Discussion

The issues we address concern alleged violations of Commission rules and regulations by AT&T in the areas of service quality, listings, and overbilling and by Pacific in the areas of service quality and overbilling. In addition, we examine whether AT&T and Pacific improperly restricted Complainant's contacts.² Although we find no outright violation by Defendants of our rules and regulations in the areas of service quality, overbilling and written contact restrictions, it is clear that Complainant's business lines resold by AT&T do not provide the service quality Complainant expected for his business. Similarly, the restrictions on Complainant's contacts with Pacific and AT&T for his business lines do not permit Complainant the ability to operate his business in the manner necessary for it to function efficiently.

Complainant presented 113 attachments to his testimony and an additional 29 attachments to his briefs. Although we have reviewed all the material Complainant presented, we do not discuss each attachment, because not all of the attachments advance our inquiry into Complainant's allegations. Many documents show problems Complainant experienced, including Defendants' handling of those problems, but those problems, however frustrating, fail to rise to violations of Defendants' tariffs and our rules and regulations.³ Other documentation shows problems that were resolved before Complainant filed this complaint or during the pendency of the complaint. Notwithstanding the failure to show violations, the documentation does demonstrate Complainant's unsuccessful attempts to resolve one set of problems by switching carriers or types of service that only unleashed more problems without resolving the intended problem.

We affirm the ALJ rulings granting Complainant's amendment to complaint and partially granting Pacific's motion to dismiss.

1. Defendants Provide Reasonable Service Quality to Complainant

Pub. Util. Code § 451 requires a utility to furnish "such adequate, efficient, just, and reasonable service" as is necessary to "promote the safety, health, comfort, and convenience of its patrons." Pub. Util. Code § 2896(c) requires telephone corporations to provide reasonable statewide service quality standards for network technical quality and repair.

Complainant has shown that he had service quality problems at various times with four of his lines, and especially his two business lines, prior to filing this complaint and alleges those problems violate § 451. Complainant reported more problems with his business lines than his residential lines even before he switched the residential lines to broadband service. Complainant's and Pacific's records differ slightly concerning the extent of Complainant's reported service quality problems from late 1996 through 1997. (Exhibit 1, various attachments, and Exhibit 3, Attachment 2.) Pacific relies on trouble reports, and Complainant relies on correspondence with Pacific and AT&T, among other documentation. For example, AT&T issued a credit for a September 17, 1997 trouble report (Exhibit 1, Attachment 11), but Pacific does not list that report. Complainant also states that he reported a service outage to a Pacific supervisor on October 29, 1996. Pacific has no record of that report, although Complainant states Pacific made repairs on November 6, 1996. (Exhibit 1, p. 8.) Despite these discrepancies, replacement of a Digital Added Main Line (DAML), illustrates that there were ongoing problems in the second half of 1996.

Pacific and Complainant disagree as to whether trouble was found on one business line when Complainant reported problems in late 2000. Complainant relies on the AT&T technician's report that stated Complainant's credit card did not work on that line. (Exhibit 1, Attachment 16.) Although Pacific states it did not find a problem, on January 30, 2001 Pacific did replace the cable pair it had provided to Complainant in 1996. Because Pacific did repair the line and because Complainant no longer experiences problems with that line, the disagreement on whether or not there was a problem is irrelevant.

Complainant has theories about the cause(s) of service quality problems on his lines, including defective pairs and non-paired wires that receive other signals. Complainant and Pacific disagree on the meaning of notations in Pacific's documentation that Complainant alleges proves these theories. We need not determine the precise cause of Complainant's service quality problems, because defendants addressed them by making appropriate repairs and issuing credits. Those service quality problems were resolved prior to the filing of this complaint and no new service quality issues have arisen during the pendency of this complaint.

Complainant also alleges Pacific failed to make timely repairs and states Pacific failed to show up for eight days in 1996 when Complainant reported a problem that Pacific stated was due to a cable failure. Pacific's records show that on some occasions Pacific dispatched a technician on the same day it prepared a trouble ticket; on other occasions Pacific arrived the next day; one time two days elapsed and on another occasion it was three days before a technician visited Complainant's residence. Some trouble tickets do not identify the response time. (Exhibit 3, Attachment 2.) In D.01-12-021, we found that Pacific had failed to maintain or improve service quality, a condition of the SBC/Pacific Telesis merger, due to the increase in mean time to restore service to residential customers.⁴ However, not all trouble Complainant reported was loss of service. Complainant also reported static and other interference problems. Although delays in restoring Complainant's service were a problem experienced by other Pacific customers at the time, Pacific made necessary repairs and offered Complainant compensation for the delays, which he declined.

We find that AT&T and Pacific have not violated Pub. Util. Code § 451 in providing service to Complainant. The circumstances presented in this complaint do not justify a finding that Pacific and AT&T violated our rules and regulations. AT&T and Pacific responded to Complainant's service quality problems by providing repairs and issuing credits. Complainant currently has no service quality problems and has not reported trouble on his lines since before he filed this complaint.⁵ Pacific made reasonable efforts to provide an acceptable level of service, including replacing copper pairs and serving terminals and removing the DAML. As a result, Complainant's service quality is adequate within the parameters of our rules and regulations.

Although we find that Defendants did not violate our rules and regulations in providing service to Complainant, Complainant did not receive the level of service he expected and that he believed necessary to successfully run his business. AT&T admits that Complainant would receive better service for his business lines if his business, now located in his home, instead were located in a commercial area. Further, Complainant states he receives better service quality with his broadband service, only available to residential subscribers, than with his resale business service. Defendants do not disagree with that assertion.

Complainant switched service providers in the hopes of obtaining better service quality, but found that he was unable to do so through resale service. Although we do not find that Defendants violated our rules in provisioning service to Complainant, a business using credit cards would expect that the service provided would enable transactions to be conducted. Complainant had difficulty with credit card transactions and facsimile transmissions. Service quality problems continued for a long time, over four years. And, although we find Defendants did not violate their tariffs or our rules and regulations in handling Complainant's service quality problems, we find that Defendants could have addressed Complainant's service quality problems generically in order to ensure that Complainant could conduct his business. As discussed below, we will order AT&T to provide Complainant with a more comprehensive solution to his communications issues.

Defendants note that Complainant's service quality allegations are barred by the applicable statute of limitations. Section 735 limits claims to two years preceding the filing of a complaint, and Complainant experienced problems prior to that time. (See Pacific Bell vs. AT&T Communications of California Inc., D.98-05-038, 80 CPUC 3d 302.) Complainant responds that the statute of limitations does not apply because he recently discovered information concerning his service quality allegations.

We disagree with Complainant. We have ruled that the statute of limitations is tolled until a plaintiff discovers or should have discovered the facts essential to a cause of action. (TURN vs. Pacific Bell, D.93-05-062, 49 CPUC 2d 299, 311, citing CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal. App. 3d 1525, 1536, Leaf v. City of San Mateo (1980) 104 Ca. App. 3d 398.) We further explained that the statute of limitations begins to run when a plaintiff is aware of his or her injury and its negligent cause. (TURN vs. Pacific Bell, D.94-04-057, 54 CPUC 2d 122, 126.) Service quality issues are obvious, and Complainant reported problems with his service to Defendants. Increased knowledge of why service quality problems existed, in and of itself, is insufficient to toll the statute of limitations. Instead, Complainant must discover a negligent cause of service quality problems that violated our rules and regulations. Nothing in the record indicates Defendants concealed any information concerning service quality problems experienced by Complainant, including a negligent cause of Complainant's problem that directly violated Complainant's safety, health, comfort, and convenience. Although the statute of limitations would bar our consideration of some of Complainant's service quality issues, our finding that Defendants did not violate our rules and regulations in the handling of Complainant's service quality problems eliminates the need to distinguish between service quality issues barred by the statute of limitations and those we must address in this proceeding.

2. Listings

Complainant contends Pacific and AT&T dropped his operator listings at least 24 times and did not credit him for all the times his listings were not published. Complainant further contends that his unpublished phone numbers have been published in phone books and CD and Internet directories. Complainant lists seven occasions when he had problems with listings but allegedly did not receive timely resolution of the problem. (Exhibit 1, pp. 46-50.) Complainant further alleges that one credit for listings problems was incomplete. As Complainant notes, Attachment 89 to Exhibit 1 does not include JTR Publishing from August 17, 1998 to October 15, 1998 and lists Complainant's home address under a second JTR Publishing listing from January 13, 1998 through August 17, 1998 and from October 15, 1998 to November 10, 1998.

AT&T states Complainant's business directory listings were incorrect for limited periods of time and that Complainant's residential address was deleted from his business listings on October 30, 2001. AT&T admits that AT&T's Internet directory continued to publish Complainant's residential address until December 5, 2001. AT&T states that at the time Complainant requested an unlisted number, there was a misunderstanding over whether Complainant wanted his residential listing non-listed (appears in directory assistance) or non-published; when Complainant complained, however, AT&T promptly changed the listing from non-listed to non-published. AT&T shows credits provided Complainant for most of the period referenced by Complainant. (Exhibit 4, Attachment 3.) Of those adjustments, two appear to cover listings problems identified by Complainant.

AT&T asserts Complainant's listings claims are barred by the applicable statute of limitations. Complainant responds that the statute of limitations does not apply because he recently discovered information concerning his listings. Pacific's records, to which Complainant did not have access prior to filing this complaint, show the listings changes by date and phone number and provided Complainant with accurate information on when his listings changed. Complainant's recent discovery of when his listings changed is sufficient to toll the statute of limitations. AT&T does not address Complainant's claimed overcharges for earlier incorrect listings because AT&T believes they are barred by the statute of limitations. AT&T is incorrect. We will order AT&T to calculate and refund overcharges for incorrect listings in 1998 using the methodology AT&T applied in Exhibit 4, Attachment 3.

Section 2891.1 prohibits carriers from selling or licensing the listings of residential subscribers assigned an unlisted or unpublished number. Although we require competitive local exchange carriers to make available their directory listings to incumbent local exchange carriers for release to third party directory assistance vendors, we exclude from that requirement unpublished listings and related customer privacy rights. (D.00-10-026, 2000 Cal. PUC LEXIS 796 *16.) Complainant's residential number and address were included in Pacific's directories and Complainant's residential address was included on AT&T's Internet directory. AT&T states it did not sell Complainant's number. However, AT&T did grant Pacific and Anywho.com the right to publish Complainant's number; in effect AT&T licensed Complainant's unlisted number. We have found that nonpublished customers have the right to privacy for their addresses. (See D.97-01-042, 70 CPUC 2d 661.)

We find AT&T violated Section 2891.1 when it released information that allowed Complainant's residential number to be published between April 2000 and June 2000 and between May 18 and June 7, 2001.⁶ The violation was limited in time and in scope, since the number only was available in directory assistance.

AT&T did not violate Complainant's privacy rights when it released information that allowed Complainant's residential address to be published, without the street number, in Complainant's business listing in 1998, because at the time AT&T published the partial address, that partial address was published in Complainant's residential listing. Subscribers have an expectation in the privacy of their residential addresses when they elect not to publish those addresses. Where the address already is published, publishing that address in a business listing is a listing error but not a privacy violation. Because Complainant writes and publishes his books, an individual seeking an address for JTR Publishing could have found the partial address under Complainant's residential listing at that time.

We do not decide whether AT&T violated Complainant's privacy rights when it published Complainant's residential address on its Internet directory, because at this time we do not appear to have jurisdiction over Internet directory publishing. We have noted that under present regulatory circumstances, Internet services are "offered in an arena unregulated by this Commission or any other State or Federal regulatory body." (D.00-09-043, 2000 Cal. PUC LEXIS 699.) We have viewed directory publishing as a service, and we also find Internet directory publishing a service.

We decline to fine AT&T for violating Section 2891.1 due to the limited nature of the violation. However, the violation and the continuing listings mistakes were another result of Complainant's attempt to resolve service quality issues by switching carriers. As discussed below, we will order relief designed to avoid future problems.

3. Defendants Resolved or Agreed to Resolve Billing Problems

Complainant contends AT&T overcharged him and could not fix reported billing problems in violation of Pub. Util. Code §451. AT&T provides a list of the credits issued to Complainant and identifies the specific billing problems Complainant experienced when he switched to AT&T resale service and again when he switched to AT&T's broadband service. Although AT&T's bills were incorrect, AT&T corrected them when Complainant brought the problem to AT&T's attention.

Billing problems alone are insufficient to find a violation of our rules and regulations. When the utility resolves the billing problem and issues appropriate credits we can do no more for the customer. Complainant contends Pacific overcharged him when he started service and did not fully credit his account by $6.00. Pacific does not disagree. Therefore, we will order Pacific to refund Complainant the remaining credit of $6.00, if Pacific has not issued that credit.

4. AT&T Did Not Improperly Restrict Long Distance Service

Complainant alleges AT&T improperly restricted his long distance service 11 times, often after he corresponded with AT&T's executive complaint team and once after the Commission's Consumer Affairs Branch (CAB) informed him that his service would not be restricted. AT&T responds that Complainant's service was restricted on October 22, 1999, because he did not deposit the full amount of the disputed bill with the Commission, as required under AT&T's tariff. AT&T also disputes that Complainant's service was restricted on August 6, 2001, because the number to which Complainant was attempting to forward his calls was out of service. (Exhibit 4, p. 9.) AT&T states that the additional restrictions challenged by Complainant are barred by the statute of limitations.

We find that issues regarding service restrictions two years prior to filing this complaint are barred by the statute of limitations. Service restrictions, like service quality issues, are obvious. Complainant knew AT&T restricted his long distance service due to ongoing billing disputes. Complainant's testimony has not provided any information that could toll the statute of limitations on this issue. Thus, we will not consider the earlier service restrictions.

We find that AT&T did not improperly restrict Complainant's long distance service after Complainant brought an informal complaint to the Commission, but do so reluctantly. AT&T's tariff permits long distance restrictions if the full amount of a disputed bill is not placed on deposit with the Commission. Since Complainant did not deposit the full amount, AT&T restricted his long distance service. However, CAB had told Complainant his service would not be restricted and that they would contact AT&T. Under the circumstances, AT&T should not have restricted Complainant's service without first telling Complainant and CAB that Complainant had not deposited the full disputed amount with the Commission and permitting Complainant to correct that omission. The other alleged restriction was instead a problem with another number. Complainant could have forwarded his number to other numbers but states he did not try to. We find that AT&T did not improperly restrict Complainant's long distance service in that instance.

5. Defendants Did Not Wrongfully Limit Complainant to Written Contacts

Complainant alleges AT&T and Pacific improperly restricted Complainant's contacts with them. Complainant also alleges that AT&T could not restrict his contacts, because AT&T does not have a tariff provision, which permits such restriction. AT&T and Pacific assert that Complainant's contacts with their employees were harassing and unlawful, in that Complainant recorded calls without permission.

In D.95-07-054, we adopted consumer protection rules for customers of competitive local exchange carriers (CLEC). (D.95-07-054, Appendix B.) In those rules, we did not address restricting contacts between the customer and a CLEC such as AT&T; therefore, we did not require AT&T to tariff such restrictions. In the absence of an AT&T provision governing restricted contacts, it is reasonable and consistent with our stated intent to protect CLEC customers from unfair business practices to use Pacific's Rule 11 as a guideline in reviewing AT&T's actions. Pacific's Rule 11 provides that, if the utility receives calls from a customer who intends to annoy and uses obscene language or threatens to inflict injury, the utility "shall make reasonable efforts to persuade the customer not to place such calls, including refusal to transact business with the customer except by written communication." The testimony generally supports Defendants having grounds to impose the restriction, although there is little to document any threats made by Complainant. Complainant provided documentation that showed Pacific and AT&T both believed that Complainant made calls with the intent to annoy. (Exhibit 1, Attachment 7.) In addition, Pacific documented that verbal threats were made in person to Pacific employees. (Id.) AT&T presented evidence that Complainant placed calls to employees' homes and that those employees felt threatened. (Exhibit 4, pp. 6-7.) All parties concur that Complainant recorded calls with Defendants' employees without their consent.

Complainant believes Pacific imposed the written restriction because he filed an informal complaint with the Commission's Consumer Affairs Branch. Although Pacific restricted Complainant's contacts after Complainant presented his informal complaint, there is nothing on the record that establishes a link between the two. AT&T imposed a written contact restriction after Complainant had been its customer for approximately two years and independent of any complaint to the Commission.

We find Complainant has not proved that AT&T and Pacific improperly imposed a written contact restriction. Although we find Defendants had grounds to impose the restriction, we also note that the restriction appears to have exacerbated strained relationships without simultaneously resolving Complainant's ongoing issues. In addition, restrictions on contacts do not support prompt resolution of telecommunications problems faced by small businesses. Complainant's proposal that we order a single contact for his communications problems is not a workable solution, because AT&T appears to have tried that route without success. As discussed below, we will order AT&T to provide Complainant with an alternate avenue to report his communications problems.

6. Relief Awarded to Complainant

As discussed above, we find relief is necessary to ensure that in the future Complainant does not encounter the multitude of problems he has experienced in the past. By this decision, we order AT&T to provide Complainant with on-line management of his business telecommunications needs, including, if feasible, service quality monitoring and trouble reporting, access to listings information and requests for changes to listings, and billing information. AT&T shall waive nonrecurring charges for setting up on-line management of Complainant's telecommunications needs other than charges for necessary equipment. By access to computer-based on-line management of his business lines, Complainant should have the means to promptly address future problems without escalating his complaints.

³ Under Pub. Util. Code § 1702, Complainant must prove by a preponderance of evidence that AT&T and Pacific have violated Commission rules and regulations.