20051206final_order_no_29923 on remand.pdf

Office of the Secretary
Service Date
December 6, 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT PETITION
OF ROBERT RYDER DBA RADIO PAGING
SERVICE AND JOSEPH McNEAL DBA
PAGEDATA FORA DECLARATORY
ORDER TO RECOVER OVERCHARGES
FROM QWEST CORPORATION
CASE NO. USW-99-
(ON REMAND)
ORDER NO. 29923
On September 28 , 2005, the Idaho Supreme Court issued its Remittitur in Robert
Ryder dba Radio Paging Service, et ai. v. Idaho PUC, et ai.141 Idaho 918 , 120 P.3d 736
(2005). In its Opinion, the Supreme Court affirmed the Commission s decisions2 regarding the
amounts that Qwest Corporation overcharged Radio Paging Service and PageData (collectively
referred to as "the Pagers ). However, the Court held that the Commission had used the wrong
rate in calculating the interest on the refunds owed the Pagers. More specifically, the Court held
that the Commission should have used the 12% interest rate as set out in Idaho Code ~ 28-22-
104(1) instead of the interest rate for customer deposits set out in Customer Relations Rule 106
IDAPA 31.41.01.106.01. The Court remanded the case to the Commission for recalculation of
the interest. Ryder 141 Idaho at 929, 120 P.3d at 747.
On October 3 , 2005, the Pagers filed a "Motion"J for the Commission to alter its
Order Nos. 28626 and 29603 to reflect the 12% interest rate pursuant to Idaho Code ~~ 61-629
and 61-624. The Pagers also requested that the Commission order Qwest to pay cash refunds
within 14 days from the date the Commission issues its Order. Petition at 1-2. The Pagers
maintained that once the Commission simply recalculates the refunds "at 12% interest, then this
matter is concluded." Brief at 2. The Pagers assert there is no need for a rehearing or a comment
period. Id. at 5. Qwest has not filed an answer to the Pagers' Petition.
1 The caption of this case has been modified to reflect the current parties.
2 The Pagers appealed from Order Nos. 29064 and 29140. Qwest cross-appealed from Order Nos. 29555 and 29603.
3 Requests that the Commission modify prior Orders after they have "been set aside or set aside in part on appeal"
should be initiated by filing a petition pursuant to the Commission s procedural Rule 326, IDAPA
3l.0l.0l.326.0l.
ORDER NO. 29923
BACKGROUND
A. The Underlying PUC Case
The procedural history of this complex and lengthy case is set out in detail in Order
Nos. 29064 and 29140 but the pertinent parts are summarized here. This case was initiated when
the Pagers complained that U S WEST Communications (the predecessor to Qwest Corporation)
had improperly charged the Pagers for facilities and services used to transport telephone calls to
the Pagers ' customers. In the first part of this three-part case, the Commission found that Qwest
had inappropriately billed the Pagers for services and facilities. Order No. 28601.
1. The Credit Phase. Having determined that the Pagers were improperly charged
the Commission instituted the second part of this case (the "Credit Phase ) to determine the
amount of reimbursements or billing credits due the Pagers. When the parties were unable to
reach settlement on the refund amounts, the Commission appointed a Hearing Examiner to
conduct an evidentiary hearing and issue a Proposed Order. Order No. 29140 at 3-4. After
conducting its own de novo review, the Commission issued a lengthy Order affirming and
expanding on the Examiner s proposed findings of fact. Order No. 29064. The Commission
denied the Pagers ' Petition for Reconsideration in Order No. 29140 and the Pagers filed their
appeal to the Idaho Supreme Court in December 2002. The Supreme Court then stayed the
appeal so the parties could participate in the Court's appellate settlement process. Following
unsuccessful negotiations, the Court reinstated the appeal in November 2003 with the Pagers
initial brief due in February 2004.
2. Suspending the Appeal.On February 13 , 2004, the Pagers, Qwest and the
Commission requested that the Court suspend the appeal so that the appellate parties could
consider a recent decision of the D.C. Circuit Mountain Communications v. FCC 355 F.3d 644
(D.C. Cir. 2004). After unfruitful settlement discussions , the Commission ordered Qwest and the
Pagers to file briefs on the issues presented in the Mountain decision. Relying on Mountain the
Commission subsequently found that the Pagers were entitled to additional refunds for wide area
calling services and third-party transit traffic. Order No. 29555. Because the Pager refunds were
substantially increased from those amounts initially calculated in 2002, the Commission stated
that "it is possible that the refund credits might exceed the amounts the Pagers owe Qwest, if
any. If the refunds afforded (the Pagers) exceed the amounts they owe Qwest, then Qwest shall
ORDER NO. 29923
provide them with cash reimbursements. . .." Order No. 29555 at 21. Qwest filed a Petition for
Reconsideration and a Notice of Cross Appeal regarding Order No. 29555.
The Commission granted Qwest reconsideration and adjusted the reimbursement
amounts owed to the Pagers. The Commission ordered Qwest to file new calculations showing
whether the authorized refunds now exceed the amounts the Pagers owed Qwest. "If the refunds
exceed the amounts the Pagers owe Qwest, then Qwest shall issue cash reimbursements for the
remaining balance ofthe refunds. . . ." Order No. 29603 at 20. The Commission ordered Qwest
to submit new calculations regarding the refunds owed to the Pagers and any arrearage the
Pagers may owe Qwest no later than October 19 2004.
Rather than submit detailed calculations, Qwest asserted that both PageData and
Radio Paging owed Qwest in excess of $200 000 and $20 000 , respectively. In Order No. 29666
issued December 21 , 2004, the Commission found Qwest's calculations to be "non-responsive
because they did not provide detailed calculations regarding any arrearages that the Pagers may
owe Qwest. Order No. 29666 at 3; Ryder 141 Idaho at 923, 120 P.3d at 741. The Commission
directed the parties to meet once again to exchange information and attempt to settle their
differences. Qwest was ordered to provide detailed calculations pertaining to what services are
subject to any claimed arrearages. Order No. 29666 at 4. Settlement negotiations were
unsuccessful and oral argument in the appeal was held in March 2005.
B. The Court's Opinion
On September 6, 2005, the Idaho Supreme Court issued its Opinion holding that the
Commission properly determined the amount of overcharges owed to the Pagers. The Court also
determined that the Commission was neither arbitrary nor capricious in ordering cash refunds in
excess of any arrearages the Pagers owed Qwest. Ryder 141 Idaho at 927-, 120 P.3d at 745-
48. The Court agreed with the Commission that if the refunds were less than the amounts the
Pagers owed Qwest
, "
it made little sense to issue cash reimbursements instead of billing credits.
Id. The Court recognized that "although the Commission did not possess the evidence necessary
to make this determination (of whether the arrearages exceeded the refunds), Qwest did, and this
is the reason the Commission ordered Qwest to provide data to the Commission(.)" Id. at 928-
, 120 P.3d at 746-47. The Court concluded that "(d)epending on the arrearages the Pagers
may in fact get all their reimbursements back in cash.Id. at 928, 120 P.3d at 746. The Court
affirmed the decisions of the Commission except for the interest rate.
ORDER NO. 29923
THE INTEREST CALCULATIONS
On November 1 , 2005, the Pagers filed two documents. First, the Pagers' counsel
submitted an affidavit and two sets of interest calculations. Mr. Purdy stated in his affidavit that
the interest calculations were true and correct copies of information he received from Qwest's
counsel purporting to be the refund interest calculations at 12% up to September 2005. For
Radio Paging, the calculations show overcharges of $44 945 and recalculated interest of $41 ,482
or a total of $86 427. Exh. A. For PageData, Exhibit B shows overcharges of $76 168 and
recalculated interest of $63 942, or a total of$140 110.
Second, the Pagers also filed a "Response" to the Qwest interest calculations alleging
that Qwest made two "typographical errors" in the computations of interest for the two Pagers.
First, when calculating the interest due for transit traffic charges, PageData insisted that Qwest
erroneously calculated the interest based on a 90-month recovery period instead of 104 months.
This results in a "shortfall of $3 712 in interest." Pagers Response at 4 (Exh. A). Second, the
Pagers asserted that the Commission should include the months of October and November 2005
in the interest calculations. Id. Adding another two months of interest to Radio Paging s refund
would increase the interest by $899, resulting in a total refund of $87 326. Adding the 14
months for transit traffic and the two months of October and November would increase
PageData s interest by $5 271. Thus, PageData argued that its interest should be $69 213
resulting in a total refund of $145 386. The table below sets out the interest calculations
attributed to Qwest and the corrections asserted by the Pagers.
PageData Radio Paging
Refund Category Qwest Pager Qwest Pager
Local Facilities $45 062 $45 067*$33 655
Transit Traffic 767 767 290
Wide Area Calling 339 339 N/A
Total Overcharge $76 168 $76 173 $44 945
Interest at 12%$63 942 $69 213 $41 482 $42 381
Total as of 11/05 $140 110 $145 386 $86,427 $87 326
*The supporting workpapers show a local facilities credit of $45 067 but the
Credit Summary" reflects a credit of $45 062. Order No. 29603 (affirmed
on appeal) found that the local facilities credit was $45 062.
ORDER NO. 29923
With the adjustments noted above, the Pagers assert "the matter is fully submitted
and that there is no reason for this Commission to not rule upon the Petition immediately, subject
to . . . Qwest's right to review the correction of the computational errors and respond within no
more than seven (7) business days.Pagers Response at 2. Again, Qwest did not file any
response to Counsel's affidavit or to the alleged typographical errors.
DISCUSSION AND FINDINGS
A. Calculating the Interest
On remand from the Court, the Commission s task is to recalculate the interest on the
Pagers' refund using a 12% rate. The Pagers assert that the calculations submitted with Mr.
Purdy s affidavit (with adjustments discussed below) accurately reflect the calculation of the
12% interest rate. After examining these calculations, we find these calculations do reflect the
Commission-determined overcharges attributable to local facilities, transit traffic, and wide area
calling ($44 945 for Radio Paging and $76 168 for PageData). Based upon our review of these
calculations and the lack of any objection from Qwest, we find these calculations (with the
adjustments noted below) accurately reflect the calculation of interest at 12%.
Turning now to the "corrections" proposed by the Pagers in their November 1 filing,
we find that the adjustments to the interest calculations are appropriate. In particular, we find it
reasonable to add two months of interest for October and November 2005. Given the lack of any
objection, we further find that PageData should receive an additional 14 months of interest for
transit traffic. Consequently, we find that Radio Paging is due a refund of$87 326 and PageData
is due a refund of$145 381.
B. Ordering Refunds
The Commission s procedural Rule 57 requires that answers to petitions "must be
filed with the Commission and served on all parties of record within twenty-one (21) days after
service of the complaint or petition(.
)"
IDAP A 31.01.01.057.02. As noted above, Qwest has not
filed an Answer to the Pagers' Petition or responded to the two pleadings filed November 1
2005. Rule 57.02(b) sets out the consequences for a party failing to answer a petition.
A party that fails to answer a complaint or petition within the prescribed time
will be treated as generally denying the allegations of the complaint or
petition and will be precluded, except for good cause shown, from setting up
any affirmative defense in the proceeding. In these cases, the Commission.
may proceed with the matter solely upon the issues set forth in the complaint
or petition. The complainant or petitioner must offer evidence of its
ORDER NO. 29923
allegations regardless of whether the complaint or petition is answered or
denied.
Rule 57.02(b), IDAPA 31.01.01.057.02(b) (emphasis added).
Despite Qwest's affirmative claim that the Pagers owe Qwest for arrearages, Qwest
has not presented detailed evidence of such set off. Qwest has been directed several times to
submit calculations showing the amount of refunds minus arrearages. Order Nos. 29555 at 21;
29603 at 19; 29666 at 4. On remand, Qwest has not filed an answer to the Pagers' Petition
seeking cash reimbursements or responded to the Pagers' November 1 filing addressing the
refund calculations. Consequently, we are unable to address the issue of arrearages, if any,
because such information is not in the record. Accordingly, we find that Qwest has not met its
burden of proof regarding any arrearages. Pace v. Hymas 111 Idaho 581 , 585 , 726 P.2d 693
697 (1986).
In summary, the Commission finds that Radio Paging is due interest of $42 381 for a
total refund of $87 326. The Commission further finds that PageData is due interest in the
amount of $69 213 for a total refund of $145 381. Qwest shall issue cash reimbursements in the
amounts specified above.
ORDER
IT IS THEREFORE ORDERED that the Pagers ' Petition for recalculation of the
interest due pursuant to the Supreme Court's Opinion is granted.
IT IS FURTHER ORDERED that Qwest issuea check in the amount of $87 326 to
Radio Paging Service.
IT IS FURTHER ORDERED that Qwest issue a check in the amount of$145 381 to
PageData.
IT IS FURTHER ORDERED that Qwest issue the checks to Radio Paging Service
and PageData within 14 days from the service date of this Order.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order on Remand) 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 on Remand.
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. 29923
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this IP
'fJ..
day of December 2005.
(\)r~ d ~ J-
MARSHA H. SMITH, COMMISSIONER
ATTEST:
Je D. Jewell
Co mISSIon Secretary
big/a: USW - T-99-24 - dh Jemand
ORDER NO. 29923