V. Comments on Draft Decision
The draft decision of the ALJ Thomas Pulsifer in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules and Practice and Procedure. Comments were filed on ______________, and reply comments were filed on __________________.
1. In D.98-01-022, the Commission required that memorandum accounts be established to track revenues billed for directory access services rendered to third-party competitors in order to permit a later true up and refund of any overcharges once final rates were established in the OANAD proceeding.
2. Over three years have passed since the memorandum accounting requirement was adopted, and final rates have yet to be adopted in the OANAD proceeding.
3. The original reasons that the Commission relied upon as a basis to establish the memorandum accounts and provisional rates have not changed.
4. The passage of three years since D.98-01-022 was adopted has not lessened the uncertainty as to what the level of final rates will be or when those rates will be adopted in OANAD.
5. The interim arrangement adopted in D.98-01-022 does not treat DA providers in a discriminatory manner, since provision is made for a true up and refund of any overcharges to DA providers once final rates are established in OANAD.
6. Petitioners' proposed modification to D.98-01-022 ignores the legal requirement to link lower rates to other "legitimately related" terms contained in the pertinent agreements with CLECs prescribing those rates.
7. In OP 4, of D.98-01-042, the Commission expressly authorized the true up of amounts booked in the memorandum accounts to apply retroactively to the effective date of Pacific's directory access tariffs.
8. As noted in the arbitrator's report in A.00-01-022, Pacific's DALIS tariff calls for a charge of five cents per listing each time the provider gives out a listing to one of its customers through its own DA service.
9. As found in the A.00-01-022 arbitration proceeding, AT&T had no mechanism in place to track the number of times that it gave out DA information from a listing provided through Pacific's DALIS tariff.
10. If Pacific is unable to independently enforce the per-query charge in the case of AT&T, there is no reason to believe that Pacific could independently track per-query transactions of other DA providers utilizing listings under the terms of Pacific's DALIS tariff.
11. It is not reasonable to include a provision in the DALIS tariff for a five-cents-per-query charge that is not subject to independent tracking or enforcement by Pacific.
1. Petitioners have satisfied the procedural requirements of Rule 47 relating to petitions for modification.
2. By making the ILECs' directory access rates provisional in D.98-01-022 and subject to subsequent true up, the Commission provided a reasonable safeguard against third-party DA competitors being subject to unfair discrimination in paying for access to DA databases.
3. Although three years have passed without establishing final rates for DA access, there has been no change in the underlying rationale supporting the memorandum accounts as noted in COL 2 above.
4. D.97-01-042 has already adopted rules requiring that all third-party DA providers granted access to DA data on a nondiscriminatory basis.
5. In the FCC's January 23, 2001 Order, the FCC held that a third-party DA provider who acts as an agent for a CLC is entitled to receive access to DA database listings under the same terms contracted by its CLC principal.
6. The Petitioners' proposed modification would ignore the relationship between the DA provider and its CLC principal, but instead would permit any DA provider to demand whatever rate was offered to any DA provider or CLC, irrespective of whether there was an agent-principal relationship or not.
7. Setting a new interim rate for all DA providers equal to the lowest amounts that were charged to any other provider for DA access during the period since January 1997 would be inconsistent with recent court decisions interpreting the "pick-and-choose" provisions of interconnection agreements.
8. Under recent court decisions, an ILEC is entitled to require a requesting carrier to accept all terms that are "legitimately related" to the desired term such as prices paid for DA access.
9. Petitioners claim is not supported that the current interim treatment adopted in D.98-01-022 results in discriminatory treatment to DA providers.
10. There is no need to modify D.98-01-022 in order for DA agents to avail themselves of the contract provisions of their CLC principal since the federal rules already independently provide for that.
11. The true-up of rates provided for in D.98-01-022 was intended to be applied retroactively to the date that the DA rates went into effect, rather than the effective date of D.98-01-022.
12. Pacific's DALIS should be amended to remove the five cents per query charge in view of the lack of enforceability of this provision of the tariff.
13. Pacific should be required to rebate previously paid access charges to the extent any DA provider can document that it has previously paid Pacific relating to the five-cents-per query charge.
14. On a going forward basis, we shall require that any interim rates paid to Pacific for DA access exclude any charge for access based on the number of customer DA queries that were provided through Pacific's DA database.
IT IS ORDERED that:
1. The Petition for Modification of Decision (D.) 98-01-022 filed by Metro One Telecommunications, Inc. and InfoNXX, Inc. is hereby denied in part.
2. A more limited modification to D.98-01-022 shall be made as follows:
a. The following Conclusion of Law (COL) 7 shall be added following COL 6:
Pacific's DALIS tariff should be amended to remove the per-listing charge that is applied each time DA listing information is given out to end-use customers using Pacific's database.
b. The following additional ordering paragraphs shall be added following Ordering Paragraph 5:
Within 30 days from the effective date of today's order modifying D. 98-01-022, Pacific shall file an amendment to its DALIS tariff in accordance with General Order 96-A to remove the charge that is required each time DA listing information is given out to end-use customers from Pacific's database.
The interim provisional rates charged by Pacific for DA access on a prospective basis shall exclude any per-listing query charge that would otherwise be payable each time that a DA provider gave out DA listing information using Pacific's DA database. These interim provisional rates shall remain in effect pending the establishment of final DA access rates in the OANAD proceeding, and true up of final billing adjustments based upon the OANAD rates.
Pacific shall be required to rebate to any DA provider that has previously paid Pacific relating to the per-query listing charge to the extent any DA provider produces documentation to Pacific of the amount that it has paid for such charges. Documentation in the form of copies of past billing records shall be acceptable evidence confirming the amount of such charges. Pacific shall disburse the rebates to qualifying DA providers within 30 days of receipt of documentation confirming the amount of such charges.
This order is effective today.
Dated , at San Francisco, California.
