970720.docx

DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, ID  83720-0074
[phone]
Attorney for the Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION BY MOUNTAIN PHONE COMPANY WEST, INC. TO STAY IDAPA 31.51.01.213 AND RECONNEC­TION OF PAY TELEPHONES AT THE MARSING JOB CORPS.
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CASE NO. GNR-T-95-1
STAFF RESPONSE AND COMMENTS TO PETITION
COMES NOW the Staff of the Idaho Public Utilities Commission by and through its attorney Donald L. Howell, II, Deputy Attorney General, and hereby submits these comments in the above referenced case.  On May 15, 1995, Mountain Phone Company West, Inc. (MPC)  filed a Petition requesting an immediate stay of the Commission’s Pay Telephone Rule 213 (IDAPA 31.51.01.213).  As explained in greater detail below, this rule provides for the disconnection of privately-owned pay telephones found to be in violation of the Commission’s Pay Telephone Rules, IDAPA 31.51.01.  MPC also requested that the Commission order the immediate reconnection of MPC’s “pay telephones located at the Marsing Job Corp facility which the Commission Staff had [directed the local exchange company (LEC) to disconnect] on Friday, May 12, 1995.”  Petition at 1.  Before addressing the substance of MPC’s Petition, it is important to set out the essential background information regarding this case.
BACKGROUND
On April 6 and 7, 1995, Telecommunications Staff members Joe Cusick and Belinda Anderson performed inspect several MPC payphones at two locations.  These inspections conducted at the Nampa Work Release Center and the Marsing Job Corps Center were the results of the Staff receiving customer complaints.  MCP is a private (i.e., a non-LEC) pay telephone provider.  Private payphone providers typically contract with a “premise owner” to provide payphone services to the location.  The payphone provider retains the revenues generated by the payphone caller and usually provides the premise owner with a “commission.”  Long-distance or operator assistance may be provided by an “operator service provider” (OSP).  The Staff’s inspection at both locations revealed several major and minor violation of the Commission’s pay telephone rules.(footnote: 1)  
On April 19, 1995, the Commission Staff forwarded the results of its inspections to MPC.  Staff Ex. 101.  The Staff detailed the results of its inspection for both sites.  The letter advised the Company that it had 10 days to correct all violations.  Failure to correct the violations within 10 days would subject the nonconforming payphones to disconnection without further notice pursuant to Rule 213.02(b).
In a letter dated April 27, 1995, the Company’s Operations Manager advised the Staff that MPC technicians were immediately dispatched to correct the violations at the Nampa Work Release Center and the Job Corps facilities.  Ex. 102  The manager stated in her letter that “I can assure you that all of the violations indicated [in the Staff report] have in fact been corrected.”  The manager also expressed concern that pay telephones at certain locations are notoriously difficult to maintain.  “Phone books get destroyed or stolen, telephones are damaged, and we have a never-ending struggle maintaining a stable interface with the public [switched] network.” Id.
On May 3, 1995, the Staff [Eileen, who ???] conducted a follow-up inspection to determine if the previously noted deficiencies had been corrected.  The Staff’s inspection revealed that all the Nampa Work Release discrepancies had been corrected.  Turning to the Marsing payphones, the Staff noted that although many of the minor discrepancies had been corrected, the major violations at four payphones (896-4302/4969/4393/4277) were not corrected.  More specifically, these four payphones failed to pass automatic number identification (ANI) to the OSP operator when a caller dials “0".  The Commission’s Payphone Rule 102 require that the telephone number and physical location of each pay telephone not be passed to the OSP operator served by a 911 emergency center so that the OSP operator can pass on the information to the appropriate authorities in an emergency situation.  Given the fact that these previously identified discrepancies had not been corrected by MPC and the fact that these deficiencies constituted major rule violations, the Staff instructed the LEC (in this case Citizens Telephone) to disconnect these payphones from the public switch network.  The Staff notified MPC of its disconnection action in a letter dated May 12, 1995 sent via facsimile to the Company.  Ex. 103.
BAYS COMPLAINT
On March 1, 1995, Clinton and Teressa Bays filed a written complaint against MPC with the Commission.  Ex. 104.  The Bays alleged that they were misbilled for a collect call proportly made by their son from the Community Work Release Center located in Nampa to their residence in Boise.  Their Complaint centers on a disputed collect call allegedly made and billed at 12:35 A.M. on August 23, 1994.  They allege that their son could not have made the call at this hour because work center residents are restricted to their rooms after 9:55 P.M.
The Bays also provided copies of their complaint previously filed with the Better Business Bureau.  In both Complaints, the Bays sought to have their account credited in the amount of $8.71 ($8.46 for the call and $.25 in federal excise tax).  After forwarding the Complaint to MPC for a response, the Better Business Bureau notified the Bays that MPC disputed the Bays’ claim and denied their request for credit.  Ex. 105.  As explained by the Better Business Bureau, MPC’s initial response was that the Bays’ son had indeed made the call but “the time clock in their [payphone] computer was two hours fast.”  In other words, MPC alleged that the collect call was placed at 10:35 p.m.
The Bays decline to accept MPC’s explanation and renewed their request for credit with the Better Business Bureau.  In a letter dated January 17, 1995, the Better Business Bureau notified the Bays that MPC did not respond to the Bays’ subsequent request for credit.  Ex. 106.  Consequently, the Better Business Bureau notified the Bays that it “must close our file on your Complaint.”  Id.  The Bays then turned to the Public Utilities Commission for assistance in resolving their complaint.
During the Staff’s investigation of the Bays’ complaint, the Staff also discovered another issue.  More specifically, the Staff determined that even if the Bays’ son had placed the call to his parents, the Bays were overcharged.  In other words, a review of the call information contained on the bill when compared to the MPC rates currently on file with the Commission indicate that the Bays were overcharged by $2.25 or approximately 25%.  Ex. 107.  In a letter dated May 18, 1995, the Company acknowledged that it had overcharged the Bays.  The overcharge was apparently due to a problem in the software which has subsequently been corrected.  MPC issued a refund check to Mrs. Bays in the amount of $2.25.
MPC’S PETITION
As previously mentioned, MPC petition generally raises two issues.  The first, the Company requests that the Commission stay enforcement of the pay telephone rule 213 and requests that the Commission order the reconnection of the pay telephones located at the Job Corps facility.  Second, MPC maintains that Rule 213 is legally deficient for a number of reasons set out in the petition.  Commission responds to each of these issues in turn.
A. The Stay and Reconnection
The Staff asserts that MPC’s request for immediate stay of Rule 213 is moot.  More specifically, the Staff understands that the Job Corps payphone were reconnected to public switch network on May 16, 1995.  Consequently, there is no need for the Commission to issue any orders directing the reconnection of these pay telephones.
B.  The Legality of Rule 213
MPC makes a number arguments why Rules 213 and 215 are unlawful.  These rules are set out below.
213.RESPONSIBILITY FOR COMPLIANCE--PRIVATELY- OWNED PAY TELEPHONES (Rule 213).  (1-1-94)
01.LEC Termination With Notice.  The customer of record for the public access line to which the privately-owned pay telephone is connected is responsible for compliance with the LEC's and Commission's rules for the provisions of pay telephone service, including those for installation and maintenance of instruments.  Consistent with this Commission's Telephone Customer Relations Rules 300 through 314, IDAPA 31.41.01300 through 41.01.01314, on termination of service, the LEC must terminate service to customers of record known to be in violation of Rules 101 through 299.  The Commission or its Staff shall notify the LEC in writing of customers it knows to be in violation and whose service should be terminated.(1-1-94)
02.LEC Termination Without Notice.  Immediate termination without prior notice is required if the Commission Staff notifies the LEC that the privately-owned pay telephone is(1-1-94)
a.in a pattern of non-compliance with the Commission's rules, or(1-1-94)
b.in violation of a Commission rule within one week of correcting a previous violation of the same rule.(1-1-94)
A pattern of non-compliance is defined as two similar major violations within three months.  A major violation is further defined as blocking access to the caller's OSP or MTS company of choice (Rules 103 and 201.03.c), failure to provide access to emergency services as outlined by the rules (Rules 102 and 203), failure to return coin on a busy or non-answered call (Rule 204), or failure to accept an incoming call unless exempted by the Commission (Rule 201.03.b).  Telephones installed without meeting the amplification standards as outlined by Title III of the Americans with Disabilities Act will be subject to immediate disconnection (Rule 201.02.).(6-7-95)
03.LEC Charges for Rule Violations.  If the Commission Staff notifies the LEC that a privately-owned pay telephone is suspected of being in violation of the Commission's Rules, requests a LEC technician to perform an on-site test, and a violation is confirmed by the technician, the LEC may charge the privately-owned pay telephone customer of record its tariffed premises visit charge.  (1-1-94)
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215.COMPLIANCE WITH RULES 201 THROUGH 299 (Rule 215).  The customer of record of the privately owned pay telephone is responsible for complying with the requirements of Rules 201 through 299.  These rules must be incorporated in all contracts between the customer of record and its customers (site owners or managers).  Major violations as defined in Rule 213.02. must be listed in the contract as a ground for terminating the contract.(1-1-94)
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FOOTNOTES
1:
The Commission’s Operator Service Pay Telephone Rules require that privately owned pay telephones meet certain physical and operational standards.  For example, pay telephones must have the name and address of the OSP; procedures for making billing inquiries; dialing instructions for reaching other long-distance carriers and emergency service providers; amplification devices for the hearing-impaired (where required); provide telephone directories; and other physical requirements.  Rule 213 defines a major violation as including any of the following violations:  blocking access to the caller’s OSP or long-distance carriers; failure to provide appropriate access or information to an emergency service providers; failure to return coins on a busy or no-answer call; failure to accept incoming calls unless exempted by the Commission; and failure to meet the amplification standards outlined in the Americans with Disabilities Act (ADA).