customer is a Westcom customer. Harrell randomly selected a date. Exhibit 61 is a list of the calls that the MIS department generated in response to Harrell's request. The first record shown on Exhibit 61 had the date of July 10, 1992, and the last record had the date of July 16, 1992. Harrell testified that Exhibit 61 shows 200 calls being made during that timeframe from telephone numbers within Citizens' territory using the 700 number to make intraLATA calls. (7 R.T. 602-603.)
All of the evidence mentioned above suggests that Citizens was not blocking Westcom's customers from 700 dialing. Although some of Westcom's customers may have experienced 700 dialing problems around the early part of June 1992, around September 16, 1992, and November 11, 1992, the evidence is insufficient to allow us to find that Citizens blocked 1 + 700 dialing while Westcom was still an access service customer, and after Westcom started to use Com Systems' 266 PIC.
Citizens contends that the blocking of the 700 dialing was a result of the use of autodialers by Westcom's customers. A former Westcom employee, Arthur Scott, was called to testify on Citizens' behalf. He worked for Westcom for about 18 to 20 months, and his employment ended around March 1992. Scott has over 15 years of telephone experience. While employed by Westcom, he was responsible for installing and maintaining auto dialing equipment. The autodialers were used to route 1 + calls to Sunde's switch. Scott testified that the autodialers that he worked on had the ability to activate themselves to dial the access number to Sunde's switch after a 1 + call is dialed. Both 1 + 10 and 1 + 7 calls were routed to call Westcom's switch. Scott testified that a 1 + 7 call would be an intrastate as well as an intraLATA call. Scott testified that Sunde never told him not to program the autodialers so that they would not be able to pass the digits necessary for an intraLATA call. Scott's rough estimate is that "around 70 percent" of Westcom's customers had autodialers in the 1991 to 1992 timeframe. He was also "sure that almost every business customer, especially in the over-$100-bill-a-month category, would have had a dialer installed." (7 R.T. 586-588.)
Scott was asked to describe what would happen if Westcom's access service was terminated, and one of the preprogrammed autodialers was still in use at the time that Westcom's customers were switched over to Com Systems. Scott replied:
"Well, the dialer would still see the 1, and it would seek to route it to Mr. Sunde's switch, and of course be denied because there was no connection between, let's say, Citizens and Mr. Sunde's switch, but the dialer would still be trying to send it there. So therefore, the call could not be completed."
Scott went on to state that even if a PIC change was made to a customer, the autodialer doesn't care about the PIC, and it would still dial the access number. In addition, if a customer tried to dial the PIC number (10XXX) to access the long distance carrier, the autodialer would recognize the "1" and activate and try to send the call to Sunde. (7 R.T. 589-590; See 8 R.T. 656.)
On rebuttal, Sunde disputed Scott's estimate of the number of Westcom customers who had autodialers. Sunde stated that only about 12 to 15% of its customers had autodialers. (8 R.T. 653, 656; See 6 R.T. 470.) Sunde also denied that he provided any special assistance to Scott to program the autodialers for intraLATA purposes. Sunde also stated that he personally did "not know how to program any of those dialers," and that the Westcom installers obtained "dialer programming instructions directly from the factory" to learn how to program the dialers. (8 R.T. 658.)
Instead of autodialers, Sunde states that he purchased hundreds of phones with memory for his customers, as shown in Exhibit 121. That exhibit shows that approximately 190 phones were purchased during the 1989 to 1990 timeframe. Sunde said that the customers used these phones to access Westcom's network. (8 R.T. 653-654.) Of the 10 Westcom customers that Citizens deposed, five of the ten testified that they did not have autodialers or equipment installed by Westcom. (See Ex. 17, p. 7; Ex. 18, p. 9; Ex. 20, p. 6; Ex. 21, p. 8; Ex. 25, p. 14.)
We do not find convincing Westcom's argument that the 700 blockage was caused by Citizens. The testimony shows that Citizens investigated the blocking allegations, and could not detect any problems with Citizens' equipment. The problem appears to have been with a Citizen "switch operator" as alluded to in Royce's testimony, or in the way in which Westcom's customers were trying to dial an operable access number, or an intraLATA call.
The evidence shows that of the ten Westcom customers who were deposed, three of the four business customers had autodialers with certain preprogrammed telephone number settings to access Westcom's switch. (See Ex. 19, pp. 10-12, 19-20; Ex. 22, pp. 11-13, 15; Ex. 24, pp. 8, 26-27.) Royce, another business customer of Westcom, also testified that he had an autodialer as well. (5 R.T. 352, 356, 360.)
The use of autodialers with the preprogrammed access numbers may have caused the blocking problems encountered by Westcom's customers when they started to use 1 + 700 dialing to make calls. Exhibit 60, which was mailed out by Westcom to "perhaps 20 or 30 or 40" of its customers described how customers could use 1 + 700 dialing to make intraLATA calls. (6 R.T. 462-464.) Exhibit 60, which is undated, appears to have been mailed out by Westcom prior to July 9, 1992. (See Westcom Answer To C.92-09-025, Exhibits H and I.) Exhibit 60 specifically references autodialers by stating:
"The new 700 procedure now works in many areas and should work in all areas shortly. The end result of this new, easier dialing protocol is that auto dialers have now become obsolete and unnecessary. Westcom will begin removing all auto dialers very shortly." (Ex. 60.)
Exhibit 60 supports Citizens' contention that some of Westcom's customers were still using autodialers prior to July 9, 1992. Sunde's testimony also reveals that Westcom began to reprogram the autodialers around the time frame when the cutover to Com Systems occurred in August 1992. Sunde also acknowledged that a customer could"have had certain difficulties making calls if the dialer had not been either removed or reprogrammed...." (6 R.T. 471-472.)
As for the problem experienced by Royce and others around November 11, 1992, Citizens appears to have investigated the problem and nothing wrong could be detected. It also appears that a Citizens' "switch operator" or repair person inadvertently turned off Royce's long distance service, but turned it back on in the afternoon.
We also note that Sunde's testimony regarding his lack of knowledge about programming the autodialers is inconsistent with other parts of his rebuttal testimony. Sunde testified that Westcom was in the remanufacturing business for autodialers, and once had 10,000 to 12,000 automatic dialers. According to Sunde, Westcom regularly sold dialers to other long distance carriers in the 1988 to 1991 timeframe. Sunde also sponsored Exhibit 124, which he explained are sample programming sheets which indicate how to bypass the autodialers. Sunde also testified about how the autodialers could be bypassed. (8 R.T. 655-657; 6 R.T. 488.) We find it difficult to believe that Sunde lacked the knowledge of how to program the autodialers when Westcom was involved in that kind of business, and supplied the programming sheets to show how the autodialers could be bypassed.
Based on all of the evidence presented on the 700 blocking allegation, we cannot conclude that Citizens blocked the 700 dialing for Westcom's customers during the June 1992 through November 1992 timeframe. Since the weight of the evidence shows that 700 dialing was available to Westcom's customers and that there was no blocking by Citizens, Westcom did not suffer any prejudice or disadvantage as a result.
4. Events Related to the Cutoff of Service
a. Introduction
We now turn to certain events which occurred after the issuance of D.92-08-028. These events concern the requirements of D.92-08-028, the letter which Westcom sent to its customers informing them about the merged network, the submission of the LOAs by Com Systems to Citizens, the processing of the LOAs, and the information that was given out by Citizens' employees to Westcom's customers.
The events which took place after the issuance of D.92-08-028, and which are the subject of the allegations in C.92-09-006 and C.92-09-025, could have easily been avoided had Westcom tendered all of the disputed sums to either the Commission or to Citizens pending a final decision. Westcom elected not to do so. The events which occurred afterwards need to be considered in light of Westcom's choice.
b. Westcom's Violation of D.92-08-028
Westcom took the position in C.92-03-049 that it could withhold all of the disputed monies from Citizens, while it continued to receive switched access service. On the final day of hearing in C.92-03-049, the ALJ heard argument on why an interim decision should not issue on whether Citizens could terminate service to Westcom pending the resolution of the underlying complaint, or whether Westcom could continue to withold the disputed amounts while the provisioning of access services continued. Westcom opposed the issuance of an interim decision on the grounds that there was no tariff requiring that the disputed amounts be deposited with the Commission or paid to Citizens. The ALJ ruled that an interim decision should issue, and two months later, D.92-08-028 was issued. (3 R.T. 142-143, 147-149.)
In D.92-08-028, the Commission addressed Westcom's argument that it had a right to withhold payment of the disputed amounts and have its access services continued. The Commission stated:
"An absurd and unreasonable result would occur if the Commission were to interpret Section 2.4.1(B)(3)(b) as providing that service should remain in effect during the period that disputed monies are being withheld by the customer. Such an interpretation would mean that the access service provider remains obligated to provide service for an indefinite period of time while the customer could withhold payment and still receive service. The customer would be generating revenues from its customers who subscribed to its interLATA service, but the local exchange carrier who provides the access service would not see any of those revenue paid over to it for providing the access service. This could lead to a situation where the interexchange carrier disputes the access service charges every month, withholds payment, and continues to receive access service without any threat of having its service terminated. That means the access service provider would have to bear the cost of providing the service to the nonpaying customer. Such a result is absurd and unreasonable." (D.92-08-028, pp. 13-14.)
D.92-08-028 gave Westcom the option of tendering the monies in dispute to Citizens pending a final decision in C.92-03-049, or to deposit the disputed amounts with the Commission. In order to protect Westcom's customers, D.92-08-028 stated:
"As a public utility subject to the jurisdiction of this Commission, and to protect Westcom's customers from suffering undue harm, we will require Westcom to send a notice within seven days of the mail date of this decision to all of its California customers in Citizens' service territory if it decides not to pay the disputed amount to the Commission or to Citizens." (D.92-08-028, p. 16.)
D.92-08-028 ordered Westcom to send the following notice to its customers if Westcom decided that it would not pay the disputed amounts:
"Dear Customer:
"Due to a billing dispute with the access service provider, Westcom will be unable to process your long distance calls beginning [date fourteen days after the mailing date of this decision]. You should make arrangements with another long distance carrier before this date so that your long distance service will not be interrupted.
"We apologize for any inconvenience that this may cause you." (D.92-08-028, p. 16.)
Westcom decided not to deposit the disputed amounts with the Commission or to tender the disputed amounts to Citizens. Instead of preparing the notice in the manner prescribed by D.92-08-028, Westcom prepared its own notice which stated:
"NOTICE
"TO: Westcom customers located in Citizens Utilities areas
"Westcom is please to announce that Westcom has merged its transmission network into the network of a major Westcoast carrier. In addition to obtaining some cost efficiencies Westcom will now be able to offer many new, enhanced telecommunications services, which will be announced in the near future. An additional important advantage is that calls may now be routed automatically without the need for autodialers or programmed phones.
"Westcom has instructed Citizens Utilities to convert your equal access number(s) to this new network. Should a conversion charge of $5.00 appear on your Citizens billing please contact our office to obtain a credit.
"Although Citizens has an obligation to process these equal access conversion orders promptly, we cannot assure you that they will do so. If you are unable to use Westcom, you may still place calls temporarily though AT&T by dialing: 10288 + area code + number. Westcom will issue credits for calls placed temporarily thru AT&T.
"Should you desire to use TRAVELCARD service on the new network it will be necessary for you to call the office for assignment of a new TRAVELCARD authorization code. As previously, there is no additional charge for using this service, other than the cost of calls you make.
"Please call our office at 1-800-662-8938 if you have any questions." (Ex. 46.)
Westcom's notice was undated, and according to Sunde, was mailed to its customers a few days prior to August 26, 1992. (6 R.T. 491.) Westcom and Sunde admit that D.92-08-028 required that Westcom's notice contain specific language, and that the notice that Westcom mailed "was not in the form prescribed by the Commission." (Westcom Answer To C.92-09-025, p. 2; 6 R.T. 440-441.)
Westcom asserts in its opening brief at page 1 that the Commission did not discuss the notice language in D.92-08-028 with Westcom, and that the "Commission erred in requiring that particular text" be mailed to its customers. Sunde testified that he did not feel that D.92-08-028 took into consideration that it could operate as a switchless reseller, and that he felt that the Commission did not have the authority to order him to go out of business without first holding hearings.
We first address Westcom's argument that the Commission did not discuss the notice in D.92-08-028 with Westcom before the decision was issued. The Commission was under no obligation to discuss the notice or what course of action the Commission was planning to take with Westcom before D.92-08-028 was issued. Once the Commission adopted the decision, any perceived deficiency with the required notice should have been raised by Westcom in an application for rehearing. Regardless of Westcom's view of D.92-08-028, as a public utility subject to our jurisdiction, Westcom was obligated to "obey and comply" with D.92-08-028. 72
At the close of the hearing in C.92-03-049, following the ALJ's ruling that an interim decision would be prepared, the ALJ made Westcom aware of its right to file for rehearing by stating:
"I would note for Mr. Sunde's benefit that any decision issued by the Commission can be the subject of an application for rehearing, which is contained in the rules of the Commission." (3 R.T. 149.)
Westcom, however, failed to file an application for rehearing of D.92-08-028. (6 R.T. 441.) During the C.92-09-006 and C.92-09-025 hearings, and in its brief, Westcom took the position that it did not agree with D.92-08-028 and that the Commission had erred.
We are not sympathetic to Westcom's excuse "that due to serious time constraints" it did not have time to challenge the wording in D.92-08-028. (Westcom Opening Brief, p. 1.) Westcom ignores the fact that it could have avoided the cutoff of its access services on August 25, 1992 by simply tendering the disputed monies with the Commission or to Citizens pending a final decision. A deposit of the disputed amounts would have also allowed Westcom to avoid sending the required notice to its customers. D.92-08-028 clearly provided Westcom with this flexibility, but Westcom failed to exercise its available options. Westcom could have also filed an application for rehearing of D.92-08-028 or a petition to modify the decision, but failed to do so.
In D.92-12-038, the Commission discussed Westcom's assertion in its answer to C.92-09-025 as to why it was unable to appeal the notice language in D.92-08-028. The Commission stated in footnote 2 of D.92-12-038:
"We are not persuaded by Westcom's argument that it did not have time to appeal the wording in D.92-08-028. Given the numerous filings that Westcom has made recently in several different proceedings, Westcom appears to have no problem in availing itself of the Commission processes."
Our view of Westcom's claim that it did not have time to file for rehearing of D.92-08-028 remains unchanged from D.92-12-038.
Since Westcom failed to apply for rehearing of D.92-08-028, its argument that the Commission committed legal or factual error in D.92-08-028 need not be addressed in this decision. Furthermore, this argument cannot be used by Westcom to justify its non-compliance with a Commission decision.73
Ordering Paragraph 5 of D.92-08-028 states:
"If Westcom decides to withhold payment of any portion of the amount in dispute, Westcom shall send a letter to all of its California customers in Citizens' service territory within seven days from the mailing date of this decision. Such a letter shall use the same text as described in the discussion portion of this decision, and a copy of such letter shall be forwarded to the Telecommunications Branch of the Commission's Advisory and Compliance Division on the same date the letters are mailed to Westcom's customers." (D.92-08-028, pp. 19-20.)
Westcom's failure to tender the disputed amounts to the Commission or to Citizens triggered the operation of Ordering Paragraph 5 of D.92-08-028, i.e., Westcom was obligated to provide the notice set forth in D.92-08-028. Westcom and Sunde admitted that the notice (Exhibit 46) that Westcom mailed to its customers was not in the format required by D.92-08-028. We therefore conclude that Westcom failed to obey and comply with ordering paragraph 5 of D.92-08-028, and that Westcom's failure resulted in a violation of § 702.
Contrary to Westcom's argument that "the inherent affect (sic) of the Commission's text was to order Westcom out of business, without an investigation or public hearing in violation of Westcom's rights to due process," we note that Westcom had ample opportunity to avoid having to issue the notice. (Westcom Opening Brief, p. 1; 6 R.T. 440-441.) As mentioned earlier, Westcom chose not to deposit the monies, failed to comply with ordering paragraph 5 of D.92-08-028, and failed to file an application for rehearing of D.92-08-028.
In addition, based on the date (July 28, 1992) of the Reseller Agreement between Westcom and Com Systems in Exhibit 67, it appears that Westcom was contemplating its network merger about a month before Westcom's access services were cut off by Citizens. If indeed Westcom contemplated such an agreement in July, Westcom's excuse that it didn't have time to file for rehearing of D.92-08-028 seems even more tenuous. That is, if Westcom was planning to carry its customer traffic over Com Systems' network before D.92-08-028 was even issued, once the decision was issued, Westcom could have immediately applied for rehearing and informed the Commission of its plan to operate as a switchless reseller.
Prior to January 1, 1994, § 2107 provided for a penalty of "not less than five hundred dollars ($500), nor more than two thousand dollars ($2,000)" for each violation of a Commission decision or rule. (Stats. 1951, ch. 764, p. 2098, § 2107.) Westcom should be penalized $2000 for its failure to comply with D.92-08-028. However, since Westcom is no longer operating in California, we do not see much value in imposing a monetary penalty at this time for Westcom's violation of § 702 for its failure to obey and comply with D.92-08-028, or to revoke Westcom's CPC&N at this time. We will therefore suspend the imposition of a penalty upon Westcom for this violation, and deny Citizens' request to revoke Westcom's CPC&N. If, however, the circumstances decribed in the "Miscellaneous Issues" section of this decision arise, we will direct the staff to take action to impose and collect the penalties from Westcom, and to open an Order Instituting Investigation (OII) as to why Westcom's CPC&N should not be revoked.
c. The LOAs
Westcom contends that when it merged its network with Com Systems, Westcom was simply acting as a switchless reseller. (Westcom Opening Brief, pp. 1, 52-53.) Sunde admitted, however, that at the time Westcom entered into the agreement with Com Systems, Westcom was "not a totally switchless reseller...." (6 R.T. 492.)
Citizens alleges in C.92-09-025 at page 7 that the "purchase and resale of originating switched access services is in direct violation of D.89-10-031 and D.84-06-113."
We do not believe that the resolution of the allegations in C.92-09-006 and C.92-09-025 are dependent upon whether Westcom was a switchless reseller. Rather, the issues that concern us are what effect Westcom's "merger" had on the provisioning of access services supplied by Citizens to Westcom, and what the merger meant to Westcom's customers.
In order for customers of Westcom to change to Com Systems' network, Citizens had to initiate a change in the PIC code for each customer. This change in PIC code represented a change in the IEC from Citizens' perspective, as demonstrated by the introductory language in § 2889.5 as it existed in August 1992: 74
"No interexchange telephone corporation, or any person, firm, or corporation representing an interexchange telephone corporation, shall authorize a local exchange telephone company to make any change in a residential telephone subscriber's presubscribed long-distance carrier until all of the following steps have been completed." (Stats. 1990, ch. 564.)
We are not persuaded by Westcom's arguments that the merging of the network was merely a change in routing, rather than a change in carrier. In addition, we are not persuaded by Westcom's argument that Citizens should have processed the changes before Citizens terminated services to Westcom on August 25, 1992.
The evidence shows that Westcom did not send any LOAs to Citizens. Sunde himself acknowledged that Westcom "submitted the letters of agency through Com Systems to Citizens Utilities to change our carriers to the new network." (6 R.T. 416.) 75 Com Systems then sent Citizens PIC changes for approximately 242 customers using the "Paper Input LOA." As shown in the handwritten notation at the top of Exhibit 51, Citizens received the LOAs from Com Systems on Friday, August 21, 1992. (7 R.T. 637-638.)
Sunde testified that Westcom did not send a written notice to Citizens informing it of Westcom's new network arrangements, nor did Westcom
send a copy of Exhibit 46 directly to Citizens. (6 R.T. 447-448.) 76 This contradicts Westcom's statement in its undated notice (Exhibit 46) to its customers that "Westcom has instructed Citizens Utilities to convert your equal access number(s) to this new network." (See Exhibits 46, 47 and 104.)
Diane Campbell, a Citizens' employee, was responsible for processing the LOAs. She reviewed the LOAs, and questioned whether they were complete since the reseller's name was not on the form. She testified that normally the reselling company's name would be on either a cover sheet, or on each LOA. In addition, some of the LOAs had the date of "5-20-91" which made her question how current the LOAs were. Campbell then called Jimmy Howell at Com Systems, whose name appeared on many of the LOAs. Although she asked Howell for the name of the reseller, Howell could not provide her with the reseller's name. All of the LOAs indicated that the IEC was Com Systems with a PIC code of 266. (7 R.T. 636-640, 644-645; Exhibits 51- 53, 106; See Exhibit 114, p. 18.)
On Tuesday, August 25, 1992, Campbell testified that she received a telephone call from Denise Alexander of Com Systems. Alexander informed Campbell that the LOAs were valid, and that Com Systems was acting as the reseller. (7 R.T. 641.) After receiving this verification, Citizens immediately began to process the LOAs. The processing of the LOAs was completed in the business office on August 26, and in the plant service center on August 27, 1992. (7 R.T. 642.)
The above sequence of events establishes that Com Systems was submitting the PIC changes on behalf of Westcom's former customers so that these customers could utilize Com System's network to place telephone calls. In order to merge Westcom's network with Com System's network, each of Westcom's customers had to be changed from Westcom's PIC number to Com System's PIC number of 266. (See Exhibits 52, 53, 57, 106.) Westcom was not asking Citizens to change its customers to Westcom's new network, but instead it was Com Systems who was requesting the change.
Despite Westcom's assertion that no carrier change was involved, two documents from Com Systems, Exhibits 52 and 103, suggest that a change in carrier PIC was needed. In the first paragraph of Exhibit 52, which is dated August 26, 1992, Com Systems wrote to Citizens: "please put the paper work in place to allow both business and residential customers to request ComSystems (Pic 266) for their long distance carrier." Exhibit 103, which is dated August 31, 1992, clarified that Westcom was still the long distance carrier of Westcom's customers, and that Westcom was a wholesale customer of Com Systems. Exhibit 103 also stated: "that there should be no problem in converting the Westcom customers over to a 266 PIC since there is no change in the long distance carrier to the customer." Thus, even though Westcom had entered into an agreement with Com Systems whereby Com Systems would carry Westcom's traffic, a carrier change did occur because a PIC change to Com Systems' PIC number was needed, even though Com Systems treated the end-user as Westcom's customer. (See Ex. 2, pp. 129-130; Ex. 112, p. 29; Ex. 113, 20-22, 27; Ex. 114, pp. 25-26.) Westcom also apparently asked some of its customers to call Citizens and to request Com Systems as their LEC. (Ex. 22, pp. 7-8; Ex. 27, pp. 2, 10, 21, 23; Ex. 96, pp. 25-27.)
Although Westcom contends that this change in network routing did not result in a change in carrier, subsequent Commission decisions have held that:
"A `PIC change' is a request transmitted by an interexchange carrier in writing or electronically to a local exchange carrier to change a customer's presubscribed (or primary) interexchange carrier." (66 CPUC2d 286, 292, fn. 2; 67 CPUC2d 399, 405, fn. 1.)
That is exactly what happened when Com Systems submitted the LOAs to Citizens. The LOAs requested a change of IEC for each customer from Westcom to Com Systems. Although Westcom argues that this arrangement was a switchless reseller arrangement, Westcom overlooks the fact that when it merged its network, Westcom was converting from a facilities-based IEC, to a switchless reseller. This conversion resulted in a change in carrier when the PIC numbers of Westcom's customers were changed from Westcom to that of Com Systems. The ramifications of such a change are discussed below in the processing of the LOAs by Citizens, and in the slamming discussion.
Westcom asserts that Citizens should have processed the LOAs in a more timely fashion because the LOAs were received by Citizens prior to terminating Westcom's services on August 25, 1992. We are not persuaded by this argument.
Since Com Systems submitted the LOAs to Citizens, from Citizens' perspective, it was Com Systems who was the switched access customer. Citizens had legitimate questions regarding the dates on the LOAs, and the volume of customers being switched, and asked Com Systems to clarify the validity of the LOAs. It was not until Tuesday, August 25, 1992, that Com Systems informed Citizens that the LOAs were indeed valid. Since a PIC change was needed to transfer Westcom's customers to Com Systems, it was the responsibility of Com Systems to verify the appropriateness of the PIC changes.
Campbell also testified that the processing of the LOAs, from their receipt in the business office, to making the changes known to the technical representatives who do the reprogramming, was a 24-hour process. (7 R.T. 641.)
Although Sunde testified that he spoke with someone at Citizens on August 25, 1992 about the LOAs, he could not remember who he spoke with. (6 R.T. 415-416, 446-447.) If indeed this contact occurred, it would have taken place on the 14th day after D.92-08-028 was issued, the same day that Citizens was authorized to terminate service to Westcom. This contact would have also been too late to have made any difference with respect to the cutoff of service, since Westcom did not tender the disputed sums to Citizens or to the Commission in the time allotted.
Westcom also argues that Citizens knew the LOAs were from Westcom customers when Campbell checked the computer screen for all of the LOAs. (Westcom Opening Brief, p. 78; See 7 R.T. 644.) However, this argument ignores the fact that it was Com Systems, and not Westcom, who submitted the LOAs to Citizens.
Based on the evidence presented, we conclude that Citizens did not delay or refuse to process the PIC changes at issue in this proceeding, and that no reparations are due to Westcom, Com Systems, or any of their customers.
d. Slamming Allegation
Citizens alleges in C.92-09-025 that Westcom changed the IEC of its customers without their authorization and verification when the LOAs were submitted to Citizens for processing. This type of activity is commonly referred to as "slamming," i.e., the switching of a consumer's presubscribed long distance telephone carrier to another carrier without the consent of the consumer. (See Pub. Util. Code § 2889.5.)
Westcom contends that the letters which Citizens sent to Westcom's customers portrayed Westcom improperly, and that as a result, Westcom lost customers and was eventually forced out of business in Citizens' service territory.
The issue of whether Westcom slammed its own customers by submitting the 242 LOAs to Com Systems, for forwarding to Citizens, makes for an interesting debate. However, we do not have to decide in this decision whether all 242 customers were slammed because the evidence presented by both sides is insufficient for us to make such a determination. Of the 242 LOAs that were received by Citizens, only one Westcom customer testified at the hearing, and 11 other customers had their depositions taken. As discussed below, the depositions revealed some slamming on the part of Westcom.
In order to understand how we have addressed Citizens' allegation of slamming, and Citizens' letters to Westcom's customers, we believe it is necessary to understand the perspective of Westcom, Com Systems, Citizens, and the end-use customer.
Although there seems to have been some initial confusion on Com Systems' part,77 Westcom and Com Systems both appear to have contemplated that Westcom's merger of its network with Com Systems would still retain the current customer relationship between the end user and Westcom. Westcom and Com Systems apparently viewed that this customer relationship was still intact even though Westcom apparently told some of its customers to call Citizens and request Com Systems, and Com Systems had requested that the LOAs be changed to Com Systems' PIC code. (See Exhibits 27, 57, 67, 103; 5 R.T. 377.)
Citizens appears to have initially viewed the arrangement between Westcom and Com Systems as a change in carrier for each customer listed on the LOAs. Sometime between August 26 and August 31, 1992, Citizens apparently gained a better understanding of the arrangement that Westcom and Com Systems had entered into. (See Exhibits 57 and 103.)
As for the customers whose LOAs were submitted to Citizens, none of them apparently knew that PIC changes were being submitted on their behalf since Westcom did not obtain any authorization from those customers. Sunde testified that since they were Westcom customers to begin with, and there was no underlying change of carrier, Westcom did not seek their authorization. (6 R.T. 442-443; Ex. 18, p. 4; Ex. 23, pp. 18-19; Ex. 24, p. 9; Ex. 26, p. 7.)
Based on the depositions that Citizens took of some of Westcom's customers, some of the customers appeared willing to retain Westcom as their IEC, while others wanted to switch to another IEC. The depositions also revealed that prior to August 25, 1992, some of Westcom's former customers had already selected an IEC other than Westcom or Com Systems. These customers were James and Linda White, Greg Short, Troy Todd, and Christine Geffre. With Com Systems' submission of the LOAs to Citizens, these customers were switched to Com Systems/Westcom without the consent of the customers. (Ex. 18, pp. 4-5, 10; Ex. 23, pp. 10, 18-19; Ex. 24, pp. 6, 8, 25; Ex. 26, pp. 5-7; Ex. 92.) The company that Sue Cady worked for also had its IEC switched to Com Systems without their consent when a Westcom employee reconnected the autodialer that her company used to use before switching to AT&T. (Ex. 19, pp. 10-12, 19-20; Ex. 91.)
Sunde testified that slamming "happens all the time," and that Westcom slammed these customers inadvertently and did not do it on purpose. (6 R.T. 483-484.) Sunde's testimony is not an excuse for the slamming which occurred.
We find that Westcom switched the IEC of five customers without their authorization. Pursuant to § 2107, we shall impose a penalty of $1000 for each slammed customer. However, we will suspend imposition of the slamming penalties. Should the circumstances addressed in the "Miscellaneous Issues" section of this decision arise, the Commission will lift the suspension and take action to impose and collect the penalty of $5000 for Westcom's slamming.78
We next turn to the letters which Citizens mailed to Westcom's customers on August 27, 1992 (Ex. 101) and September 1, 1992 (Ex. 102). Westcom contends that:
"These documents clearly show that Citizens made serious efforts to persuade Westcom's customers that they had other alternatives other than to use Westcom." (6 R.T. 414-415.)
Exhibits 101 and 102 cannot be judged in isolation. Rather, those two exhibits must be viewed alongside Exhibits 46 and 54. Exhibit 46 was sent out by Westcom to its customers on or about August 25, 1992. (6 R.T. 491.)79 The "Special Notice To Telephone Subscribers," which appears on the third page of Exhibit 54, appears to have been mailed out by Westcom to its customers around the August 27, 1992 timeframe. (6 R.T. 457-458.)
Exhibit 101 was an August 27, 1992 notice that Citizens mailed to Westcom's customers. This notice was responding to Westcom's Exhibit 46. Exhibit 101 sought to clarify the information contained in Exhibit 46. Exhibit 101 states in pertinent part:
"Recently, you may have received a notification from Westcom regarding a change in your long distance carrier choice. Some of the information contained in this letter is incorrect. Westcom is no longer a long distance carrier in Citizens territory.
"Citizens can only change your choice of carrier with specific instructions from you directly or through a letter of agency which you have sent to your new long distance carrier. If you wish to change your carrier choice, please contact our Business Office. We will be happy to establish long distance service for you with any carrier you choose, however Citizens will no longer be able to offer Westcom Long Distance as an option.
"Additionally, Citizens is unable to offer you the `credit' referred to in the Westcom notice. Any refund due must be obtained directly from Westcom." (Ex. 101.)
As we explained earlier, D.92-08-028 authorized Citizens to terminate Westcom's access services. Once Citizens terminated these services on August 25, 1992, Westcom was no longer an access service customer of Citizens, and therefore could no longer be selected as a valid IEC option. Thus, Exhibit 101 did not portray Westcom unfairly.
Exhibit 102 was mailed out by Citizens to correct or clarify "factual errors" in the special notice (Exhibit 54) that Westcom mailed to its customers. The special notice found in Exhibit 54 states in pertinent part:
"In March of 1992, Westcom ... filed a complaint against Citizens ... with the ... Commission.... In this complaint Westcom alleges abusive, discriminatory and illegal business practices and billing practices.
"Realizing that we could no longer do business with Citizens, Westcom began to merge its network with a large, Westcoast carrier. This new carrier submitted change orders to Citizens to effectuate this change, however, Citizens has refused to process those orders. Westcom considers this refusal by Citizens to be improper.
"Citizens has also informed many Westcom customers that Westcom is `out of business.' This is not true -- Westcom is still in business and will remain in business in Citizens areas, much to their dissatisfaction!
"Westcom urges you to write and complain about your inability to make long distance calls through Westcom's new, assigned carrier." (Ex. 54, p. 3.)
Exhibit 102 states in pertinent part:
"It has come to our attention that you may have received a special notice from your long distance carrier, Westcom.... That notice contained factual errors which Citizens believes should be corrected or clarified.
"During March 1992, Westcom did, indeed, file a ... CPUC Complaint containing the allegations cited in the special notice. However, to date, none of the Westcom complaints have been upheld by the CPUC. Instead, on August 11, 1992, the CPUC issued an interim order authorizing Citizens to disconnect Westcom's access service due to Westcom's non-payment of rightfully rendered bills.
"In the same order the Commission urged Citizens to delay service disconnection for two weeks to allow Westcom time to notify its customers. The order also directed Westcom to notify its customers of possible service termination and to seek another long distance carrier. Westcom did not issue the customer notice as specifically required by the CPUC. Nor did they comply with the requirement that the notice be issued on the date specified by the CPUC. When no payment was received from Westcom, and after a delay of two weeks, Citizens terminated Westcom's access services on August 25, 1992.
"In the past few days, Citizens has received incomplete letters of agency requesting that many Westcom customers be moved to Com Systems, another long distance carrier. Citizens is processing those requests but has some concerns regarding their origin and legality.
"It is IMPORTANT THAT YOU KNOW YOUR RIGHTS. The rules governing carrier changes stress that such changes should never occur without the knowledge and consent of the customer. If you have any questions aobut your right to freely choose your long distance company, please call Citizens' business office." (Ex. 102.)
Also attached to Exhibit 102 was an explanation of how an end use customer could select the IEC of their choice.
In our opinion, Exhibit 102 did not portray Westcom unfairly. All of the information contained in Exhibit 102 is consistent with D.92-08-028, as well as the evidence presented in these proceedings. As for Westcom's contention that Exhibits 101 and 102 were designed to persuade its customers to choose an IEC other than Westcom, we do not agree. Citizens was authorized to terminate access services to Westcom. Once service was terminated, Westcom was no longer a valid IEC choice for end-use customers. In addition, Citizens was clearly within its rights to advise end users of their freedom to select the IEC of their own choosing.
Westcom's allegation that it lost customers, and was forced out of business as a result of Exhibits 101 and 102, are issues which this Commission does not have jurisdiction over. The type of injuries which allegedly resulted are not reparations, but rather are in the nature of damages, which this Commission has no authority to adjudicate.
e. Information Provided by Citizens' Service
Representatives
(1) The Availability of Com Systems as an
IEC Choice
Westcom alleges that Citizens' service representatives made several misrepresentations to customers of Westcom around the time Citizens terminated access services to Westcom, or shortly afterwards.
The first misrepresentation which Westcom asserts Citizens engaged in was that it told callers that Com Systems was not available as an IEC choice. Sunde testified that Westcom was not aware until August 25, 1992, that Com Systems had previously indicated to Citizens that they would only accept business customers within Citizens' service territory. (6 R.T. 451-452.)
The evidence presented at the hearing suggests that prior to August 25, 1992, Com Systems had only asked to accept business customers. Exhibit 68, the "Allocation Participation Form" dated February 6, 1991, shows that Com Systems would only accept business customers from the four Elk Grove offices of Citizens. Exhibit 57, a letter from Com Systems to Citizens dated August 26, 1992, also indicates that Com Systems used to only accept business customers, but was now requesting that residential customers, as well as business customers, be allowed "to request ComSystems (Pic 266) for their long distance carrier." This is also supported by the attachment to Exhibit 114, which is a memorandum dated August 26, 1992 to S.K. Hughes from M. Youmans. That memorandum states that the Com Systems information in the CRIS manuals should reflect that Com Systems has service in the Susanville, Burney and Elk Grove tandems, and that any customer, business or residence, "can PIC their long distance service from any exchange served by these offices." This is also substantiated by the attachment to Exhibit 114 which is dated August 26, 1992, and states "Read Now" at the top. Hughes testified that when she got a copy of Exhibit 57 from Youmans, she immediately prepared a memorandum ("Read Now" attachment to Ex. 114) for the business office representatives so that customers could select Com Systems as their IEC choice. (7 R.T. 615-616; Ex. 114, pp. 19-20.)
Westcom contends in its opening brief at pages 78 to 79 that Citizens "refused to produce the allocation form for the Susanville area." Westcom argues that the lack of a document similar to Exhibit 68 for the Susanville area suggests that Com Systems "most likely" had business and residential service in the Susanville area prior to the cutoff of access service. We are not persuaded by Westcom's argument. First of all, there is nothing to suggest in the record that Citizens refused to produce the allocation form for the Susanville area. Second, Westcom did not cross examine the Citizens' witness about the lack of an allocation form for the Susanville area. (See 7 R.T. 614, 621-623, 626.)
The weight of the evidence suggests that until August 26, 1992, Com Systems was willing to accept only business customers. (See Exhibit 57, and Attachments to Exhibit 114.) Thus, callers who may have contacted Citizens on August 25, 1992 about the selection of Com Systems as an IEC, might have been told that Com Systems was not available as a choice. When Citizens learned of Com Systems' willingness to accept residential customers, Citizens' service representatives were informed of this, and Com Systems was made available as an IEC choice on August 26, 1992. (7 R.T. 615-616; Ex. 96, pp. 25-27.)
(2) Informing Callers that Westcom Was Out of
Business
The second misrepresentation which Westcom alleges that Citizens' service representatives engaged in, is that they told some of the customers who called that Westcom was out of business.
Westcom contends that the depositions of the following four customers demonstrate that Citizens told these customers that Westcom was out of business: Debbie Dean, Irene Joseph, Richard Rose, and Randy Falstad.80 The depositions of Dean, Joseph, and Falstad demonstrate that when they called Citizens, they were told by a Citizens' employee that "Westcom was out of business," or that Westcom was "going out of business," or "There is no such company as Westcom." (Ex. 21, pp. 4-5; Ex. 22, pp. 7, 16, 19, 22; Ex. 96, pp. 21-22.) Westcom also relies on 11 signed and unsigned statements that Sunde wrote down when Westcom's customers called Westcom. Although these statements state that they were told by Citizens that Westcom had gone out of business, none of these customers had their depositions taken, nor did they testify during the hearing. (Ex. 27, pp. 1 (Doyle Realty), 4 (Azevedo), 5 (Eagle Lake Resorts), 6 (Strassburg), 9 (Heard Realty), 12 (Mike's TV Repair), 16 (Feather Publishing), 81 17 (Lenox), 18 (Gerlach), 19 (Morgan), 21 (Genesee Store.).)82
Westcom also asserts that the attachment to Exhibit 114, which is entitled "Read Now," demonstrates that customers of Westcom were told that Westcom was out of business. That attachment states in pertinent part:
"You are not to be guided in any way through conversations to admit knowledge of Westcom's financial condition or ability to provide service. Some customers have been told that Westcom is bankrupt. Information given out, whether right or wrong, could jeopardize legal proceedings currently in progress between Westcom and Citizens Utilities.
A. Reminder from special memo from Anita Arsenault dated August 21, 1992:
1. Inform the customer: `Your long distance carrier is no longer in service, you will need to select another carrier for your long distance service.'
2. Under no circumstance should these customers be informed why Westcom is no longer in service. If the customer asks why the carrier is no longer in service, you should respond with `I do not know,' or you may refer the customer to Lori at Westcom at 1-800-662-8938."
The depositions of the other Westcom customers indicate that the callers were not told by Citizens' representatives that Westcom was out of business. Instead, the callers were told something like Westcom was no longer available, or that "Westcom was no longer allowed to use the Citizens lines." (Ex. 17, pp. 12-13; Ex. 23, p. 9; Ex. 24, p. 24; Ex. 26, p. 13.)
The August 21, 1992 Citizens' memorandum entitled "Westcom Disconnect," which is an attachment to Exhibit 114,83 shows that Citizens' service representatives were instructed to follow certain guidelines when speaking with Westcom's customers in the event Westcom's access services were terminated. The four guidelines included the two guidelines contained in the "Read Now" memorandum quoted above.
The evidence shows that Citizens' service representatives were instructed to inform the caller that Westcom was "no longer in service" and that the caller would "need to select another carrier for your long distance service." Despite these instructions, the evidence establishes that some of Westcom's customers were told by representatives of Citizens that Westcom was out of business or going out of business.
However, these representations appear to have affected only a small number of Westcom customers, and they appear to have been limited in duration. From Citizens' perspective, once access services were terminated to Westcom, Westcom was no longer an active access service customer of Citizens. A day after Westcom's access services were terminated, Citizens apparently discovered that some callers were being told that Westcom was out of business or bankrupt. As evidenced by the "Read Now" memorandum, Citizens immediately informed its service representatives to follow the guidelines set forth in the August 21, 1992 memorandum regarding the "Westcom Disconnect." This was reiterated in the August 28, 1992 Citizens' memorandum. (Ex. 56; 7 R.T. 611-612.)
As part of Westcom's request for relief associated with this misrepresentation, Westcom requests the following relief:
"(1) order reparations be paid to Westcom for lost customers, lost revenue, slander, damage to customer goodwill and reputation, unfair trade practices, negligence, fraud, trade defamation, intentional interference with economic relations, breach of contract, breach of implied covenant of good faith, and fair dealing and other damages in the amount of $2,000,000.;
...
"(4) issue penalties against Citizens Utilities and Citizens employees, officers, agents as set forth in Section 2100 et al in the amount of $5.0 million;
...
"(31) rule that CUCC unlawfully disrupted Westcom's customers during the changeover to Com Systems' network;
...
"(34) rule that CUCC slandered and defamed Westcom and committed unfair trade practices in the letters CUCC mailed to Westcom's customers and through statements made to Westcom's customers, without limitation, that Westcom was bankrupt, that Westcom was out of business, that Com Systems was not a valid carrier choice in Susanville." (Westcom Opening Brief, pp. 88, 92.)
We deny Westcom's request for "reparations" for the actions related to callers being told that Westcom was out of business, or that it was "bankrupt," or for a loss of customers. What Westcom characterizes as reparations is nothing more than a request for damages. 84 Indeed, the type of actions that Citizens allegedly engaged in, are tort or contract actions in which the Commission has no jurisdiction to award damages. We also note that Westcom's request for reparations for "negligence, fraud, trade defamation, intentional interference with economic relations, breach of contract, breach of implied covenant of good faith, and fair dealing," were not alleged in C.92-09-006 or in its amended complaints. In addition, as discussed earlier, we do not find that Citizens' actions interfered with or disrupted Westcom's conversion to Com Systems, or that under the circumstances, Citizens' actions slandered or defamed Westcom, or that Citizens engaged in unfair trade practices.
We also deny Westcom's request that penalties be imposed against Citizens and its employees regarding these alleged misrepresentations. The evidence shows that prior to the cutoff of Westcom's access services, Citizens instructed its service representatives to state that "Your long distance carrier is no longer in service, you will need to select another carrier for your long distance service." Such a statement was consistent with what the Commission ordered in D.92-08-028.
Although it appears that some misrepresentation about Westcom was given out, given the August 21, 1992 instructions, the August 26, 1992 reminder, the August 25, 1992 cutoff date, the limited duration of when the misrepresentations may have been made, and the circumstances of the events leading up to the cutoff of Westcom's access services, we conclude that no penalties are warranted.
(3) Charge for Switching IECs
In C.92-09-006, Westcom alleges that Citizens told some customers that the charge to switch to a new IEC would be $13.50, and that Citizens told other customers that the charge would be $11.00. Citizens alleges that Westcom's Exhibit 46 "contained substantial misinformation," including a reference to a $5.00 conversion charge, instead of the correct charge of $5.26. (Ex. 47.)
Westcom did not produce any evidence to support its allegation that Citizens informed Westcom's customers that the cost to switch to a different IEC would be $13.50 or $11.00. In Exhibit 46, the notice that Westcom sent to its customers in advance of the cutoff of service, Westcom referred to a conversion charge of $5.00.85 Sunde testified that Citizens claimed that a $5.26 charge applied, and on other occasions, claimed that a charge of $5.00 applied. (6 R.T. 412-414.) Citizens asserts that the correct intrastate charge was $5.26 as shown in Exhibits 47 and 48, and that the correct interstate charge was $5.00. Since Westcom claimed 83% to 90% intrastate usage beginning in June 1992, Citizens contends that the intrastate charge of $5.26 applied. (7 R.T. 558.)
There is insufficient evidence to conclude that Citizens told some customers that the charge to switch the customer's IEC would cost $13.50 or $11.00. There is also insufficient evidence to conclude that Westcom misrepresented the amount of the switch charge in Exhibit 46 since Westcom offered to reimburse its customers for any conversion charge that might be imposed. (Ex. 46.)
(4) Blocking of Calls Through AT&T
Westcom alleges that during the cutoff of access services to Westcom, and following the changeover to Com Systems, that Citizens "deliberately and systematically disrupted Westcom's customers' services for the sole purpose of causing Westcom great harm and to further their goal of putting Westcom out of business." (Westcom Opening Brief, p. 83.) Among the types of calls that Citizens allegedly blocked were outgoing calls through AT&T's network, i.e., 10288 dialing.
The only evidence of 10288 calls being blocked are contained in three of the statements in Exhibit 27 at pages 1, 9, and 20. 86 Two of the three customers whose statements appear in Exhibit 27 did not testify at the hearing, and did not have a deposition taken. The third customer, James Jeskey, was asked in his deposition if he had signed the statement which appears in Exhibit 27. He replied that was his statement and signature. Jeskey's statement states that they tried to place calls through AT&T by using the 10288 command, but the calls could not go through (Ex. 17, pp. 11-12; Ex. 27, p. 20.) The depositions of the other customers related that they had problems of one to two days when they could not make any long distance calls.87 (Ex. 19, p. 11, 15-16; Ex. 20, pp. 18-19; Ex. 22, pp. 9-10; Ex. 24, p. 10.) However, it is not clear from those depositions whether they tried to use the 10288 dialing pattern during this time.
The problems that Jeskey encountered, and the other customers who experienced calling problems following the cutoff of access services to Westcom, were due to Westcom's failure to send out the notice required by D.92-08-028, and Westcom's failure to make the necessary arrangements with Com Systems and Citizens. Had the appropriate notice been mailed out in a timely manner, Westcom's customers would have had the opportunity to select an IEC before Westcom's access services were terminated. In addition, Westcom did not ensure that its network merger with Com Systems was seamless. Com Systems did not verify that the LOAs were valid until August 25, 1992, and it did not start to accept residential customers until August 26, 1992.
Westcom also alleges that Citizens told its customers that if they chose Com Systems, that they could no longer use AT&T. However, the only evidence which supports this assertion is found in the Bill Battagin statement in Exhibit 27.88 Battagin did not testify at the hearing or have his deposition taken. Exhibit 77, which was prepared by Hughes after reviewing Citizens' customer service records for Battagin's account, determined that Battagin had never been an IEC customer of either Westcom or Com Systems. (7 R.T. 618, 620-621.)
Three other customers who had their depositions taken were also asked if anyone at Citizens told them that if they used Westcom or Com Systems, that they would not be able to use AT&T. All three of these customers stated that they could not recall ever being told this. (Ex. 17, p. 14; Ex. 19, p. 17; Ex. 20, p. 16.) We conclude that Westcom has failed to prove that Citizens told callers that if they chose Com Systems, they could no longer use AT&T.
5. Antitrust and Business and Professions
Code Allegations
Westcom alleges in C.92-09-006 that the activities that Citizens engaged in "are in violations of antitrust laws and violate California Business and Professional (sic) Code Sections 17095 and 17096...." (C.92-09-006, p. 3.)
To the extent that Westcom seeks to have the Commission determine whether a violation of the antitrust laws or the Unfair Practices Act (Bus. & Prof. Code § 17000 et seq.) occurred, the Commission is without jurisdiction to determine such violations, or to award damages. (See Pub. Util. Code § 2106; Masonite Corporation v. Pacific Gas and Electric Company (1976) 65 Cal.App.3d 1, 7-8; Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 479.) In Northern California Power Agency v. Public Utilities Commission (1971) 5 Cal.3d 370, 377, the California Supreme Court recognized that regulatory agencies, such as the Commission, do not have jurisdiction to determine violations of the antitrust laws. (See Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1247; D.95-05-020 (59 CPUC2d 665, 684.) .) A review of the Unfair Practices Act reveals that any injunctive relief, or a request for damages, for a violation of the act, is to be addressed in a civil court proceeding. (See Bus. & Prof. Code §§ 17070, 17203; Chicago Title Insurance Company v. Great Western Financial Corporation (1968) 69 Cal.2d 305, 317-318.)
The Commission does have the authority to consider the effects of antitrust behavior or unfair practices in certain situations. For example, the Commission has the obligation to consider the antitrust implications of applications that are filed with the Commission, or when competitive abuses or anticompetitive effects may be present. (See Northern California Power Agency v. Public Utilities Commission, supra, 5 Cal.3d at p. 377; D.88-12-083 (30 CPUC2d 189, 226-227); D.92-09-080 (45 CPUC2d 541, 561-562); D.93-10-016 (51 CPUC2d519, 523-524); D.95-05-020 (59 CPUC2d 684-685).)
Westcom contends that Citizens' actions were anticompetitive and unfair, and that Citizens' engaged in such activities to drive Westcom out of business so as to retain the bulk of the intraLATA income when the intraLATA market is opened to competition. (Westcom Opening Brief, pp. 2-3, 5, 74, 80--86.)
As discussed above in the various sections of this decision, we are not persuaded by Westcom's arguments that Citizens' actions were anticompetitive or unfair business practices. In determining whether a particular business practice is unfair, the Commission needs to balance the impact on the alleged victim, and the reasons, justifications, and motives of the alleged wrongdoer. (51 CPUC2d 524-525, fn. 9.) Based on our review of the evidence in these complaint cases, and the circumstances which led to Citizens' actions, we cannot conclude that Citizens' activities were anticompetitive or unfair.
6. Other Alleged Billing Errors
Westcom alleges in its Second Amended Complaint that Citizens caused the calls of Westcom's customers to be sent to MCI, and that MCI may have billed Westcom's customers in error. Except for Exhibit 27 and Exhibit 45, some brief testimony by Sunde, and some questions of Foote, Ottoway and Innes in their depositions, Westcom did not establish that any of the calls of Westcom's customers were ever sent to MCI, or that MCI billed Westcom's customers. (See 6 R.T. 411-412; Ex. 1, pp. 20-23; Ex. 2, pp. 41-42, 44-48; Ex. 45; Ex. 75, pp. 16-17; Ex. 111, p. 14; Ex. 112, p. 23; Ex. 113, pp. 13-18.) Although Exhibit 27 shows that the Brian McKernan bill from Citizens contained long distance calls carried by MCI, McKernan did not testify or have his deposition taken. It cannot be determined if McKernan voluntarily used MCI to make the calls shown in this exhibit. (See 5 R.T. 375-382.) The only other evidence in this record that refers to MCI are some questions and answers regarding an MCI back billing problem. (See 4 R.T. 173-174, 195-196, 235, 253, 270-273; 6 R.T. 411-412; Ex. 7; Ex. 112, pp. 23-24.)89 We conclude that Westcom failed to meet its burden of proof with respect to the allegations contained in its Second Amended Complaint to C.92-09-006.
Exhibit 6 refers to a "logic error" that was discovered in a computer program around May 1992. According to the exhibit, the impact of the error was the possibility that the billing of terminating access may have been done incorrectly, and that some carriers may have been billed terminating access that actually belonged other carriers for the period from June 1991 to the present. Foote assumed that the logic error was corrected, but did not know whether credits were issued after she left Citizens. Ottoway testified that he was aware of the logic error, but did not know if Citizens solved the problem or made any retroactive adjustments to any carriers' bills. (4 R.T. 189-192, 239-243; Ex. 6.)
Innes testified that a rerun of the data was done for the logic error using the corrected computer program. He testified that the carriers were impacted for a "very brief period of time," and that only those carriers who had both FGB and FGD service were impacted. Only four carriers were impacted, including Westcom. Citizens issued credits to the carriers, and on September 10, 1992, Westcom's account was credited for $1304.94. (6 R.T. 548-550; 7 R.T. 552-553, 566-568; 8 R.T. 680-681; Ex. 97; Ex. 116.)
Westcom contends that there was a billing problem involving a Citizens' customer called "CAL-NET." When Foote was asked about this at her deposition, she stated that "Ron Ottaway advised me to make a change in billing and Don Innes did not want that change." She could not remember the actual change. She stated that she wished she had some records she could review, and stated that "Nothing is coming to me." All she could remember was that there was a conflict and believed that it involved CAL-NET around July 1992. (Ex. 1, pp. 13-14.) However, when she was asked about this at the hearing, she was able to provide more details and stated that she received actual measured reports from data management, thought the usage was on the low side, and went ahead and billed it as actual measured terminating usage. She stated that it involved FGB terminating service. According to Foote, Innes was upset and had wanted it to be billed assumed rather than actual. To Foote's knowledge, CAL-NET did not complain to Citizens about this. (4 R.T. 169-170, 199.)
When Ottaway was asked about the CAL-NET problem, he agreed with Foote's testimony regarding the problem, but could not remember if the bill was for FGB terminating, and did not remember if there were conflicting orders as to how the CAL-NET billing should be billed. (4 R.T. 222-223.)
Westcom argues that the CAL-NET billing problem proves that Citizens did have the capability to measure FGB terminating traffic. We note however, that when Foote was asked about this problem during her deposition, she could not remember the details of the problem. Although she stated during the hearing that it involved FGB terminating usage, Ottaway could not remember. Given the other testimony regarding Citizens' lack of FGB measurement capability, we are not persuaded by Westcom's argument that this CAL-NET problem proves that Citizens was able to measure FGB terminating traffic.
Westcom also argues that the attempt to bill CAL-NET on an assumed basis, rather than actual, violates the FCC tariffs because it creates more revenue for Citizens. As discussed earlier, prior to June 1992, all of Westcom's FGB bills were billed based on the interstate tariff because Westcom had reported 100% interstate use. Since it involved the interstate tariff we do not need to resolve the issue.90 In addition, since CAL-NET is not a party to this proceeding, Westcom has no standing to represent CAL-NET's interests in this proceeding.
Execuline was allegedly billed by Citizens for FGB terminating service after Foote was told to "bill everyone" for terminating service. Although the bill involved a FGB bill, Foote testified that Execuline never ordered the service. Westcom argues that the billing problem with Execuline shows that Citizens engaged in a fraudulent billing practice. (Westcom Opening Brief, pp. 44-45.)
In response to a question from Citizens, Foote testified that she did not know whether the Multiple Exchange Carrier Access Billing guidelines allowed the billing of terminating usage even when a carrier did not specifically order the service. (4 R.T. 161-162, 204-205; Ex. 1, pp. 40-42.) The alleged billing problem with Execuline does not shed any light on the FGB measurement capability at issue in this proceeding. Nor does Westcom have any standing to represent the interests of Execuline in this proceeding.
Westcom also contends that PacBell was able to actually measure traffic, and that this data was forwarded to Citizens and then billed the actual usage. Westcom contends that it is "inconceivable" that Citizens could bill actual measurement of PacBell traffic, but that it refused to bill its own actual measured traffic. (Westcom Opening Brief, p. 45.) However, when Ottaway was questioned by Sunde about PacBell's ability at Ottaway's deposition, Ottaway stated that Citizens was not able to process and bill the usage through Citizens' switch because of the internal problems that Citizens was having. (Ex. 2, pp. 81-82.) The billing of the traffic measured by PacBell does not prove that Citizens had the same kind of measurement capability as PacBell.
7. Solicitation of IntraLata Traffic
Citizens alleges in C.92-09-025 that Westcom violated D.88-09-009,91 and the settlement agreement that Westcom entered into in C.89-10-02792 in which Westcom agreed to cease soliciting intraLATA business in Citizens' service territory. Citizens asserts that the activities that Westcom engaged in cannot be construed as merely incidental intraLATA traffic. Instead, Citizens alleges that Westcom sent out customer notices informing customers that they could use "700 access service to make intraLATA or service area calls. (Ex. 60.) After PacBell complained to Westcom about Westcom's 700 notice, Westcom sent out a notice (Ex. 123) dated July 9, 1992 correcting the 700 notice. (Ex. 123; Westcom Answer To C.92-09-025, Ex. H; 6 R.T. 462-464.)
Citizens also alleges that even after the settlement was entered into in C.89-08-035, Westcom continued to engage in the marketing of intraLATA services to prospective customers. In addition, Citizens alleges that the majority of Westcom's larger customers were given preprogrammed autodialers to automatically route intraLATA calls over Westcom's network. Citizens further alleges that its audit of 700 access calls for a one week period in July 1992 indicate that an overwhelming amount of the calls placed over Westcom's network were intraLATA calls. (Ex. 61; 7 R.T. 601-603.)
In its answer to Citizens' complaint at page 5, Westcom admits to "improperly sending notice to approximately one-third (1/3) of its California customers regarding intralata calls."93 Westcom further states that it "improperly assumed that since applications for intralata service have recently been required by the Commission that the service was to become effective momentarily."
At the time Citizens filed C.92-09-025, IECs were prohibited from soliciting intraLATA calls or holding themselves out as providers of intraLATA long distance service. Westcom's authorization to operate as an IEC was:
"[S]ubject to the condition that applicant refrain from holding out to the public the provision of intraLATA service and subject to the requirement that it advise its subscribers that intraLATA communications should be placed over the facilities of the local exchange company." (D.88-09-009, p. 3.)
It was not until January 1, 1995, that the IECs were authorized by the Commission to compete in the intraLATA market. (D.94-09-065 [56 CPUC2d 117, 147, 285].)
In its opening and closing briefs, Westcom shifted the focus away from its admission that it sent Exhibit 60 to some of its customers. Instead, Westcom asserts that its actions were "incidental" in nature, and that Westcom lacked the "affirmative intent" needed to bring its actions within the prohibition against soliciting intraLATA traffic or to hold itself out as a provider of intraLATA long distance service.
Westcom further asserts in its opening brief at page 5 that the only evidence that Citizens could produce regarding Westcom's direct solicitation of an intraLATA customer was the letter that was sent to Greg Short. Scott Madison, a former Westcom sales representative, testified that he wrote portions of the letter (Ex. 73) to Short. He testified that the letter was "a standard Westcom marketing material letter," a "canned letter," which he personalized and sent it to prospective customers. That letter referred to the "TAKE 30" program. (7 R.T. 578- 580.) In the paragraph starting with "FREE CALLING CARD," the letter stated:
"What's even better, is you can use this calling card to save 30% when making those expensive service area long distance calls. This is a service that AT&T, Sprint, and MCI will not provide you." (Ex. 73, p. 3.)
Madison testified that the "service area long distance calls" referred to intraLATA calls. (7 R.T. 579-580.)
Madison also testified that Sunde approved all of the marketing materials that were sent out under Westcom's letterhead, and that he worked under the direction and control of Sunde. He also testified that he had received training from Sunde and John Roberts, a senior sales representative of Westcom. Madison recalls that Sunde "taught me how to analyze a long distance bill, which included both intraLATA as well as the interLATA calling." (7 R.T. 576-577.)
Sunde acknowledged that Westcom did have a "TAKE 30" program, but the `TAKE 30" letter shown in Exhibit 73 was not a product of Westcom or of Sunde. Since Sunde did not send Exhibit 73, he testified that he had to assume that Exhibit 73 was unauthorized. (6 R.T. 467-469.) Sunde also denied that he "assisted Mr. Madison in analyzing intraLATA bills," or that he wrote the canned letter. Sunde further stated that he did not approve or even review Madison's personal solicitation letters before Madison sent them. In addition, most of the customers that Madison signed up were equal access customers. (8 R.T. 661, 663, 677.) Sunde testified that if a customer is on equal access, "intraLATA calls are automatically forced through the local exchange carrier." (6 R.T. 469-469.) Sunde also defined a "service area call" as an "intraLATA call," and that the purpose of 700 dialing is "to identify who your long-distance carrier is." (6 R.T. 466; 8 R.T. 672.) Sunde also testified that Westcom "did not actively solicit intraLATA business." (6 R.T. 488.)
We first address whether Westcom actively solicited intraLATA calls or held itself out as a provider of intraLATA long distance service. These kinds of activities are to be distinguished from incidental intraLATA traffic, which the Commission has allowed. (D.92-01-020 [43 CPUC2d 100, 101].) In determining whether the intraLATA traffic is incidental or not depends upon the carrier's intentions. If the carrier exhibits "an affirmative intent to hold out the offering of intraLATA traffic," then the intraLATA traffic is not incidental. (43 CPUC2d at pp. 101-102; D.84-06-113 [15 CPUC2d 426, 465-466].)
It is undisputed that Westcom sent Exhibit 60 to at least some of its customers prior to July 9, 1992. That exhibit stated in pertinent part that easier dialing procedures are available "due to recent intralata approval by the California Public Utilities Commission." (Ex. 60, emphasis added.) Exhibit 60 also stated that for those customers signed up for Westcom's equal access service, they could "dial intralata calls within your area code" by dialing "1-700-xxx-xxxx," instead of the "regular area code." The call would "then be routed automatically." Exhibit 60 went on to state that:
"This new 700 procedure now works in many areas and should work in all areas shortly. The end result of this new, easier dialing protocol is that auto dialers have now become obsolete and unnecessary. Westcom will begin removing all auto dialers very shortly."
Although Westcom sent a correction to Exhibit 60 in the form of Exhibit 123 after PacBell complained to Westcom, Exhibit 60 evidences an affirmative intent on Westcom's part to solicit intraLATA traffic. This intent is found in Exhibit 60 wherein it states that the easier dialing procedures, including the 700 dialing procedure, was "due to recent intralata approval" by the Commission. This language implies that the Commission approved intraLATA competition, even though the Commission did not authorize intraLATA competition until D.94-09-065 was issued in September 1994.
Further evidence of Westcom's affirmative intent to solicit intraLATA traffic can also be found in Exhibit 73, a letter which was mailed to a prospective customer prior to February 28, 1992. The third and fourth paragraphs of the "TAKE 30" sheet of Exhibit 73 describe that if the calling card is used by a Westcom customer, one can:
"[S]ave 30% when making those expensive service area long distance calls. This is a service that AT&T, Sprint, and MCI will not provide you."
The fifth page of Exhibit 73 also encourages the use of the calling card to make "toll calls inside your service area."94
Although Sunde denies that he wrote Exhibit 73, or assisted Madison in analyzing the intraLATA bills of prospective customers, we find Sunde's denial unconvincing. Both Exhibits 60 and 73, Westcom's admission in its answer to Citizens' complaint, as well as Madison's testimony, strongly suggest that Sunde and Westcom were fully aware of the Take 30 program and its marketing of the use of the calling card to make "service area long distance calls."
Exhibit 61 also demonstrates that despite Westcom's mailing of Exhibit 123 sometime around July 9, 1992, some of Westcom's customers continued to use the 700 dialing procedure for purposes other than determining who their IEC was. Although Sunde pointed out that many of the calls in Exhibit 61 were not intraLATA long distance calls, Exhibit 61 still shows that many of the calls placed by Westcom's customers using the 700 dialing procedure were intraLATA calls. (Ex. 61; 8 R.T. 651-653, 683-689.)
Exhibits 63 and 64, and the testimony of Innes, also suggest that a high percentage of calls from Westcom's customers involved intraLATA calling. (7 R.T. 559-560.) Westcom contends in its opening and closing briefs that one cannot determine where a call is originating from when a calling card is used, and therefore Exhibits 61, 63 and 64 cannot be used to prove that the calls were intraLATA calls since some of those calls may have originated from outside the LATA. Even if we accept Westcom's argument that some of the calling card calls may have originated outside the LATA, one cannot reasonably dispute, based on the evidence in Exhibits 60, 61, 63, 64 and 123, that some of the calls placed by Westcom's customers were intraLATA calls.
With respect to Citizens' allegation regarding Westcom's use of autodialers to allow its customers to make intraLATA calls, the evidence is inconclusive.
Based on the evidence presented, we conclude that Westcom affirmatively intended to solicit intraLATA traffic. The wording of Exhibits 60 and 73 do not suggest to us that Westcom's solicitation of intraLATA traffic was only incidental in nature.
Having concluded that Westcom intended to solicit intraLATA traffic, the second inquiry is whether such actions violated D. 88-09-009 and D.91-09-018. In D.91-08-018, the decision specifically stated that the motion to adopt the settlement agreement was:
"[I]n the public interest because it provides clarification of Westcom's advertising and customer relations practices, i.e., that Westcom will not solicit intraLATA business nor hold itself out as an intraLATA carrier. The Settlement Agreement maintains that the public will further be served by Westcom's agreement to notify customers that intraLATA calls should be placed through Citizens." (D.91-08-018, p. 1.)
The Commission adopted the Settlement Agreement entered into between Westcom and Citizens as a condition of the dismissal of C.89-08-035. (Ibid.)
In both D.88-09-099 and D.91-08-018, Westcom was prohibited from holding out to the public that it could provide intraLATA service, and that it was to advise its subscribers that intraLATA communications should be placed through the local exchange company. Exhibits 60 and 73 evidence an intent by Westcom to actively solicit intraLATA traffic. Since both of these exhibits were sent to Westcom's customers prior to D.94-09-065, we conclude that Westcom's actions with respect to Exhibits 60 and 73 failed to comply with D.88-09-099 and D.91-08-018, and that Westcom's failure to abide by these two decisions resulted in a violation of § 702.
The final issue to address regarding Westcom's solicitation of intraLATA traffic is what the penalty should be for Westcom's failure to comply with D.88-09-099 and D.91-08-018, and its violation of § 702. Clearly, Westcom's refusal to abide by the restrictions in both of these decisions cannot be taken lightly, even though the Commission did eventually open up the intraLATA market to competition. Westcom's violation of these decisions are clearly reflective of Westcom's fitness to continue as an IEC in California. Since Westcom is no longer operating in Citizens' service territory, any effort to revoke Westcom's operating authority at this point would be somewhat redundant. If, however, Westcom decides to commence operations again in California, the Commission should take efforts to determine why Westcom's operating authority should not be revoked. In the section entitled "Miscellaneous Issues" we have described what actions the Commission should take in the event Westcom decides to become active in California again, or if Westcom's President or other officers or shareholders of Westcom seek authorization to operate in California as a telecommunications provider using a different entity.
We will impose a penalty of $2,000 for Westcom's failure to comply with D.88-09-099, and a penalty of $2,000 for Westcom's failure to comply with D.91-08-018. Since Westcom is no longer operating in California, we will suspend imposition of the $4000 in penalties for Westcom's failure to obey and comply with D.88-09-099 and D.91-08-018 in violation of § 702. Should the circumstances described in the Miscellaneous Issues arise, this proceeding shall be reopened, and the suspension lifted, and the appropriate penalties shall be imposed for Westcom's failure to comply with D.88-09-099 and D.91-08-018.
8. Miscellaneous
Since Westcom's complaint case does not involve the filing of any application on the part of Citizens, Westcom's argument that Rule 23 somehow applies to these complaint cases is without merit. Similarly, Westcom's argument that § 532 applies is also without merit.95 (See Westcom Opening Brief, p. 32.) At the time the various complaints at issue in this proceeding were filed, Citizens tariffs were already in existence and on file with this Commission and the FCC. Citizens had the right under its filed tariffs to bill terminating usage on an assumed minutes of use basis if measurement capability was not available in the end offices.
Westcom's argument regarding the applicability of 47 USC § 203(b)(1) need not be addressed by this Commission since that federal code section involves fee schedules before the FCC.
Westcom alleges in its First Amended Complaint that a Citizens customer unlawfully terminated switched access services on standard business lines. Westcom also alleges that this issue "is the subject of another major Commission Complaint, 92-07-045." Westcom did not produce any evidence in this proceeding to support this allegation. Accordingly, no further inquiry into this allegation is necessary as part of this proceeding.
In D.92-12-038, the Commission denied Westcom's request for a temporary restraining order and preliminary injunction in C.92-09-006, and denied Citizens' request for a preliminary injunction in C.92-09-025. The Commission's reasoning for denying the respective requests was because:
"It is unlikely that any problems like those alleged in C.92-09-006 and C.92-09-025 will occur in the future because any Westcom customer in Citizens' service territory prior to August 25, 1992, in all likelihood has secured Westcom or another IEC to carry the customer's interLATA calls." (D.92-12-038, pp. 9-10.)
Since Westcom is no longer operating in Citizens' service territory, and because Citizens is not engaging in any unlawful activities, as alleged by Westcom, Westcom's request for a permanent injunction in C.92-09-006 is denied.
With respect to Citizens' request for a permanent injunction in C.92-09-025, we deny that request because Westcom is no longer operating in California as an IEC.
If, however, Westcom commences operations again in California using its existing authority granted in D.88-09-009, we direct the Telecommunications Division to open up an OII96 as to why Westcom's operating authority should not be revoked, and for the Commission to lift the suspension of the penalties, and to take action to impose and collect the appropriate penalties from Westcom for slamming, and for its violations of § 702 for its failure to comply with D.92-08-028, D.88-09-009 and D.91-09-018.
In addition, if Westcom's President or other officers or shareholders of Westcom become involved with an entity that seeks authorization to operate in California as a telecommunications provider, the Telecommunications Division and the ALJ Division are directed to review the application and to bring this to the Commission's attention in order to determine whether the application should be granted. The staff should also take steps to determine whether an OII should then be opened to consider revocation of Westcom's operating authority. The staff shall also take action to impose and collect the penalties from Westcom for its failure to obey and comply with D.92-08-028, D.88-09-009 and D.91-09-018, and for slamming.
59 In C.92-09-006, Westcom alleged that the Commission had the authority to investigate the discriminatory practices of Citizens pursuant to § 703. However, as discussed in the C.92-03-049 section, Westcom has not alleged that the interstate FGB tariff is excessive or discriminatory.
60 During the hearing, Sunde testified that he had spoken to a Mr. Howell and Foote about Exhibit 58, Westcom's request for measured FGB terminating service. Westcom's complaint alleges that Westcom had been assured by Swanson about the measurement of FGB terminating service. As noted earlier, although Swanson's deposition was taken and entered into evidence as Exhibit 111, Swanson was not asked by Sunde whether Swanson had indeed assured Westcom that such measurement would take place. 61 We note that there are some inconsistent and contradictory statements in the testimony of the witnesses for both Westcom and Citizens. However, the burden in a complaint case is on the complainant. A thorough examination of all of the evidence shows that Westcom has not met its burden of proof, and that the weight of the evidence supports Citizens' position. 62 The documents that Citizens received from Westcom are shown in Exhibit 58. The first two pages of Exhibit 58 are identical to Exhibit 38, which is made up of two pages. 63 We do not need to resolve that issue for the FGB usage that occurred during February through May 1992 because prior to June 1992, Westcom reported a PIU of 100%. (7 R.T. 557.) Since the interstate usage was reported at 100%, Citizens applied the FCC tariff. 64 Common trunks are used to carry more than one type of traffic or more than one carrier's traffic. If multiple carriers were using the same trunk group, they would probably be carrying the same type of traffic. (5 R.T. 324, 339-340.) 65 Westcom's assertion at pages 39 to 40 of its opening brief that Citizens billed "actual in some instances and assumed in others, based merely on CUCC's arbitrary decision to generate the greatest revenue possible," has no basis in fact, and is not supported by the evidence. 66 We first note that Exhibits 5 and 37 are identical. Second, the ALJ denied the admission of these two exhibits into evidence because Sunde acknowledged that Westcom generated this pseudo-bill only for the purpose of illustrating that the words could be inserted onto a real bill. (5 R.T. 400-401; 6 R.T. 408; 8 R.T. 690-691; Ex. 1, p. 32-34; Ex. 112, p. 38.) 67 Although the text of Exhibit 30 referred to "Attachment A" and "Attachment B," neither of those attachments were included as part of Exhibit 30. 68 The two California Supreme Court cases and the Commission decision cited by Westcom at pages 64 and 65 of its opening brief are not applicable to the issues before us. In those two Supreme Court cases, the issues involved tariff language which limited liability. (See E. B. Ackerman Importing Co. v. City of Los Angeles (1964) 61 Cal.2d 595, 597-598; Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 5-6.) There are no issues before us that concern a tariff provision limiting liability. In the Commission decision cited by Westcom, it involved an unclear tariff provision. (See 6 CPUC2d 432, 437.) Westcom has not alleged that Citizens' deposit requirement was unclear. Nor do we find that Citizens' tariff provision regarding deposits was unclear. 69 Westcom's complaint did not have the number of signatures required by § 1702 to challenge the deposit tariff requirement as unjust or unreasonable. In addition, Westcom could have challenged Citizens access tariffs at the FCC or at this Commission when Citizens initially tendered its tariffs for filing. Therefore, we end our inquiry into whether the deposit requirement was just or reasonable. 70 As noted on the top of that document, this call to Citizens took place after Westcom's access service had been terminated by Citizens, and Westcom was using "its new network, described as Com Systems 266." 71 It appears that Exhibit D of Exhibit 2 was Citizens' investigation into the problems that Royce and others were experiencing on or about November 11, 1992. 72 Section 702 provides in pertinent part: "Every public utility shall obey and comply with every order, decision, direction, or rule made or prescribed by the commission ... or any other matter in any way relating to or affecting its business as a public utility, and shall do everything necessary or proper to secure compliance therewith by all of its officers, agents, and employees." 73 Section 1735 provides: "An application for rehearing shall not excuse any corporation or person from complying with and obeying any order or decision, or any requirement of any order or decision of the commission theretofore made, or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the commission by order directs." 74 The current version of § 2889.5 is found in the Statutes of 1996, chapter 358, as amended by the Statutes of 1998, chapters 671 and 672. 75 The second paragraph of Westcom's "Special Notice To Telephone Subscribers" also acknowledges that it was the "new carrier" who submitted the change orders to Citizens. (Ex. 54, p. 3.) 76 We are not persuaded by Westcom's argument that Citizens had constructive notice of Westcom's new network arrangement as a result of a Westcom customer sending a copy of Exhibit 46 to Citizens. (See 6 R.T. 484.) The operation of a telephone network cannot be arranged by this kind of third party notice, especially when the LEC is an integral part of arranging the access services which enable the network to operate. 77 In Exhibit 57, a letter from Com Systems to Citizens, Com Systems appeared ready to take on new customers, and that its "new customer base in that area seems very patient." 78 In D.98-12-075, the Commission adopted criteria to consider in determining the appropriate fine. Since the slamming occurred prior to D.98-12-075, we have not discussed the fine criteria in this decision. 79 The pertinent language of Exhibit 46 was quoted earlier in the section entitled "Westcom's Violation Of D.92-08-028." 80 In the deposition of Rose, he stated that it was his wife who made the call to Citizens,and that she was told that "Westcom had gone out of business, or whatever the language they used." (Ex. 25, pp. 6-7.) 81 Citizens' records show that when Strassburg spoke with Citizens, he was advised by Citizens that Westcom was no longer in service and that the customer would need a new carrier. When Citizens spoke to Eve of Feather Publishing on August 25, 1992, she claimed that Citizens had indicated that Westcom was out of business. When the Citizens' representative asked Eve if she actually spoke with a Citizens' representative about this, Eve replied "no," and stated that she had just heard this. (Ex. 85; 7 R.T. 619-621, 623-624.) 82 The statement of Mike's TV Repair states that he was told that "Westcom is no longer offering long distance service in this area." 83 This memorandum is also part of Exhibit 44. 84 In Westcom's answer to C.92-09-025 at page 8, Westcom acknowledges that the Commission "is without jurisdiction to award damages," and that the Commission lacks the "authority to award damages disguised as reparations." 85 At page 6 of Citizens' answer to C.92-09-006, Citizens stated that the "tariffed PIC change charge is $5.00" as shown in Exhibit K of its answer. 86 Royce also testified that he had problems placing calls through AT&T. However, as discussed earlier, his problems occurred around November 1992, and not during the late August 1992 timeframe. (See Ex. 28; 5 R.T. 351, 354-355.) 87 One witness testified that she could not make any calls for three days, but acknowledged that the outage may have just been two days. (Ex. 21, pp. 4, 8-9.) The other evidence presented suggests that the call blocking problems only lasted for two days. 88 In Westcom's opening brief at page 83, Westcom cited the statement of Mike's TV Repair in Exhibit 27 in support of its assertion. However, a review of Exhibit 27 shows that the only person who allegedly made such a statement was Battagin. 89 The testimony reveals that this MCI back billing issue involved a billing to MCI from Citizens for the amount of approximately $2 million. MCI paid this bill. (See 4 R.T. 173-174, 195-196, 234-235, 273; Ex. 1, p. 22; Ex. 75, pp. 16-17.) 90 We note that any monies generated by those billings prior to July 1, 1992 went into the NECA pool. 91 D.88-09-009 is the decision which granted Westcom authority to operate as an IEC, and which imposed certain restrictions regarding the provisioning of intraLATA services. 92 Citizens' citation to C.89-10-027 in its complaint was apparently meant to refer to C.89-08-035, and the decision which approved that settlement agreement, D.91-09-018. (See Citizens' Opening Brief, p. 9.) 93 Sunde testified at the hearing that Exhibit 60 was "only sent to a very, very small portion of our customer base," and that "perhaps 20 or 30 or 40 customers" received Exhibit 60. (6 R.T. 462-465.) Sunde also testified that the correction notice, Exhibit 123, was sent to all of its customers. (8 R.T. 673.) 94 By using the calling card, a Westcom customer is able to access the 950 number of Westcom's FGB service, as opposed to the FGD equal access service. (See Exhibit 6, Tab 5, p. 7-2 and Tab 12 in C.92-03-049; 1 R.T. 78, 157-158; 2 R.T. 130-132; 3 R.T. 106.) 95 Rule 23 describes what must be attached to a rate increase application filed pursuant to § 454. The first sentence of Rule 23 provides: "This rule applies to applications for authority to raise any rate, fare, toll, rental or charge, or so to alter any classification, contract, practice, or rule as to result in such an increase." Section 532 provides in pertinent part: "Except as ... otherwise provided, no public utility shall charge, or receive a different compensation for any product or commodity furnished or to be furnished, or for any service rendered or to be rendered, than the rates ... and charges applicable thereto as specified in its schedules on file and in effect at the time...." 96 If an OII is opened, C.92-09-006 and C.92-09-025 should also be reopened.
