20041015Qwest Calculations Pursuant to Order No 29603.pdf

WILLIAM J. BATT, ISB No. 2938
James B. Alderman, ISB No. 6422
BA TT & FISHER, LLP
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Post Office Box 1308
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
[phone]
Attorneys for Respondent/ Respondent on Appeal
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UT ILlrjL~::; CDtjlf"jISSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT PETITION
OF ROBERT RYDER, DBA RADIOPAGING
SERVICE, JOSEPH MC NEAL, DBA
AGEDA TE AND INTERP AGE OF IDAHO
FOR A DECLARATORY ORDER AND
RECOVERY OF OVERCHARGES FROM U.
WEST COMMUNICATIONS , INC.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ROBERT RYDER dba RADIO PAGING
SERVICE, JOSEPH B. MC NEAL DBA
AGEDA TE AND INTERP AGE OF IDAHO
AND TEL-CAR, INC.
Petitioners- Appellants
IDAHO PUBLIC UTILITIES COMMISSION
Respondent on Appeal
and
QWEST CORPORATION
Respondent-Respondent on Appeal.
SUPREME COURT
DOCKET NO. 29175
IPUC DOCKET NO. T -99-
QWEST CORPORATION'
CALCULATIONS PURSUANT TO
ORDER NO. 29603
OR1G1NAL
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P.
INTRODUCTION
On October 5, 2004, the Commission issued Order No. 29603 essentially denying
Qwest Corporation Petition for Reconsideration Alteration or Amendment of the
Commission s Order No. 29555. In addition, the Commission discussed the credits previously
ordered to provide to the Pagers in this case, and apparently concluded that the amount of
refunds ordered exceeded the amounts the Pagers "owed." The Commission ordered Qwest to
provide new calculations and data relating to whether the refunds ordered by the Commission
exceeded amounts owed by the Pagers to Qwest, stating:
(WJe direct Qwest to provide up-to-date calculations to confirm that the refunds
apportioned to each Pager: (1) as of November 2002; and (2) for the additional
refunds for wide area calling and transit traffic (with the "800" adjustment),
exceed the amounts the Pagers owed Qwest.
Below, Qwest first discusses the Commission s previous orders to explain the difficulty
presented by the calculations ordered in Order No. 29063. These difficulties primarily relate to
(1) the time at which it is determined how much the Pagers "owe" or "owed" to Qwest, and (2)
what services and charges are included in the calculation.
In any event, Qwest review of the data and calculations shows that that refunds
previously ordered by the Commission do not exceed amounts "owed" by the Pagers, however
defined, and Qwest provides those calculations.
The Commission s Rulings on Credits vs. Cash Refunds
Qwest is unsure whether, at this late state in this long litigation, the Commission is now
departing from its many previous rulings on the credit vs. cash refund issue. Up until Order No.
29603 , Qwest believes the Commission s rulings had been clear that the Pagers were entitled to
Order No. 29603, p. 19.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 2
billing credits and not cash refunds. The Commission had accepted Qwest's arguments that
because the Pagers had ceased paying their bills, it would be unfair to order refunds. Now, the
Commission seems to be saying that if the Pagers currently-ordered refunds exceed they "owe
or "owed" at some unspecified point in time, they are now entitled to refunds.
A review of the Commission s prior Orders shows that the law of this case developed
from the Commission s view that because the Pagers were not paying their bills to Qwest, it
would not be fair to order refunds:
Order No. 28626
In Order No. 28626, the Commission rejected the Pagers ' request that ordering language
providing for "a billing credit" be struck. The Commission stated:
If this language were removed, the Petitioners would presumably be entitled
reimbursements" but not billing credits. In response, Qwest alleges that
Petitioners did not seek cash reimbursements in their Petition for a Declaratory
Ruling (hereinafter "Complaint"), but did request recovery of amounts charged in
the past. Furthermore, Qwest argues that PageData is not entitled to cash
reimbursements because it will still owe Qwest a substantial amount of money
after any credits are given to it. .
..
The Commission finds that Petitioners have
not provided any justification for striking the language "a billing credit or" as they
have requested. For this reason, they have failed to comply with Commission
Rules 326 and 331. IDAP A 31.01.01.326 and .331. Accordingly, this request is
denied.
EvidentiarvHearine and Proposed Order
In the trial of the case in mid-2001 , long after the "recover period" established by the
Commission in this case, the Hearing Officer routinely admitted evidence that the Pagers had
stopped paying their bills. For example, Arden Caspar, TelCar s owner, testified:
. . .. Well, as a matter of fact, I
think the reason that we stopped paying the bills is
that we had made several efforts to get this thing
all resolved, and these were efforts that seemed
2 Order No. 28626, February 5 , 2001.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 3
very fair in accordance with our side of the
picture, and we presented these over time and again
and never got response from the Qwest people, so
consequently, we then stopped paying the bills if
for no other reason, to get attention.Q. Okay. And do you believe it's proper
that you not pay your bills because Qwest
overcharged you illegally?A. Yes. In other words, it's the same
company. In my opinion, Qwest owes us money. Why
should we pay Qwest then?Q. SO you re looking at it as a setoff?A. Yes.
Q. And you re not contending that you
have a right not to pay the bill --
A. Oh, no.Q. -- and to collect the amount
100 percent from Qwest?A. Right. 3
Mr. Ryder testified as follows on cross-examination:
Q. Have you stopped paying all your bills
from Qwest?A. Yes. Uh-huh. I can t -- I don t have
the exact date that we -- we stopped paying, but we
have stopped paying all of the -- all of the bills
that we had received and had paid promptly. And so
yes, we have stopped.
Q. What's the justification for that?A. Primarily, as a means of saying that
Hey, these charges are in dispute because Qwest owes
us considerably more money than these bills
represent.
Q. Well, which bills are you not paying?
A. We re not paying the specific bills
involving the transport of number -- I mean, of
these numbers. That's where I gather we d call them
the -- the transport charges. And we get two
these bills: One involving Oregon transport, and
then also Boise or Idaho transport.
10 And then we had a -- we have a
3 Transcript, p. 128.
4 Transcript, p. 120.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 4
commercial business line, which we are -- have not
been paying on, along with several other business
lines that we have not been paying on.
Q. Are those ordinary telephone lines?
A. They re business lines, yes.Q. And the transport charges that you
talking about, those are covered by your
Interconnection Agreement, are they not?A. Yes. However, we have difficulty in
determining exactly what those charges are, in that
they are varied from time to time.
Q. Well, would you agree that you do owe
Qwest some amounts for facilities provided under the
Interconnection Agreement?
MR. JONES: Objection, I don t know
that we ve talked about the appropriate time frame.
Are we talking about under the Interconnection
Agreement? What time?
MR. BATT: Well, this really is in
response to Jim s question about why the mention of
the Interconnection Agreement amount due is proper
on the matrix.
HEARING OFFICER: Yeah, I think that'
fair response to that issue that was raised during
direct.
THE WITNESS: So repeat the question
please.
Q. BY MR. BATT: Yeah, sure. Would you
agree that today, you owe Qwest charges under your
Interconnection Agreement that you haven t paid?A. I -- I would say, yes, we owe you
charges as you had billed them. Now, the amount
that you had billed seems to be in question
however. 6
Q. Okay. Did I understand your testimony
that you believe the Commission has ordered that you
are entitled to a refund as opposed to a credit, or
did I misunderstand that?
A. Well, I -- I would be satisfied with
either, I suppose, credit or a refund.
5 Transcript, p. 121.
6 Transcript. p. 122.
7 Transcript, p. 126.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 5
In his Proposed Order, the Hearing Officer discussed and ordered only billing credits.
The Hearing Officer required Qwest to provide new calculations of billing credits, which Qwest
filed on January 15 2002.
Order No. 29064:
The Commission issued its Order No. 29064 on July 17 2002, adopting for the most part
the recommendations of the Hearing Officer, including the ordering of billing credits rather than
cash refunds. The Commission deemed this part of the case the "Credit Phase." The Pagers
sought to raise their claim to a cash refund, rather than a billing credit, again, this time claiming
that the McLeod "unfilled agreement" had provided for cash refunds of certain charges. The
Commission rejected the Pagers' attempt to raise the issue on several grounds , and stated in part:
(TJhe Commission has already rejected the Pagers request to require Qwest to
provide them with cash reimbursements rather than billing credits. In Order No.
28626, the Commission declined the Pagers' request to amend its final prior
Order to require Qwest to provide the Pagers with cash reimbursements rather
than billing credits. Order No. 28626 at 2. Having previously declined to require
cash reimbursements in Order No. 28626, the Pagers could have sought judicial
review of that issue from the Idaho Supreme Court. The Pagers did not appeal
that decision and the Commission declines to revisit the issue now.
Qwest calculated the billing credits ordered the Commission, which were filed with and
approved by the Commission. In accordance with the Commission s Orders, the Commission
applied those credits to the Pagers' accounts.
8 Qwest's Recalculation of Billing Credits , filed January 15 2002.
9 Order No. 29064, p. 10.
10 Qwest's Recalculation of Billing Credits, filed July 30 2002; Qwest's Application of Billing Credits
filed August 14 2004. Qwest acknowledges and agrees that because TelCar was already in bankruptcy at
that point in time, payment rather than credit to the trustee is appropriate, subject to Qwest's rights of
setoff under bankruptcy law.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 6
Order No. 29140
The Pagers petitioned for reconsideration, and the Commission granted their motion in
part in Order No. 29140. The Commission, however, steadfastly refused to depart from its
previous rulings on the propriety of billing credits. It is this Order that the Commission now
seems to be saying required Qwest to issue refunds rather than credits. When read in whole
however, the Order simply does not so provide. For example:
2. Credits vs. Reimbursements The Pagers also take issue with the "form" of the
refund due each Pager. In the Commission s Liability Order, we found the Pagers
were entitled "to reimbursement or billing credits.Order No. 28601 at 11. In
the Commission s Credit Order No. 29064 we directed Qwest to "issue the
respective (billingJ credits to the Pagers no later than 28 days from the service
date of this Order." Order No. 29064 at 31. The Pagers do not claim that Qwest
has failed to issue the billing credits but take issue with the actual form of the
refunds. More specifically, the Pagers assert Qwest should have issued them
reimbursements rather than simply issue credits to their accounts. The Pagers
also claim they requested reimbursement in their initial Petition for Declaratory
Order. "They never asked for a billing credit." Petition for Reconsid. at 2. In the
alternative, the Pagers argue they should have the option of deciding how the
credits should be applied to their Qwest accounts. Id.
Commission Findines. We decline the Pagers requests and find that it was
appropriate to direct Qwest to issue billing credits in this case for four reasons.
First, the Pagers ' Petition for Declaratory Order simply stated that they "are entitled
to recovery" of amounts paid or overcharged. Petition for Declaratory Order at
In other words, the Pagers' initial pleading simply sought recovery - they did not
specify the form or manner of refund.
Second, this is the second time the Pagers have pursued this issue. In their Petition to
Amend the Liability Order No. 28601 , the Pagers asked the Commission to remove the language
a billing credit or" so that the form of the refund would be a reimbursement. The Commission
denied this request finding that the Pagers provided no justification for this change. Order
No. 28626 at 2. That Order was a final decision appealable to the Supreme Court. Id. at 10. The
11 We noted in Order No. 29064 at nn. 8, 17 that "billing credits may not be appropriate" for Tel-Car
because the company is no longer in business.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 7
Pagers did not appeal. At that time, the Pagers remedy was to seek judicial review. The
Commission will not permit the Pagers to now collaterally attack the prior Order in violation of
Idaho Code ~ 61-625 (final and conclusive decisions shall not be attacked collaterally).
Third, as set out above, at least two pagers acknowledged they stopped paying their
paging bills from Qwest. This fact coupled with the fact they sought much larger refunds
than the Commission eventually ordered, leads us to infer that the credits may not exceed
t e arrearages.If this is the case it would be unreasonable to require cash
reimbursements. See Metrocall Order I at ~~ 4, 12 (Oct. 2, 2001). Finally, Idaho Code
~ 61-641 (concerning overcharges by a utility) empowers the Commission to order Qwest
to "make due reparation to the complainant therefore, with interest from the date of
collection provided, no discrimination will result from such reparation." (Emphasis added).
The statute does not prescribe the form of the refund. In this instance, we find providing
cash reimbursements would be discriminatory.
II.
Calculation of Amounts Due vs. Amounts Owed
We do not believe that the Commission s intent, in its original orders in this case, was
to determine what amounts were owed by the Pagers to Qwest at some time past on certain
accounts, and compare that to the credit amounts, and thereby determine if the Pagers were
entitled to cash payments or billing credits. Because the Pagers stopped paying their bills, it was
clear to Qwest - and we believe to the Commission - that the Pagers would ultimately owe
Qwest much larger amounts than the Commission-ordered credits.
12 In Qwest's Motion to Dismiss and Answer to the Petition to Amend , the Company states that
PageData still owes Qwest a substantial sum after credits are applied." Answer at 5.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 8
Thus, Qwest understood the Commission to intend in Order No. 29555 , that Qwest
would perform that type of calculation. In fact, the Commission stated
, "
(b Jecause the refunds
have been substantially increased from those credits originally calculated by Qwest in July 2002
it is possible that the refund credits might exceed the amounts the Pagers owe Qwest, if any. If
the refunds afforded to PageData and Radio Paging exceed the amounts they owe Qwest, then
Qwest shall provide them with cash reimbursement within 21 days of the service date of this
Order. ,,13
Indeed, that is the case today. PageData owes Qwest in excess of $200 000, and Radio
Paging s balance is approximately $20 000. Accordingly, Qwest did not understand the
Commission to have made reference past point in time in determining what the Pagers "owe
Qwest.
However, even a 1999 date, and looking solely at wholesale interconnection services
Qwest believes that amounts owed by the Pagers exceeded the credits that would later be
granted. The following table was prepared by Sheryl Fraser, Qwest's expert:
Pager Exhibit Page Service Date Balance
PageData Qwest 203 Type Billed $120 246
Paging Payments/Adjustments
$87 390
Balance $32 856
69 & Private 750.
Line CRIS
POTS 632.
170.
DID CRIS 144.
502.49
DID CRIS ($8 223.52)
Note: This credit balance was moved to lABS as
part of the conversion process.
9""463.
Private 212.
13 Order No. 29555 at p. 21.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 9
Line lABS
911.46
Radio Qwest 201 Type Billed $53 335
Paging Payments/Adjustments
$50 034
Balance $3 301
Thus, Qwest does not believe that refunds are appropriate. Moreover, how would such
refunds be calculated; that is, at what point in time would debits and credits be compared? What
services would be counted in determining whether there is a positive or negative balance? What
about the billing credits previously ordered by the Commission and already applied - should they
now be reversed?
CONCLUSION
Qwest respectfully requests the Commission to look at this issue once more. If the
Commission still believes, after considering Qwest's comments , that refunds should be provided
to the Pagers, then Qwest requests further guidance on the questions stated above. Qwest would
welcome an informal meeting of the parties and staff to discuss how these would be calculated.
In the meantime, though, it might be helpful to convene the parties, with Sheryl Fraser attending,
to try to work through the calculations.
14 Qwest applied the billing credits for Radio Paging and PageData more than one month ago.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 10
DATED this 15th day of October, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
William J. Batt
James B. Alderman
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of October, 2004, I caused a true and correct
copy of the above and foregoing document to be served, in the manner indicated, on the
following:
Jim Jones
JIM JONES & ASSOCIATES
1275 Shoreline Lane
Boise, Idaho 83702-6870
Telephone: [phone]
Fax: [phone]
Hand Delivery
~ U.S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
Hand Delivery
Du.s. Mail
Facsimile
Federal Express
By:
William J. Batt
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 12