20040512Reply to Staff Response.pdf

ORIGINAL
DEAN 1. MILLER (ISB No. 1968)
McDEVITT & MILLER LLP
420 WEST BANNOCK STREET
BOISE, ID 83702
Tele: [phone]
Fax: [phone]
Attorneys for DCMC. Inc.
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE STAFF'S PETITION
TO INITIATE A COMMISSION INVESTIGATION
TO DETERMINE IF OCMC, INC. VIOLATED
THE TERMS OF ITS PRICE LIST AND THE
COMMISSION'S OPERATOR SERVICES AND
PAY TELEPHONE RULE 104.04.
CASE NO. GNR- T -04-
REPLY TO STAFF RESPONSE
COMES NOW OCMC and Replies to Staffs Response dated April 28, 2004 as follows:
Introduction and Summary of Proceedin2s
Staffs Petition to initiate this investigation, dated March 15 , 2004, contained two causes
of action: first, to seek the imposition of monetary penalties under Idaho Code 62-620 for
alleged violation of Operator Service Rule 104., and second to investigate and resolve
subscriber complaints under Idaho Code 62-616.
On April 7, 2004 OCMC filed a Motion to Terminate Investigation. In its Motion OCMC
argued that the first cause of action could not be maintained because the Commission lacked
legal authority to adopt Rule 104.04 and therefore it could not be enforced under Idaho Code 62-
620. OCMC further argued there was nothing to investigate under the second cause of action
because there were not any outstanding subscriber complaints, a pre-requisite for jurisdiction
under Idaho Code 62-616.
REPLY TO STAFF RESPONSE-
Staff filed its Response to OCMC's Motion on April 29, 2004. There, Staff advanced
various reasons for the validity of Rule 104.04 and claims there are outstanding subscriber
complaints.
In this Reply, OCMC again demonstrates that Rule 104.04 cannot be enforced through
Idaho Code 62-620 and the first cause of action should therefore be dismissed. With respect to
outstanding subscriber complaints, OCMC states that if there are in fact outstanding subscriber
complaints that OCMC failed to comply with its price list by failing to provide rate quotes on
request, OCMC is ,\Tilling to work with Staff to resolve those complaints to the satisfaction of the
complaining subscriber.
While OCMC is willin2 to voluntarily comply with Rule 104.04, it cannot be penalized for
past non-compliance throu2h monetary fines.
As noted previously, when non-compliance was called to its attention, OCMC promptly
and voluntarily brought itself into compliance. And, as a matter of regulatory accommodation
OCMC is willing to comply on a prospective basis. Over a period of several months OCMC
attempted to reach a settlement with staff for an appropriate resolution of prior non-compliance
Settlement efforts proved to be unsuccessful and OCMC thus has no choice but to raise the issue
of Rule 104.04's validity.
The general rule applicable to this case, which Staff does not dispute is:
The Idaho Public Utilities Commission has no authority other than that given to it
by the legislature. It exercises a limited jurisdiction and nothing is presumed in
favor of its jurisdiction. United States v. Utah Power Light Co.98 Idaho 665
570 P.2d 1353 (1977); Lemhi Tel. Co. v. Mountain States Tel. Tel. Co.
Idaho 692 571 P.2d 753 (1977); Arrow Transp. Co. v. Idaho Public Utilities
Comm 85 Idaho 307, 379 P.2d 422 (1963). As a general rule, administrative
authorities are tribunals of limited jurisdiction and their jurisdiction is dependent
entirely upon the statutes reposing power in them and they cannot confer it upon
thenlselves, although they may determine whether they have it. If the provisions
1 The settlement discussions were pursuant to written understandings of confidentiality. If, pursuant to IPUCRP 273
the Commission wishes to inquire about settlement, aCMC is willing to waive the mutual agreement of
confidentiality .
REPLY TO STAFF RESPONSE-2
of the statutes are not met and compliance is not had with the statutes, no
jurisdiction exists. Arrow Transp. Co. v. Idaho Public Utilities Comm ', supra.
Washington Water Power v. Kootenai Environmental Alliance 99 Idaho 875, 591
2d 112 (1979).
As OCMC demonstrated in its Motion to Terminate there is nothing in Title 62 that gives the
Commission authority to regulate conditions of service for Title 62 companies, and under the
Kootenai doctrine Rule 104.04 cannot be enforced through Idaho Code 62-620.
In its Response, Staff makes several attempts-each unsuccessful-to bring itself within
the Kootenai doctrine, as discussed below.
Idaho Code 62-602ill
Staff implicitly concedes that it cannot find in Title 62 any specific grant of authority to
adopt the OSP rules and thus Staff is forced to rely on vague declarations of legislative intent.
First it turns to Idaho Code 62-602(1) which provides in part that one purpose of Title 62 is to
protect and maintain high-quality universal service at just and reasonable rates for all classes of
customers and to encourage innovation within the industry by a balanced program of regulation
and competition.
This argument fails for two reasons. First, legislative declarations of intent, while useful
in construing a statute are not a delegation of authority. Second, to come within the Kootenai
doctrine specific grants of authority are required. The Idaho Supreme Court made this clear in
Idaho Power v. Idaho Public Utilities Commission 102 Idaho 744, 639 P.2d 442 (1981). There
the Commission relied on Idaho Code 61-501 2 and 61-601 3 as its authority to adopt intervenor
funding rules. The Court held these generalized grants of authority were insufficient. If sections
61-501. INVESTMENT OF AUTHORITY. The public utilities commission is hereby vested with power and
jurisdiction to supervise and regulate every public utility in the state and to do all things necessary to carry out the
spirit and intent of the provisions of this act.
3 61-601. PRACTICE -- EVIDENCE. All hearings and investigations before the commission or any commissioner
shall be governed by this act and by rules of practice and procedure to be adopted by the commission, and in the
conduct thereof neither the commission nor any commissioner shall be bound by the technical rules of evidence.
REPLY TO STAFF RESPONSE- 3
61-501 and 61-601 were insufficient in Idaho Power it is inconceivable that 62-601(1) is
sufficient here.
Idaho Code 62-6150
Staff also relies on 62-615(3) which provides
, "
The commission shall have full power
and authority to implement the federal telecommunications act of 1996, including, but not
limited to, the power to establish unbundled network elements charges in accordance with the
act." Staff then turns to section 276 of the act (the only section of the act dealing with payphone
service) which provides in full:
(a) NONDISCRIMINATION SAFEGUARDS- After the effective date of the rules
prescribed pursuant to subsection (b), any Bell operating company that provides
payphone service--
( 1 ) shall not subsidize its payphone service directly or indirectly from its
telephone exchange service operations or its exchange access operations; and
(2) shall not prefer or discriminate in favor of its payphone service.
(b) REGULATIONS-
(1) CONTENTS OF REGULA TIONS- In order to promote competition among
payphone service providers and promote the widespread deployment of
payphone services to the benefit of the general public, within 9 months after the
date of enactment of the Telecommunications Act of 1996, the Commission shall
take all actions necessary (including any reconsideration) to prescribe regulations
that--
(A) establish a per call compensation plan to ensure that all payphone
service providers are fairly compensated for each and every completed
intrastate and interstate call using their payphone, except that emergency
calls and telecommunications relay service calls for hearing disabled
individuals shall not be subject to such compensation;
(B) discontinue the intrastate and interstate carrier access charge
payphone service elements and payments in effect on such date of
enactment, and all intrastate and interstate payphone subsidies from basic
exchange and exchange access revenues, in favor of a compensation plan
as specified in subparagraph (A);
(C) prescribe a set of non structural safeguards for Bell operating
company payphone service to implement the provisions of paragraphs
(1) and (2) of subsection (a), which safeguards shall, at a minimum
include the non structural safeguards equal to those adopted in the
Computer Inquiry-III (CC Docket No. 90-623) proceeding;
(D) provide for Bell operating company payphone service providers to
have the same right that independent payphone providers have to
negotiate with the location provider on the location provider s selecting
and contracting with, and, subject to the terms of any agreement with the
location provider, to select and contract with, the carriers that carry
interLA T A calls from their payphones unless the Commission
REPLY TO STAFF RESPONSE-
determines in the rulemaking pursuant to this section that it is not in the
public interest; and
(E) provide for all payphone service providers to have the right to
negotiate with the location provider on the location provider s selecting
and contracting with, and, subject to the terms of any agreement with the
location provider, to select and contract with, the carriers that carry
intraLA T A calls from their payphones.
(2) PUBLIC INTEREST TELEPHONES- In the rulemaking conducted pursuant
to paragraph (1), the Commission shall determine whether public interest
payphones, which are provided in the interest of public health, safety, and
welfare, in locations where there would otherwise not be a payphone, should be
maintained, and if so, ensure that such public interest payphones are supported
fairly and equitably.
(3) EXISTING CONTRACTS- Nothing in this section shall affect any existing
contracts between location providers and payphone service providers or
inter LA T A or intraLA T A carriers that are in force and effect as of the date of
enactment of the Telecommunications Act of 1996.
(c) STATE PREEMPTION- To the extent that any State requirements are inconsistent
with the Commission s regulations, the Commission s regulations on such matters shall
preempt such State requirements.
(d) DEFINITION- As used in this section, the term 'payphone service' means the
provision of public or semi-public pay telephones, the provision of inmate telephone
service in correctional institutions, and any ancillary services.
Exactly how Staff thinks section 276 aids its cause is unclear because it has nothing to do with
consumer disclosures, and even if it did it does not purport to require or authorize adoption of
rules by state comnlissions.
The Federal Operator Service Act
Staff also points to the Federal Operator Service Act (1990) (TOSCIA). Staff observes
that the Idaho Rules adopted in 2002 were intended to make the state regulatory scheme
consistent with the federal scheme, following a FCC rule making under TOSCIA. Jurisdictional
consistency is, no doubt, a reasonable regulatory policy, but it is not a legislative grant of
authority. As the Court said in Kootenai ... administrative authorities are tribunals of limited
jurisdiction and their jurisdiction is dependent entirely upon the statutes reposing power in them
and they cannot confer it upon themselves..." The Commission cannot confer power upon itself
in the name of regulatory consistency.
REPLY TO STAFF RESPONSE-5
Idaho Code 62-616 is a dispute resolution provision. It does not confer broad investi2ative
powers
Staff appears to view section 62-616 as authority for broad scale investigation into a
carrier s practices. OCMC views the statute more narrowly as a source of authority to resolve
individual disputes between a subscriber and a Title 62 company. And, by its express language it
is limited to disputes as to whether "prices and conditions of service are in conformance with
filed tariffs or price lists.
OCMC's view of the statute is confirmed by this sentence of the statute:
The commission may, by order render its decision granting or denying in whole or
in part the subscriber complaint. (Emphasis added).
The tense of the word "subscriber" is singular possessive, implying quite clearly that the
Commission authority is to resolve complaints made by individual subscribers. It is not a source
of authority to launch broad scale investigations into a carrier s practices generally.
As noted, the provision of OCM C' s price list as a statement that "rate quotes will be
provided upon request." If there are complaints from individual subscribers that have been
submitted to the Commission and that remain unresolved wherein subscribers have complained
about the failure to provide a rate quote after a request, OCMC is willing to work cooperatively
to resolve them. Otherwise, the second cause of action should also be terminated.
Respectfully submitted this \ 1-day of May, 2004.
OCMC, Inc.
Dean J. Miller
Attorneys for OCMC, Inc.
REPLY TO STAFF RESPONSE-
CERTIFICATE OF SERVICE
I certify thJlt the original and seven copies of the foregoing document were
delivered on ..-4?; zcz:lt
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
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