20100603final_order_no_31099.pdf

Office of the Secretary
Service Date
June 3, 2010
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
GRACE JOINT SCHOOL DISTRICT NO. 148, )
CASE NO. QWE-I0-
COMPLAINANT
QWEST CORPORATION,ORDER NO. 31099
RESPONDENT.
On May 6, 2010, the Commission received a "fonnal" complaint from Grace Joint
School District No. 148 (District) against Qwest Corporation. Brian Stutzman of Business
Phone Specialists, Inc. (BPS) is acting on behalf of the District. The District claimed that
telephone equipment at Thatcher Elementary School was damaged by a power surge on the
telephone line during the process of "porting" (i., changing) service from another telephone
company to Qwest. The District maintained Qwest caused the surge damage and requested
Qwest pay $1 500 to partially cover the cost of replacing the damaged telephone equipment.
Qwest denied responsibility for the damage. After reviewing the complaint, the Commission
issues this Order dismissing the complaint.
BACKGROUND
The District and Mr. Stutzman claimed that a "power surge" damaged telephone
equipment at Thatcher Elementary during the process of porting telephone service from Paetec
its fonner telecommunications provider, to Qwest. BPS was retained by the District
investigate and repair or replace the damaged equipment. BPS detennined the damaged
equipment could not be repaired cost-effectively and subsequently replaced the equipment. Mr.
Stutzman alleged that a BPS technician detennined that a Qwest-generated power surge on the
telephone line caused the damage to the telephone system. BPS billed the District $1 675 for the
new equipment and sought recovery of$1 500, constituting the damage claim against Qwest.
On December 7 2009, the District submitted a written claim to Qwest. On December
, 2009, Joni L. Duran, Qwest Manager of Service Claims, sent a reply letter to the District
denying the claim. Ms. Duran asserted that the basic phone lines used by the District at the
School are not designed for, or capable of, carrying the amount of amperage that could ruin a
ORDER NO. 31099
phone system. She went on to say that a Qwest technician, sent on November 5 , 2009, was
unable to locate any trouble in the Qwest facilities or any unusual amperage on the lines.
On December 23 , 2009, the District sent a fax to the Qwest Service Claims
department to request the claim be submitted to a supervisor. According to Qwest, the claim was
again denied.
On February 5 , 2010, Brian Stutzman faxed a letter to Qwest asking for
reconsideration of the claim. On February 18 2010, Ms. Duran sent another reply letter denying
the claim. The Qwest letter cited the Company s Exchange and Network Service Catalog 2.4.
limiting Qwest's damage liability to "gross negligence or willful misconduct." Ms. Duran asked
Mr. Stutzman in the letter to provide any infonnation he had that established gross negligence or
willful misconduct by Qwest.
On February 25, 2010, Mr. Stutzman faxed the vendor bill to Qwest along with a
copy of Qwest's February 18 letter. Mr. Stutzman apparently wrote a note in the margin of the
February 18 Qwest letter that stated "blowing up a phone system at cutover" and circled the
words "gross negligence" in the letter. Qwest did not respond to this facsimile.
On March 23 , 2010, Mr. Stutzman sent another letter to Qwest, again with a copy of
the BPS invoice, saying he had not received the anticipated check and requested that Ms. Duran
call him. On April 19, 2010, Mr. Stutzman went to Denver and hand-delivered yet another copy
of the March 23 2010, letter and invoice. On April 20, 2010, Ms. Duran left a voice message for
Mr. Stutzman reiterating the claim was denied. On April 26, 2010, Mr. Stutzman left a message
for Ms. Duran indicating he would come to Denver again, if necessary, to discuss the claim.
On April 28 , 2010, the District filed an infonnal complaint with the Commission.
Staff indicated to Mr. Stutzman that although it could assist him with submission of a damage
claim as part of the infonnal complaint process, Staff could not detennine the legitimacy of the
claim or require the Company to pay damages for which it denied responsibility. Ultimately,
Staff asserted it is not within the Commission s jurisdiction to award damages. Staff
recommended the District pursue its damage claim through the Small Claims Court.
The District and Mr. Stutzman were not satisfied with the outcome of the informal
complaint. They subsequently filed this "fonnal" complaint.
ORDER NO. 31099
THE FORMAL COMPLAINT
In the formal complaint, Mr. Stutzman asserted two claims. First, he insisted the
Commission has jurisdiction over this matter because the Company acted with "gross
negligence" when it allegedly caused the power surge on the line. He observed that the
Company s Exchange and Network Services Catalog contains a general liability limitation. In
pertinent part, Section 2.4.1 A states:
NO LIABILITY SHALL ATTACH TO THE COMPANY FOR
DAMAGES ARISING FROM ERRORS , MISTAKES, OMISSIONS
INTERRUPTIONS OR DELAYS OF THE COMPANY
. .
. IN THE
COURSE OF ESTABLISHING, FURNISHING, ARRANGING
MOVING, TERMINATING, OR CHANGING THE SERVICE OR
FACILITIES
. .
IN THE ABSENCE OF GROSS NEGLIGENCE
WILLFUL MISCONDUCT.
(Capitals in original and underline added). He thus concluded that actions of gross negligence or
willful misconduct were within the Commission s jurisdiction.
Second, Mr. Stutzman insisted that Qwest has not been responsive to his claims
sending form letters but not returning his calls. He pointed out that the Commission
Telephone Customer Relations Rule 401.02 provides that parties may have a face-to-face
meeting to resolve complaints. Rule 401.02 (emphasis added) states:
Procedure on Review. The Commission will process these requests as
informal complaints pursuant to the Commission s Rules of Procedure,
ID AP A 31. 01. 01. 000 et seq. Telephone service shall not be terminated nor
shall termination be threatened by notice or otherwise in connection with the
subject matter of the complaint while the complaint is pending before the
Commission so long as the customer continues to pay all amounts not in
dispute, including current telephone bills. Upon request by any party, the
parties and a representative of the Commission shall be required to meet and
confer.
Consequently, the District asked the Commission to find that Qwest acted with gross negligence
and did not adequately respond to the claim.
DISCUSSION AND FINDINGS
After reviewing the record compiled in this matter, the Commission finds there is
sufficient (although conflicting) evidence in the record for us to decide this matter. In addition
Mr. Stutzman participated in our review of this matter at our decision meeting held May 24
2010.
ORDER NO. 31099
In essence, BPS and the School District seek recovery of its damages for the alleged
gross negligence of Qwest. Qwest provides telecommunications services pursuant to Title 62.
Idaho Code 9 62-616 provides that the Commission shall have the authority to investigate and
resolve telecommunication complaints which concern the quality and availability of local
exchange service; or whether the price and conditions of service are in conformance with filed
price lists; or whether the carrier acted in compliance with the Commission s Telephone
Customer Relations Rules.See also Idaho Code 9 62-622(5); IDAPA 31.41.01.The
Commission is an agency of limited jurisdiction and may only exercise that authority delegated
to it by the Legislature. Washington Water Power v. Kootenai Environmental Alliance 99 Idaho
875 , 591 P.2d 122 (1979).
There is nothing in the Telecommunications Act that authorizes the Commission to
award damages for the negligence of a telecommunications company. Idaho Code 9962-601
seq.Although the Commission has authority to recover "civil penalties" from telephone
corporations that violate statutes, orders or rules, civil penalties are not the same as damages.
Idaho Code 9 62-620. In particular, civil penalties are brought in the name of the State of Idaho
and such penalties recovered by the State are paid into the General Fund. Id.
Since the Commission s inception in 1913, it has not been authorized to award
damages under the Public Utilities Act. More specifically, Idaho Code 9 61-702 provides that
any corporation or person" injured by the conduct of a public utility may file an "action to
recover such loss, damage or injury. . . in any court of competent jurisdiction
. . ..
" (Emphasis
added.) Although the Commission is often described as a quasi-judicial agency, the Commission
is not a judicial court. Thus, persons injured by public utilities have recourse through the courts.
We next turn to the "timeliness" claim. Mr. Stutzman relies on Telephone Rule
401.02 and asserts that Qwest has been unresponsive. In particular, he stated that after the
District submitted its claim to Qwest "we were met with weeks of silence." Complaint at I.
also said his telephone calls to Ms. Duran were not returned. Id. at 2. Mr. Stutzman s reliance
on Rule 401.02 is misplaced. Rule 401.01 provides that the Commission "has authority to
investigate and resolve complaints made by subscribers to telecommunication services that
Idaho Code ~ 62-604(2) provides that any telephone corporation may elect to exclude all of its telecommunications
services ftom regulation under Title 61 and such services shall be subject to the Commission s Title 62 authority.
Qwest removed its basic local exchange service ftom Title 61 regulation in July 2005. Notice of Election, Case No.
QWE-05-12/-13 (July 14 2005).
ORDER NO. 31099
concern quality and availability of local exchange service, or whether price and conditions of
service are in conformance with filed tariffs or price lists, deposit requirements for such services
or disconnection of such service." IDAPA 31.41.01.401.01. Subsection 01 further provides that
the Commission "may consider complaints regarding any telephone services over which the
Commission has authority Id. (emphasis added). Subsection 02 pertains to informal
complaints subject to the Commission s jurisdiction. As stated above, the Commission has no
authority over liability claims.
Based upon our review of the correspondence provided by the District, we cannot
find that Qwest has been wholly unresponsive. Qwest answered the District's December 7 claim
in nine days. Qwest answered Mr. Stutzman s February 5 , 2010, faxed letter on February 18
20 I O. Ms. Duran has not always been available by telephone but did return at least one of Mr.
Stutzman s calls. We agree that Qwest did not respond to every letter or phone call, but what is
clear is that Qwest denied the District's liability claim.
In summary, the Commission does not have authority to award damages caused by
the actions of a public utility. The award of damages rests with the courts of this State - not the
Commission. While Qwest may have been more responsive to the calls and letters, we cannot
find that the Company was entirely non-responsive.
ORDER
IT IS HEREBY ORDERED that the formal complaint filed by Grace Joint School
District No. 148 against Qwest be dismissed for reasons set out in greater detail above.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) or in interlocutory Orders previously issued in this case may petition for
reconsideration within twenty-one (21) days of the service date of this Order with regard to any
matter decided in this Order or in interlocutory Orders previously issued in this case. Within
seven (7) days after any person has petitioned for reconsideration, any other person may cross-
petition for reconsideration. See Idaho Code 9 61-626.
ORDER NO. 31099
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this :5
f-J..
day of June 2010.
~U:
J~-
MARSHA H. SMITH, COMMISSIONER
MACK A. REDFORD, COMMISSIONER
ATTEST:
E~:J~n
Commission Secretary
bls/O:QWE-10-
ORDER NO. 31099