20100625Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KEMPTON
CO MMISSI 0 NER SMITH
CO MMISSI 0 NER RED FO RD
COMMISSION SECRETARY
COMMISSION STAFF
FROM:DON HOWELL
DEPUTY ATTORNEY GENERAL
DATE:JUNE 22, 2010
SUBJECT:GRACE SCHOOL DISTRICT'S REQUEST TO AMEND COMMISSION
ORDER NO. 31099, CASE NO. QWE-I0-
On June 17, 2010, the Commission Staff received a request from Brian Stutzman on
behalf of the Grace School District. In his e-mail to Nancy Hilton, Mr. Stutzman asked if final
Order No. 31099 could be amended. More specifically, his e-mail states in part:
I would ask that part of (Order No. 31099) be corrected to include that I
called Qwest's Joni Duran at least three times each month of December
January and February, for a total of nine times, and received zero response
except for 2 form letters. It was only after I drove to Denver to try to meet
with her that she left 2 after hour voice mails for me. To this date, she has
never returned a call during business hours.
Your (Order) made it look like there had been regular and constant responses
from Qwest. It has been nothing of the sort.
Can you amend (the Order) to reflect this?
BACKGROUND
A. The Complaint
On May 6 , 2010, the Commission received a "formal complaint" from Brian
Stutzman on behalf of the Grace Joint School District No. 148 against Qwest Corporation. In its
complaint, the District raised two issues. First, the District claimed that its telephone equipment
at a school was damaged by a power surge on the telephone line during the process of "porting
(i., changing) service from one telephone company to Qwest. The District maintained Qwest
caused the surge and requested Qwest pay $1 500 in damages to partially cover Mr. Stutzman
costs in replacing the damaged telephone equipment.
DECISION MEMORANDUM
Second, Mr. Stutzman asserted that Qwest has not been responsive to his claims for
damage reimbursement. In particular, he stated that after the School District submitted its claim
to Qwest
, "
we were met with weeks of silence." Order No. 31099 at 4 quoting Complaint at
Mr. Stutzman cited Telephone Customer Relations Rule 401.02 which provides that a
complainant may have a face-to-face meeting to resolve complaints.
B. The Commission s Final Order
In Order No. 31099 issued June 3 , 2010, the Commission dismissed the complaint
finding that it does not have the statutory authority to award damages under the
Telecommunications Act. Idaho Code 99 62-601 et seq. In response to the lack of adequate
response from Qwest, the Commission found that Telephone Rule 401 pertains to the
Commission s "authority to investigate and resolve complaints made by subscribers to
telecommunications services that concern quality and availability of local exchange service, or
whether the price and conditions of service are in conformance with filed tariffs or price lists
deposit requirements for such services or disconnection of such services.Id. quoting IDAP A
31.41.01.401.01. Thus, the Commission found that Mr. Stutzman s reliance on Rule 401.02 is
misplaced because the underlying complaint was for damages - an area beyond the
Commission s authority. Order No. 31099 at 4.
The Order (pages 1-2) sets out the sequence of events as portrayed in the complaint.
Order No. 31099 is attached for your review. The Commission s Order further stated:
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
February 5 , 2010, faxed letter on February 18 , 2010. 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 No. 31099 at 5 (emphasis added).
I The complaint does state that Mr. Stutzman "called numerous times (to Qwest) requesting a conference call or
return calls and was met with silence." Complaint at
DECISION MEMORANDUM
THE PROCEDURAL RULES
The Commission s Rules of Procedure contain two rules which address the
clarification or amendment of final Orders. Rule 325 provides that any person may petition to
clarify any Order. IDAP A 31.01.01.325. This rule further states that a "petition for clarification
may be combined with a petition for reconsideration or stated in the alternative as a petition for
clarification and/or reconsideration. The Commission may clarify any order on its own motion.
Id.
Commission Rule 326 addresses the amendment of final Orders.Rule 326.
provides that any person may petition "to rescind, alter or amend a final order pursuant to
Section 61-625 , Idaho Code." This rule further provides that a petition to amend must state that
there have been changed circumstances or new information that has become available since the
order was issued, or that there are other good and sufficient reasons for rescinding, altering or
amending the order. The Commission may dismiss as defective any such petition not complying
with this rule and with Rule 53 ((prescribing the form and content of petitions))." IDAPA
31.01.01.326.01.
Staff has provided a copy ofMr. Stutzman s e-mail to Qwest. The Company believes
that Order No. 31099 "correctly resolved the issues related to this dispute." Qwest urged the
Commission to uphold its Order.
COMMISSION DECISION
1. Does the Commission find that Mr. Stutzman s e-mail requesting amendment of
Order No. 31099 should be treated as a Petition to Clarify or Amend Order No. 310997
2. If so, does the Commission find that his e-mail satisfies the requirements of Rule
53.057
3. Does the Commission wish to clarify or amend its final Order No. 310997
Don Howell
Deputy Attorney General
bls!M:QWE-IO-
DECISION MEMORANDUM
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 "formal" 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.e., 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 former telecommunications provider, to Qwest. BPS was retained by the District
investigate and repair or replace the damaged equipment. BPS determined the damaged
equipment could not be repaired cost-effectively and subsequently replaced the equipment. Mr.
Stutzman alleged that a BPS technician determined 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 information 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 informal 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 informal complaint process, Staff could not determine 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 "formal" 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 A TT ACH TO THE COMP ANY FOR
DAMAGES ARISING FROM ERRORS, MISTAKES , OMISSIONS,
INTERRUPTIONS, OR DELA YS 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,
IDAPA 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 ofIdaho
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 1. He
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 from regulation under Title 61 and such services shall be subject to the Commission s Title 62 authority.
Qwest removed its basic local exchange service from 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
2010. 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 ~ 61-626.
ORDER NO. 31099
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this rJ..
day of June 2010.
JI KEMPT , P SIDENT
MARSHA H. SMITH, COMMISSIONER
~-'
MACK A. REDFORD, COMMISSIONER
ATTEST:
~.rl
D. Jew I
Commission Secretary
bls/O:QWE-10-
ORDER NO. 31099