V. Westcom's Request for Compensation
As noted earlier in the Procedural Background section of this decision, Westcom seeks compensation under three theories of compensation.
Citizens opposes Westcom's request on the grounds that it is not eligible for compensation because Westcom's complaints were "filed solely for Westcom's economic gain, are of benefit only to Westcom and are of no societal or public policy importance." (Citizens Opposition To Westcom's Amended Request, p. 2.)
We first examine the intervenor compensation provisions contained in § 1801 and following. Section 1804(a)(1) requires that a customer who seeks an award for intervenor compensation, "shall, within 30 days after the prehearing conference is held, file and serve on all parties to the proceeding a notice of intent to claim compensation." Westcom did not file its initial request for compensation until June 3, 1993, more than five months after the prehearing conference.
In Westcom's initial request, it stated that: "Westcom believes that, at this stage, it can be found eligible to request compensation from either the common fund or the Advocate' Trust." Westcom inserted footnote 1 at the end of this quoted sentence, which stated:
"At this stage, it does not appear that Westcom's complaint will satisfy the requirement for compensation under Article 18.7 that participation in CPUC proceedings be `for the purpose of modifying a rate or establishing a fact or rule that may influence a rate.' "
It is apparent that when Westcom filed its initial request, Westcom's footnote was relying on an out-of-date citation to § 1803. Prior to January 1, 1993, § 1803 read as follows:
"The commission may award reasonable advocate's fees, reasonable expert witness fees, and other reasonable costs of participation or intervention in a hearing or proceeding for the purpose of modifying a rate or establishing a fact or rule that may influence a rate to any customer who complies with Section 1804 and satisfies all of the following requirements:
(a) The customer's presentation makes a substantial contribution to the adoption, in whole or in part, of the commission's order or decision.
(b) Participation or intervention without an award of fees or costs imposes a significant financial hardship."
(Stats. 1984, ch. 297, emphasis added.)
In Chapter 942 of the Statutes of 1992, which became effective on January 1, 1993, § 1803 was amended to delete the underlined quotation cited in the preceding quote. As amended, § 1803 now reads:
"The commission shall award reasonable advocate's fees, reasonable expert witness fees, and other reasonable costs of preparation for and participation in a hearing or proceeding to any customer who complies with Section 1804 and satisfies both of the following requirements:
(a) The customer's presentation makes a substantial contribution to the adoption, in whole or in part, of the commission's order or decision.
(b) Participation or intervention without an award of fees or costs imposes a significant financial hardship." (Stats. 1992, ch. 942.)
Thus, when Westcom filed its initial request for compensation on June 3, 1993, the current versions of §§ 1803 and 1804, as quoted above, were in effect. Notwithstanding Westcom's statement in footnote 1 of its initial request, Westcom's initial request was not timely filed as a notice of intent for the purpose of claiming intervenor compensation pursuant to § 1801 and following.
Furthermore, Westcom's filing of its second amended request did not cure the late filing of the initial request. The second amended request stated: "Westcom believes that, at this stage, it can be found eligible for compensation from either the common fund, the Advocate's Trust or Article 18.8 (PUC Sections 1801-1812.)" Despite Westcom's attempt to amend its request to include an intent to claim compensation under the intervenor compensation provisions, the second amended request was not filed until February 16, 1995. As noted in the March 20, 1995 ALJ ruling:
"To the extent that the second amended request was intended by Westcom to serve as a notice of intent to claim compensation pursuant to PU Code Section 1804(a)(1), with the expectation that a preliminary ruling would issue pursuant to PU Code Section 1804 (b)(1), Westcom's notice of intent is void and of no effect. It is void because Westcom did not timely submit the notice of intent. ... Even if Westcom's submission of its second amended request was allowed to relate back to June 3, 1993, the date when Westcom's initial request was filed, the notice of intent to claim compensation under Article 18.8 would still have been late because the initial request was filed five months after the date of the prehearing conference.
"In addition, Westcom's second amended request should be considered void and without effect because it was not submitted for filing until February 16, 1995, some 20 months after the initial request was filed and after the evidentiary hearings had concluded."
Based on the preceding discussion, Westcom is ineligible for intervenor compensation under the provisions of § 1801 and following.
Westcom also seeks compensation from "a common fund of reparations or other sums that may be generated" as a result of Westcom's complaint. (Westcom Initial Request, p. 2.) Under the common fund theory, compensation is awarded to one who has incurred attorneys' fees or fees and expenses from representing oneself. The compensation is paid for out of the fund that is created as a result of the litigation and which benefits others. These fees "are awarded in only the most meritorious cases," and the decision to award the fees is within "the sound discretion of the commission." (Consumers Lobby Against Monopolies vs. Public Utilities Commission (1980) 25 Cal.3d 891, 907-909, 914-915.)
The core of Westcom's allegations have to do with billing disputes, measurement capability, and the events which arose after Citizens terminated Westcom's access services. Although Westcom alleges that reparations are due to its customers and to other access service customers of Citizens, Westcom has not met its burden of proof with respect to most of the allegations it raised. In those instances where Westcom's allegations were found to have merit, the circumstances giving rise to Citizens' behavior did not merit any reparations. Since no reparations are due from Citizens, no common fund of reparations benefiting Westcom's customers or Citizens' access service customers has been created.
Since the common fund theory is rooted in the courts of equity,97 in order to be awarded compensation under a common fund theory, the requesting party's hands must be clean. To award Westcom compensation when it intentionally violated a Commission decision would send the wrong message to parties who participate in proceedings before this Commission. Westcom's failure to abide by the decisions discussed earlier leaves it with unclean hands, which should bar any request for compensation. Accordingly, Westcom's request for compensation under the theory of a common fund is denied.
Westcom also seeks compensation under the Advocates Trust Fund. In order to receive an award of fees from the Advocates Trust Fund, the following must be met:
"[W]here complainants have generated a common fund but that fund is inadequate to meet reasonable attorney or expert witness fees, where a substantial benefit has been conferred upon a party or members of an ascertainable class of persons but no convenient means are available for charging those benefitted with the cost of obtaining the benefit, or where complainants have acted as private attorneys general in vindicating an important principle of statutory or constitutional law, but no other means or fund is available for award of fees." (D.92-92-07-051, App. B, § 1.3.)
No common fund has been generated as a result of Westcom's complaints. Since no common fund has been created, no fees can be awarded to Westcom from the Advocates Trust Fund. Therefore, Westcom's request for compensation from the Advocates Trust Fund is denied.
1. C.92-03-049, C.92-09-006, C.92-09011 and C.92-09-025 were consolidated as a result of the ALJ ruling of October 2, 1992.
2. C.92-03-049, C.92-09-006, C.92-09011 and C.92-09-025 were consolidated as a result of the ALJ ruling of October 2, 1992.
3. D.92-12-038 denied the interim relief sought by Westcom in C.92-09-006, and denied the Citizens' motion to dismiss C.92-09-006.
4. D.92-12-038 also denied the interim relief sought by Citizens in C.92-09-25, and granted Citizens' motion to dismiss C.92-09-011.
5. C.92-03-049 was filed by Westcom against Citizens on March 30, 1992, and an amended complaint was filed on May 18, 1992.
6. An evidentiary hearing in C.92-03-049 was held on June 2, 1992 through June 4, 1992.
7. One of the issues of contention in C.92-03-049 was possible recording and timing differences between the switching and billing equipment of Westcom and Citizens.
8. Westcom and Citizens agreed to joint testing on July 28, 1992, and Exhibit 45 memorialized the results of the joint testing.
9. After the close of evidentiary hearings in C.92-03-049, Westcom filed a petition to set aside submission and to reopen the proceeding, which was denied in an ALJ ruling dated July 31, 1992.
10. C.92-03-049 was submitted on August 25, 1992.
11. D.92-08-028 denied Westcom's request for injunctive relief in C.92-03-049, and held that Citizens could immediately terminate service to Westcom for Westcom's failure to pay in accordance with the applicable tariff payment provision.
12. A copy of a complaint case, C.89-10-027, that Westcom filed against Citizens in 1989, was attached to Tab 2 of Exhibit 4.
13. In C.92-09-011, Westcom realleged the same allegations it had made in C.89-10-027.
14. In D.92-12-038, the Commission dismissed C.92-09-011 with prejudice because Westcom failed to allege any new information.
15. In response to an agreement reached between Westcom and Citizens prior to the hearing, Westcom deposited with the Commission the sum of $12,608.79 in C.92-03-049.
16. C.92-09-006 was filed by Westcom against Citizens on September 3, 1992.
17. Westcom's filing of its First Amended Complaint and Second Amended Complaint sought to incorporate by reference C.92-03-049, C.92-09-006 and C.92-09-011.
18. The issues raised in Westcom's petition to set aside submission and reopen C.92-03-049 were subsequently incorporated by Westcom into C.92-09-006 and its amended complaints.
19. A prehearing conference was held on January 22, 1993 in C.92-09-006, C.92-09-025 and C.92-09-011, and five days of evidentiary hearings were held in C.92-09-006 and C.92-09-025 in June 1993.
20. On September 16, 1992, Citizens filed C.92-09-025 against Westcom.
21. C.92-09-006 and C.92-09-025 were submitted upon the filing of reply briefs on August 27, 1993.
22. Westcom filed three requests for findings of eligibility for compensation on June 3, 1993, June 17, 1993, and February 16, 1995.
23. Citizens filed an opposition to the initial request and first amended request on June 28, 1993, and to the second amended request on March 13, 1995.
24. The proposed decision of the ALJ was mailed to the parties on _________, 2000.
25. Westcom contends that it is entitled to a total credit of $41,983 in C.92-03-049, and reparations for calls made to Westcom over its 800 lines.
26. When the hearing concluded in C.92-03-049, Citizens claimed that Westcom owed a total of $47,751.05.
27. At the second hearing in C.92-09-006 and C.92-09-025, Exhibit 72 reflects that Westcom owes Citizens an outstanding balance of $73,525.84.
28. Westcom subscribed to FGB and FGD access services from Citizens.
29. During the time period covered by C.92-03-049, Citizens had adopted and concurred in most of PacBell's access service tariff for California access service, and Citizens concurred in the NECA tariff provisions on file with the FCC for interstate access services.
30. Switched access service provides the ability to originate calls from an end user's premises to a customer's designated premises, and to terminate calls from a customers's designated premises to an end user's premises in the LATA where it is provided.
31. FGB access service allows an end user to dial 950-XXXX in order to access the IEC.
32. FGB service was the normal method of providing end use customers with access to IECs prior to equal access.
33. FGD access service allows an end use customer to be presubscribed to a particular IEC.
34. Both the interstate and intrastate access tariffs provide that when a customer orders FGB switched access service, the customer is required to submit a PIU factor to the LEC.
35. The PIU factor is used to determine the percentage of traffic that is to be billed under the interstate and intrastate tariffs.
36. The evidence shows that for FGB, Citizens was unable to detect the final called number dialed by the end user.
37. Both the NECA and PacBell tariffs provide that if measured access minutes are not used, the PIU factor reported on the ASR shall be the percentage that the LEC uses for interstate and intrastate billing purposes.
38. Since Westcom submitted ASRs that reflected 100% interstate usage for FGB, and because Citizens could not detect the amount of interstate and intrastate traffic on FGB service, Citizens billed Westcom under its interstate tariff.
39. Westcom's submission of its ASRs for FGB with a factor of 100% PIU was contrary to Westcom's argument that it had every motivation to declare low interstate usage and high intrastate use.
40. Westcom knew of its intrastate usage, but failed to promptly notify Citizens of this fact.
41. Although Westcom received monthly FGB bills from Citizens in 1991, which reflected billing of 100% at the interstate tariff rate, it does not appear that Westcom complained to Citizen.
42. If Westcom wanted to report a low percentage of interstate use, Westcom was free to do so under the tariffs.
43. Citizens did not dispute the PIU reported by Westcom.
44. There is nothing in Citizens' letter of June 9, 1989 to suggest that Citizens had the ability in 1989 to actually measure FGB terminating traffic.
45. Westcom and Citizens agreed to the use of depositions as exhibits in C.92-09-006 and C.92-09-025.
46. Exhibits 27 and 31 show that all of the FGB bills from March 1991 through April 1992 were based entirely on the interstate tariff rate.
47. The Commission should not interfere with how Citizens applied the interstate rate elements to the FGB bills because Westcom consistently reported that its FGB usage was 100% interstate.
48. The Commission has not opened a separate investigation into Citizens' interstate access rates, nor has the Commission decided that Citizens' interstate rates are excessive or discriminatory.
49. Citizens' application of the interstate tariff rate was not discriminatory because it was Westcom who reported a PIU factor of 100%.
50. The Commmission will not pursue the avenues for relief provided for in § 703.
51. Since the Keddie charges are based on the interstate tariff rate, the Commission lacks the jurisdiction to address those alleged overcharges.
52. Instead of objecting to the Keddie bill when Citizens first billed Westcom for those charges in September 1990, Westcom waited to include those charges as part of C.92-03-049 that it filed on March 30, 1992.
53. Only a small fraction of the amounts in dispute involved back billed amounts.
54. A review of the access service bills does not support Westcom's argument that the access service charges may have been back billed.
55. In D.88-09-061, the Commission declined to adopt a proposal which would have imposed a 90 day limit on the LEC to back bill its access service customer.
56. The equal access cutover occurred in Citizens' Susanville office on June 11, 1991, and the cutover of Citizens' Elk Grove office occurred on June 12, 1991.
57. As a result of the cutover, Westcom experienced problems with calls from its customers who dialed 1 + 7 and 1 + 916 + 7 calls.
58. When the equal access cutover took effect, if a Westcom customer in Citizens' service territory dialed 1 + 7 digits, the call was not completed as an interLATA, intraHNPA call.
59. When the equal access cutover took effect, if a Westcom customer in Citizens' service territory dialed 1 + 916 + 7, the call never reached Westcom's switch and went to a Citizens' recording.
60. Sunde testified that these dialing problems lasted at least two or three days, but probably less than 10 days, before Westcom's Susanville and Elk Grove customers could terminate their calls to other exchanges in the 916 area code.
61. After Westcom modified its switch to include the 916 in any 1 + 7 call that it received from a Westcom customer in Citizens' service territory, Westcom did not experience any further problems with a 1 + 7 call.
62. The evidence presented shows that Westcom's switch was not set up to translate the 1 + 7 as an interLATA, intraHNPA call.
63. The California tariff provision regarding FGD service states that "the number dialed by the customer's end user shall be a seven or ten-digit number for calls in the North American Numbering Plan."
64. Exhibit 23 shows that to reach a FNPA from the 916 area, it is mandatory for the caller to dial 1 + 10, and for someone calling within the 916 area, it is mandatory to dial 1 + 7.
65. Sunde assumed that because he did not restrict 1 + 10 calls on the Translations Questionnaire, that these kinds of calls would be passed on to Westcom's switch.
66. The PacBell tariff does not specify what the mandatory dialing pattern is for a FNPA call and a HNPA call.
67. The mandatory dialing patterns shown in Exhibit 23 were never mailed to Westcom.
68. Based on the Translations Questionnaire and industry practice at the time of the qual access cutover, Citizens expected Westcom to follow the 1 + 7 digit calling pattern for an interLATA intraHNPA call instead of dialing 1 + 916 + 7.
69. Neither Westcom nor Citizens could pinpoint the exact date on which the 1 + 916 + 7 problem was corrected.
70. After Citizens became aware of Westcom's problem with the 1 + 916 + 7 dialing pattern, Citizens developed a solution by allowing the permissive dialing of 1 + 916 + 7 digit calls to be sent to Westcom.
71. After the permissive dialing of 1 + 916 + 7 was allowed, this calling problem disappeared.
72. There is no evidence to suggest that Citizens stripped off the 916 from the 1 + 916 + 7 dialing pattern.
73. The Commission decisions have defined reparation as a refund or adjustment of part or all of the utility charge for a service or a group of related services.
74. The lost revenues alleged by Westcom is not related to a refund or adjustment of what Westcom was charged, but instead is a request for damages that were allegedly caused by Citizens' failure to route the 916 calls.
75. Sunde acknowledged that only about 150 to 160 calls per day were routed to the 916 area from Citizens to Westcom's FGD trunks.
76. Since the 1 + 7 problem was the result of Westcom's failure to properly configure its switch at the time of the equal access cutover, it should not be entitled to any compensation for any interLATA, intraHNPA calls that failed.
77. Westcom has failed to prove that any of the amount billed in the June 1991 bill was attributable to failed 916 calls.
78. Westcom has not offered any proof that it lost thousands of dollars as a result of the 916 call problems that lasted from the cutover to equal access to a few days afterwards.
79. Only 34 calls were made to Westcom from Citizens' service territory over Westcom's 800 line from June 11 to June 17, 1991, and not the hundreds of calls that Westcom alleges occurred.
80. Westcom should be credited $20 by Citizens for the toll free calls that Westcom had to pay as a result of the calls that may have been made to Westcom about the 1 + 916 + 7 calling problem.
81. Westcom's contention is that because its switch records show lower usage, or no usage, as compared to what Citizens billed Westcom, that Westcom was overbilled by Citizens.
82. Westcom's switch records could not be reconciled with Citizens' records because Westcom's switch records did not list the time the disputed calls were originated or terminated, or the telephone numbers of the calling party and the called party.
83. The lack of detailed call records in another complaint case involving alleged overbilling led to a dismissal of the complaint.
84. Westcom's audit reports are simply monthly or daily accumulations of usage as recorded in its switch.
85. The joint testing conducted by Westcom and Citizens in C.92-03-049 did not attempt to match the specific call records of Westcom with the call records of Citizens.
86. Based on the data presented in Exhibit 45-B and 45-C, and the other testing performed by Citizens in March 1992, this Commission cannot conclude that the alleged FGD billing errors were due to timing-related problems in Citizens' switching and billing systems.
87. Since no timing errors are evident with respect to Citizens' equipment, we are not persuaded by Westcom's argument that because its usage was substantially less than what Citizens recorded and billed, that Citizens' billing must be incorrect.
88. Westcom has not demonstrated that Citizens' application of the meet point billing tariff was contrary to any tariff.
89. Westcom's request for a permanent injunction in C.92-03-049 was previously denied in D.92-08-028.
90. The allegations in C.92-09-006 , as amended, and the allegations in C.92-09-025 are closely related.
91. Westcom's request in C.92-09-006 for a temporary restraining order and a preliminary injunction was denied in D.92-12-038.
92. Citizens' request in C.92-09-025 for a preliminary injunction was denied in D.92-12-038.
93. It would be beneficial for the Commission to note in this decision its impressions about Citizens' FGB measurement capability.
94. Rule 64 provide that although the technical rules of evidence ordinarily need not be applied, the substantial rights of the parties shall be preserved.
95. Although Westcom seeks to use Robertson's Exhibit 126 to prove that Citizens could measure FGB terminating traffic, Robertson was not made available as a witness by Westcom.
96. Based on the evidence presented in all three complaints 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.
97. Even though Foote indicated to Westcom that the FGB terminating traffic could be measured, Westcom did not order any trunks to the end offices so that actual measurement could take place.
98. Based on the record in this proceeding, we assume that the FGB bills for usage from June through August 1992 were partially billed using PacBell's 175-T tariff.
99. In June 1992, Westcom changed its PIU to reflect intrastate usage of 83% in the Elk Grove area, and 90% in the Susanville area.
100. Westcom could have avoided the FGB billings that were billed on an assumed minutes of use basis from June through August 1992 by simply tendering the deposit requested by Citizens pursuant to the tariff.
101. Sunde acknowledged that Exhibit 72 showed that Westcom did not pay its bills in a timely manner.
102. Citizens had a right to refuse Westcom's request to change its FGB service to originating only when Westcom failed to tender the deposit that Citizens demanded.
103. The deposit requirement contained in the tariffs that Citizens subscribed to, applied to all access service customers and did not single out Westcom.
104. 700 dialing is included as part of FGD service.
105. When Exhibit 31 is read in conjunction with Exhibit 42, it is clear that Citizens was only referring to the deposit amount.
106. There is insufficient evidence to find that Citizens was blocking Westcom's customers from 700 dialing.
107. The use of autodialers with preprogrammed access numbers may have caused the blocking problems encountered by Westcom's customers.
108. 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.
109. 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.
110. In order to protect Westcom's customers, Westcom was ordered in D.92-08-028 to send a specific notice to its customers if it decided not to pay the disputed amounts to the Commission or to Citizens.
111. Westcom decided not to deposit the disputed amounts with the Commission or to tender the disputed amounts to Citizens.
112. Instead of preparing the notice in the manner prescribed by D.92-08-028, Westcom prepared its own notice.
113. 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.
114. At the close of the hearing in C.92-03-049, the ALJ made Westcom aware of its right to file for rehearing.
115. Westcom failed to file an application for rehearing of D.92-08-028.
116. A deposit of the disputed amounts would have allowed Westcom to avoid sending the required notice to its customers.
117. 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.
118. Prior to January 1, 1994, § 2107 provided for a penalty of not less than $500 but no more than $2,000 for each offense.
119. The resolution of the allegations in C.92-09-006 and C.92-09-025 are not dependent upon whether Westcom was a switchless reseller.
120. In order for customers of Westcom to change to Com System's network, Citizens had to initiate a change in the PIC code for each customer.
121. Westcom did not send any LOAs directly to Citizens.
122. 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.
123. 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.
124. Other Commission decisions have held that a PIC change is a request by an IEC to change a customer's presubscribed interexchange carrier.
125. Citizens had legitimate questions of Com Systems regarding the LOAs.
126. It was the responsibility of Com Systems to verify the appropriateness of the PIC changes.
127. Slamming is the switching of a consumer's presubcribed long distance telephone carrier to another carrier without the consent of the consumer.
128. Citizens apparently gained a better understanding of the arrangement that Westcom and Com Systems had entered into sometime between August 26 and August 31, 1992.
129. Westcom switched the IEC of five customers without their authorization.
130. Exhibits 101 and 102 must be viewed together with Exhibits 46 and 54.
131. Once Citizens terminated Westcom's access services, Westcom was no longer an access service customer of Citizens, and therefore was no longer a valid IEC option.
132. Exhibits 101 and 102 did not portray Westcom unfairly.
133. Citizens was within its rights to advise end users of their freedom to select an IEC of their own choosing.
134. The evidence suggests that until August 26, 1992, Com Systems was willing to accept only business customers.
135. Despite the instructions in Exhibit 114, 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.
136. 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.
137. Had Westcom mailed out the appropriate notice in a timely manner, Westcom's customers would have had the opportunity to select an IEC before Westcom's access services were terminated.
138. Westcom did not ensure that its network merger with Com Systems was seamless since Com Systems did not verify that the LOAs were valid until August 25, 1992, and Com Systems did not start to accept residential customers until August 26, 1992.
139. According to Citizens' customer service records, Battagin had never been an IEC customer of either Westcom or Com Systems.
140. Given the other testimony regarding Citizens' lack of FGB measurement capability, we are not persuaded by Westcom's argument that the CAL-NET problem proves that Citizens was able to measure FGB terminating traffic.
141. The alleged billing problem with Execuline does not shed any light on the FGB measurement capability at issue in this proceeding.
142. The alleged billing problem with Execuline does not shed any light on the FGB measurement capability at issue in this proceeding.
143. Westcom admits to improperly sending Exhibit 60 to approximately one-third of its California customers regarding intraLATA calls.
144. Westcom acknowledges that it improperly assumed that intraLATA service by IECs was to become effective momentarily.
145. When C.92-09-025 was filed, IECs were prohibited from soliciting intraLATA calls or holding themselves out as providers of intraLATA long distance service.
146. IECs were not authorized to compete in the intraLATA market until January 1, 1995.
147. In determining whether intraLATA traffic is incidental or not depends upon the carrier's affirmative intent to hold out the offering of intraLATA traffic.
148. In both D.88-09-099 and D.91-09-018, 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 LEC.
149. 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.
150. Section 1804(a)(2) requires that a customer who seeks an award for intervenor compensation shall within 30 days after the prehearing conference is held, file and serve on all parties to the proceeding a notice of intent to claim compensation.
151. Westcom did not file its initial request for compensation until June 3, 1993, more than five months after the prehearing conference.
152. Section 1803 was amended by Chapter 942 of the Statutes of 1992, with an effective date of January 1, 1993.
153. Westcom's filing of its second amended request did not cure the late filing of its initial request for compensation.
154. Under the common fund, the compensation is paid for out of the fund that is created as a result of the litigation and which benefits others.
155. Fees and expenses from a common fund are awarded in only the most meritorious cases, and the decision to award the fees is within the sound discretion of the Commission.
156. Since no reparations are due from Citizens, no common fund of reparations benefiting Westcom's customers or Citizens' access service customers has been created.
157. In order to receive an award from the Advocates Trust Fund, a common fund must be generated.
1. Exhibits 26, 27, 28, 34 and 39 are received into evidence.
2. What was submitted as Late-Filed Exhibit No. 37 and Late-Filed Exhibit No. 39 shall be relabeled as Exhibit 46 and Exhibit 47, respectively, and shall be received into evidence.
3. The objection of Westcom to the admission of Exhibit 29 is overruled, and Exhibit 29 shall be received into evidence.
4. Exhibit 45 shall be received into evidence.
5. The transcript corrections submitted by Citizens in a letter dated July 29, 1992 shall be accepted and the corrections shall be made to the reporter's transcript.
6. Westcom's motion in its opening brief to "admit all documents contained in Westcom's Exhibit 4, including Tab 2" is denied.
7. Westcom's First Amended Complaint and Second Amended Complaint shall be treated as amendments to C.92-09-006 only.
8. Westcom's motion for the Commission to issue a decision is moot.
9. There is a need to address the Commission's power to adjudicate the FGB access services because many of the bills were billed entirely at the interstate tariff rate on file with the FCC.
10. Although the Commission has complete control over the rates charged by public utilities operating within the state, if the FCC tariff applies, then this Commission has no jurisdiction to adjudicate the matter.
11. Both the PacBell tariff and the NECA tariff provide that it is up to the IEC to provide an updated PIU.
12. Since the tariff provisions place the obligation on the IEC to submit an updated PIU factor, Westcom should not be able to rely on its inaction to excuse itself from having to pay the FGB charges.
13. Westcom has failed to meet its burden of proof that Citizens had the capability to measure the FGB terminating usage of Westcom.
14. Westcom's contention that § 703 gives the Commission jurisdiction to address the FGB services is mistaken because that code section provides that the Commission can pursue relief before the Interstate Commerce Commission or to any court of competent jurisdiction.
15. The alleged overcharge of Westcom by Citizens for FGB services that were billed at the interstate rate is an issue that this Commission has no jurisdiction over.
16. The Commission lacks the authority to address Westcom's argument that the back billed amounts exceeded the limitation period for back billing because all of the back billed amounts were billed at the interstate tariff rate.
17. Westcom's argument that the 90-day back billing limitation applies to access service billings is in error because D.86-12-025 only established a 90 day back billing limitation for the end use telephone customer.
18. The California tariff provision regarding FGD service suggests that Westcom's customer should be able to dial 1 +7 or 1 + 10 to access Westcom's switch.
19. Citizens should have allowed its switch to pass on a 1 + 916 + 7 digit call to Westcom's switch at the time the equal access cutover took effect.
20. Westcom is not entitled to any reparations for lost revenues, and the Commission has no jurisdiction to award damages.
21. Since Westcom has not presented any specific call detail to support its allegations that Citizens overbilled Westcom for FGD, Westcom has not carried its burden of proof that the overbilling took place.
22. Westcom failed to meet its burden of proof with respect to its allegation that it did not receive any traffic over its FGD lines in Elk Grove, and therefore its request for reparations is denied.
23. Since the late charges for both FGB and FGD service were based on the interstate tariffs, we decline to review the late charges associated with the interstate tariffs.
24. The Fiscal Office should be directed to transmit to Citizens the full amount that Westcom has on deposit with the Commission in C.92-03-049.
25. The Commission has the authority to review the FGB usage from June 1992 until service was terminated on August 25, 1992 because Westcom changed its PIU to reflect intrastate usage.
26. The Commission has the authority under § 453 to investigate Westcom's allegations regarding discriminatory practices with respect to the provisioning of FGB services.
27. 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.
28. Since PacBell's 175-T tariff regarding the use of assumed measurement, when no measurement capability was available, was in existence throughout the 1989 to 1992 timeframe, and because Citizens had the right to back bill Westcom, we 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.
29. Westcom has not met its burden of proof that it is entitled to a credit of $12,997 for the FGB billings for June through August 1992.
30. 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.
31. Since it appears that Citizens uniformly applied the same policy of not including anything on FGB bills which would have indicated that some of the usage was being billed on an assumed minutes of use basis, we conclude that Citizens did not subject Westcom to any prejudice or disadvantage.
32. 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.
33. Westcom's argument that the tariff sections covering deposits were intended to apply to orders for new service only is without merit because the tariff language clearly allows a deposit to be collected before a service is started, or any time after the service is provided if there is a proven history of late payments.
34. Citizens did not subject Westcom to any prejudice or disadvantage when it demanded a deposit from Westcom.
35. Citizens' acceptance of the PIU change was consistent with the PIU tariff provisions.
36. Citizens did not subject Westcom to any prejudice or disadvantage when it accepted Westcom's PIU change, but not its request to change its FGB service.
37. 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.
38. 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.
39. Tariffs are to be strictly construed and no understanding or misunderstanding of either or both of the parties is enough to change the rule.
40. Based on the evidence presented, Citizens did not disadvantage or prejudice any Westcom customer by requesting credit information from the customer.
41. The demand for a deposit for 700 service was not unlawful.
42. Citizens did not subject Westcom to any prejudice or disadvantage as a result of Citizens' demand for a deposit for 700 service because the service was functioning properly.
43. 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.
44. Once the Commission adopted D.92-08-028, any perceived deficiency with the required notice should have been raised by Westcom in an application for rehearing.
45. As a public utility subject to this Commission's jurisdiction, Westcom was obligated to obey and comply with D.92-08-028.
46. 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.
47. Westcom's argument that the Commission committed legal or factual error in D.92-08-028 cannot be used to justify Westcom's non-compliance with a Commission decision.
48. Westcom failed to obey and comply with Ordering Paragraph 5 of D.92-08-028, and this failure resulted in a violation of § 702.
49. Westcom should be penalized $2000 for its failure to comply with D.92-08-028.
50. The imposition of a penalty for Westcom's violation of § 702 for its failure to obey and comply with D.92-08-028 should be suspended.
51. Citizens' request to revoke Westcom's CPC&N should be denied at this time.
52. Although Westcom had entered into an agreement with Com Systems, whereby Com Systems would carry Westcom's traffic, a carrier change occurred because a PIC change to Com System's PIC number was needed.
53. Citizens did not delay or refuse to process the PIC changes at issue in this proceeding, and no reparations are due to Westcom, Com Systems or any of their customers.
54. Westcom should be penalized $1,000 for each customer that Westcom slammed for a total penalty of $5,000.
55. The imposition of a penalty for Westcom's slamming should be suspended.
56. The type of injuries which allegedly resulted as a result of Exhibits 101 and 102 are issues which this Commission has no jurisdiction over, and are in the nature of damages.
57. Westcom's request for reparations in connection with Citizens' alleged misrepresentations should be denied because it is nothing more than a request for damages for which this Commission has no jurisdiction to award.
58. Westcom's request that penalties be imposed against Citizens and its employees for the alleged misrepresentations should be denied.
59. 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.
60. There is 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.
61. Westcom has failed to prove that Citizens told callers that if they chose Com Systems, they could no longer use AT&T.
62. The Commission is without jurisdiction to determine whether a violation of the antitrust laws or the Unfair Practices Act occurred.
63. The Commission has the authority to consider the effects of antitrust behavior or unfair practices in certain situations.
64. 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.
65. Based on a review of the evidence, and the circumstances which led to Citizens' actions, we cannot conclude that Citizens' activities were anticompetitive or unfair.
66. Westcom failed to meet its burden of proof with respect to the allegations contained in its Second Amended Complaint to C.92-09-006.
67. Exhibits 60 and 73 evidence an affirmative intent on Westcom's part to solicit intraLATA traffic.
68. Based on the evidence presented, Westcom affirmatively intended to solicit intraLATA traffic.
69. Westcom's actions with respect to Exhibits 60 and 73 failed to comply with D.88-09-099 and D.91-08-018, and Westcom's failure to comply with those two decisions resulted in a violation of § 702.
70. Westcom's violation of Commission decisions are clearly reflective of Westcom's fitness to continue as an IEC in California.
71. Westcom should be penalized $2,000 for its failure to comply with D.88-09-099 and $2,000 for its failure to comply with D.91-08-018.
72. The imposition of the $4000 in penalties for Westcom's failure to obey and comply with D.88-09-099 and D.91-08-018 should be suspended.
73. Westcom's request for a permanent injunction in C.92-09-006, and Citizens' request for a permanent injunction in C.92-09-025 should be denied.
74. Westcom is ineligible for intervenor compensation under the provisions of § 1801 and following.
75. Since the common fund theory is rooted in the courts of equity, the requesting party's hands must be clean.
76. Westcom's failure to abide by the Commission decisions leaves it with unclean hands, which should bar any request for compensation.
77. Since no common fund has been created, no fees can be awarded to Westcom from the Advocates Trust Fund.
IT IS ORDERED that:
1. Westcom Long Distance, Inc.'s (Westcom) request for a preliminary and permanent injunction in Case (C.) 92-03-049 was previously denied in Decision (D.) 92-08-028. Except for a $20.00 credit for the calls that may have been made over Westcom's 800 number, Westcom's remaining requests in C.92-03-049 for reparations and relief are denied.
a. The Commission's Fiscal Office is directed to tender the $12,608.79 that Westcom previously deposited with the Commission, to Citizens Utilities Company of California (Citizens).
b. Citizens shall credit Westcom's account for the $20.00 and the $12,608.79.
2. Westcom's request for a temporary restraining order and a preliminary injunction in C.92-09-006 was previously denied in D.92-12-038. Westcom's request for a permanent injunction in C.92-09-006 is denied, and its remaining requests for reparations and relief are denied.
3. Citizens' request for a preliminary injunction in C.92-09-025 was previously denied in D.92-12-038. Citizens' request for a permanent injunction in C.92-09-025 is denied, and except as provided for in Ordering Paragraphs 4, 5 and 6 below, its remaining requests for reparations and relief in C.92-09-025 are denied.
4. Westcom's failure to comply with the notice required by D.92-08-028, its failure to comply with the intraLATA restrictions contained in D.88-09-009 and D.91-09-018, and its slamming of five of its former customers, warrant that penalties in the total amount of $11,000 be imposed on Westcom.
a. The monetary penalties of $11,000 shall be suspended unless either of the following conditions arise:
(1) If Westcom resumes activities in California as an interexchange carrier (IEC), the suspension of the penalties shall be lifted, and the Commission shall take action to impose and collect the $11,000 in penalties from Westcom; or if
(2) Any Westcom officer or shareholder becomes involved with an entity that seeks to operate as a provider of telecommunications services in California, the Commission staff is directed to bring this to the Commission's attention, and action shall be taken to impose and collect the $11,000 in penalties from Westcom.
5. If Westcom decides to commence operations again in California as an IEC under its present operating authority, the Telecommunications Division of the Commission is directed to take action to open an Order Instituting Investigation (OII) into why Westcom's operating authority should not be permanently revoked for its failure to comply with Commission decisions and for slamming.
6. If any of Westcom's officers or shareholders becomes involved with an entity that seeks to operate as a provider of telecommunications services in California, the Commission staff shall bring this to the Commission's attention, and the Telecommunications Division shall then take action to open an OII into why Westcom's operating authority should not be permanently revoked for its failure to comply with Commission decisions and for slamming.
7. Westcom's request for compensation under the intervenor compensation statutes, the common fund theory, and the Advocates Trust Fund is denied.
8. C.92-03-049, C.92-09-006 and C.92-09-025 are closed.
This order is effective today.
Dated , at San Francisco, California.
