After hearing, the issues identified in the scoping memo that remain in contention are:
1. Whether AT&T violated its intrastate tariffs when it discontinued Complainant's enrollment in the One-Rate Calling Card Plan and charged Complainant higher rates after Complainant switched to another interexchange service provider; and
2. What sanctions and/or other relief should be ordered if a violation is found.
The parties dispute whether the filed rate doctrine applies to this complaint. AT&T avers it does, and Complainant disagrees, in reliance on Ting v. AT&T (N.D. Cal. 2002) 182 F. Supp.2d 902. The filed rate doctrine states that the relationship between a utility and the user of a service is governed by the tariff the utility has filed with the appropriate administrative agency (regulatory authority). This relationship is in the first instance contractual, but the tariff is incorporated into the contract between the utility and its customer. (Sherwood v. County of Los Angeles (1962) 203 Cal.App.2d 354, 359; Gardner v. Basich Bros. Constr. Co. (1955) 44 Cal.2d 191, 193-194.) The tariff clearly regulates the terms of service, e.g., price (Gardner).
In the wake of the Telecommunications Act of 1996, the Federal Communications Commission (FCC) "detariffed" interstate telecommunications.2 This means that the relationship between an interstate telecommunications provider and its customers is purely contractual. Any limitation of liability must be part of the contract. A detailed history of the detariffing procedures as they impacted the liability of interstate telecommunications carriers is given in Ting, supra. The changes to the federal regulatory scheme do not affect the schemes of the states, however, nor do they affect liabilities accruing before the effective date of detariffing. Congress intended to abolish the filed rate doctrine and to subject interstate telecommunications carriers to the same state consumer protection laws that govern unregulated businesses. (Id. at 908.) Some tariffs survived, and where they survive, they still govern. (Id. at 909-910.)
We have not detariffed AT&T's services and the issue here, as stated in the scoping memo, is whether AT&T violated its intrastate tariffs when it discontinued Complainant's One-Rate Plan and charged him higher standard tariffed calling card rates.
In interpreting tariffs, the Commission has held that the tariff language must be construed as a whole, and should be given a fair and reasonable construction that avoids absurd results or would render some part of the tariff a nullity. (See D.98-12-086, 1998 Cal. PUC LEXIS 1014, **19-20.)
Under Pub. Util. Code § 1702, Complainant must prove by a preponderance of evidence that AT&T has violated a specific provision of a tariff approved by the Commission. We find that AT&T did not violate its tariffs by discontinuing Complainant's enrollment in the One-Rate Calling Card Plan when he changed long distance carriers, by then permitting Complainant to continue the One-Rate Plan under the direct-billed option at his request, and by re-rating usage charged at the standard tariffed calling card rates during the period between discontinuance and re-enrollment.
The One-Rate Calling Card Plan tariff3 provides:
Enrollment in this plan may be discontinued by the Customer upon written or verbal notice to AT&T. In addition, AT&T will discontinue a Customer's subscription to the plan (unless the Customer provides written or verbal notice to the contrary) when AT&T is notified that the Customer has changed their primary interexchange carrier to a carrier other than AT&T after the Customer subscribed to this plan. Discontinuance will be effective as of the date the Customer changed their primary interexchange carrier.
The tariff language clearly permits a customer to notify AT&T that the customer does not want AT&T to discontinue the One-Rate Plan when the customer changes long distance carriers. At the time AT&T discontinued Complainant's subscription to the One-Rate Plan, the onus fell on the customer to request that the Plan be continued. Complainant made that request (albeit sometime after changing his long distance carrier), and AT&T enrolled him in the One-Rate Calling Card Plan under the direct-billed option. Although Complainant requested that AT&T adjust the charges billed at the higher standard tariffed rate, AT&T did not immediately do so. However, AT&T eventually re-rated the calls, and all of Complainant's calling card usage was billed under the One-Rate Plan. Thus, AT&T conformed to its tariffs in permitting Complainant to re-enroll in the One-Rate Plan and by adjusting Complainant's bill, but Complainant got what was required under the tariff only after filing informal and formal complaints. The practice of resolving consumer concerns only after the filing of informal and formal complaints does not reflect a good faith effort on AT&T's part to fairly address those concerns. A pattern of tardy and forced resolution of consumer concerns would call into question the adequacy of AT&T's consumer complaint procedures.
We limited the scope of this proceeding to Complainant's allegation that AT&T violated its tariff in discontinuing his One-Rate Plan and charging him higher rates. Because AT&T permitted Complainant to re-enroll in the One-Rate Plan and re-rated the calling card calls charged at the standard tariffed rate, AT&T did not violate its tariffs. Although we do not find at this time that we need order further proceedings, we will require AT&T to file a compliance report that confirms it is operating in conformance with our interpretation of its One-Rate Calling Card Plan tariff.
Under AT&T's current policy, adopted after Complainant changed long distance carriers, One-Rate Plan subscribers who continue to use their AT&T calling card after changing long distance carriers are charged standard tariffed rates until they are notified of their options. AT&T has chosen this notification process because it has determined that very few of the One-Rate Plan subscribers who change their long distance service to another carrier elect to remain on the plan if they enroll in the direct-billed calling card option. Charging standard tariffed calling card rates for the customers who prefer the direct-billed option under those rates, the overwhelming majority of customers, is consistent with AT&T's tariff.
Offering customers who change their long distance carrier the option of choosing the One-Rate Plan after they use their card similarly is consistent with AT&T's tariff. However, a customer probably would not know that he or she was being charged the standard tariffed rates until that first bill is received. The tariff permits a subscriber to make arrangements other than automatic discontinuance when the subscriber changes long distance carriers. The tariff does not state when the subscriber must request that the Plan continue. Since the tariff states no specific timeframe for providing written or verbal notice that the subscriber does not want to discontinue the Plan, it is sufficient for the subscriber to request that the Plan continue at the time the subscriber receives the bill or notice.
If the subscriber requests that the Plan continue, the subscriber has provided notice that he or she does not want the Plan to be discontinued; AT&T must then reinstate the Plan and adjust the charges it had billed at the higher standard tariffed rate. Although the notice procedure is administratively convenient for AT&T, AT&T cannot escape its obligation under the tariff to permit One-Rate Plan subscribers to elect to continue the Plan.
The record is inconclusive as to whether AT&T re-rates charges when customers elect to continue under the One-Rate Plan, although AT&T initially declined to do so for Complainant. Adjustment of charges is consistent with the tariff. Denying those adjustments is not.
Further proceedings do not appear necessary, given AT&T's change in policy around the time Complainant filed this complaint and the small number of customers who elect to continue with the One-Rate Calling Card Plan after they change long distance carriers. However, we will require AT&T to file a compliance report to confirm that AT&T is interpreting its One-Rate Calling Card Plan tariff in conformance with this opinion.
We need not address Complainant's additional allegations of tariff violations. By requiring AT&T to submit a compliance report that confirms it is interpreting its One-Rate Plan tariff in conformance with this opinion, we ensure there is no discrimination among classes of customers. Further, Complainant does not allege that AT&T permitted him to enroll in the Plan in a service territory that is not part of AT&T's tariff. We concur with AT&T that the allegations concerning geographic coverage are outside the scope of this proceeding.4
1. Prior to about October 23, 2000, Complainant subscribed to AT&T's long distance service and One-Rate Calling Card Plan.
2. AT&T discontinued Complainant's enrollment in the One-Rate Calling Card Plan as of October 23, 2000, upon notification by Pacific Bell to AT&T of Complainant's change in presubscription.
3. Complainant did not notify or contact AT&T, on or about October 23, 2000, regarding his change in presubscribed long distance carrier or his intentions regarding his calling card and his enrollment in the One-Rate Calling Card Plan.
4. Complainant established a direct-billed account for the One-Rate Plan when he realized that AT&T had changed his calling card rates.
5. On or about August 31, 2001, Complainant spoke with a customer service representative and received a $70 credit.
1. In interpreting tariffs, the tariff language must be construed as a whole and should be given a fair and reasonable construction that avoids absurd results or would render some part of the tariff a nullity.
2. Schedule Cal. PUC No. A6, Message Telecommunication Service, Section 6.3.8 (incorporating F.C.C. Tariff No. 27, Section 4.2.20.C) permits AT&T to discontinue enrollment in the One-Rate Calling Card Plan when customers change long distance carriers, and permits customers to continue the One-Rate Plan at the rates in effect under the Plan.
3. AT&T has resolved Complainant's allegations consistent with its tariff.
4. It is reasonable to require AT&T to submit a compliance report confirming that AT&T is interpreting its One-Rate Calling Card Plan tariff in conformance with this opinion.
5. It is reasonable to make this order effective today in order to ensure AT&T is operating consistent with its approved tariffs.
IT IS ORDERED that:
1. The complaint of Jeffrey A. Heyser is granted insofar as it requests that AT&T Communications of California Inc. (AT&T) permit One-Rate Calling Card Plan customers who change their primary interexchange carrier to continue their subscription to that Plan, as set forth in this opinion. The complaint is otherwise denied.
2. AT&T shall, within 30 days of the effective date of this decision, file with the Director of the Telecommunications Division a compliance report that confirms that AT&T is interpreting its One-Rate Calling Card Plan tariff in conformance with this opinion.
3. This proceeding is closed upon receipt of AT&T's compliance report.
This order is effective today.
Dated , at San Francisco, California.
2 Mandatory detariffing in interstate telecommunications became effective on August 1, 2001. (Ting, 182 F.Supp.2d at 909.) 3 Schedule Cal. PUC No. A6, Message Telecommunication Service, Section 6.3.8 incorporates by reference FCC Tariff No. 27, Section 4.2.20.C. 4 Although this proceeding did not entertain any allegations concerning the geographic territory in which the Plan is offered, it does not appear from the record that AT&T is violating its tariff by offering the Plan in several small local exchange carriers' service territories when those territories are not listed in the tariff. The tariff appears to cover that scenario by stating the Plan will be offered in other service territories as they become available.