HomeMy WebLinkAbout20051003Brief supporting motion for alteration on remand.pdf" ,
" " I
: L"
;:.
I V r~"c,-
"",
r'"
, ;-
; i L~o.CBEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Respondent/Respondent on Appeal. )
IN THE MATTER OF THE JOINT
PETITION OF ROBERTY RYDER, d/b/a
RADIO PAGING SERVICE, JOSEPH B.
MCNEAL, d/b/a P AGEDA T A AND
INTERP AGE OF IDAHO, AND
TEL-CAR, INC., FOR A DECLARATORY
ORDER AND RECOVERY OF
OVERCHARGES FROM U.S. WEST
COMMUNICATIONS, INC.
ROBERT RYDER, d/b/a RADIO
PAGING SERVICE, et aI.
Petitioners/ Appellants
vs.
IDAHO PUBLIC UTILITIES COMMISSION
Respondent on Appeal
and
QWEST CORPORATION
I. INTRODUCTION
2nO5 OCT - 3 Pr'l 3= 33
JUr..,iU f'UULIC
!"'
' I ' Irc' iJ,l-,ilLI iC.UMt1 JJ
Case No. USW-99-
BRIEF IN SUPPORT OF
MOTION FOR AL TERA-
TION OF COMMISSION
ORDER NOS. 28626 AND
29603
Supreme Court Docket No.
29175
On September 6, 2005, the Idaho Supreme Court issued 2005 Opinion No. 99 in
the above-captioned matter. Remittitur was issued on September 28, 2005. No party to
the appeal petitioned for rehearing pursuant to Rule 42, Idaho Appellate Rules.
Consequently, pursuant to Rule 38(b), I.A., the Supreme Court's Opinion became final
on September 27 2005, twenty-one (21) days after announcement of the Opinion.
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.
As the Commission is acutely aware, this has been an arduous and complex
proceeding. The matter has fmally come to a resolution. The Supreme Court has ruled
on all issues on appeal and affirmed the Commission in every respect with the exception
of the interest rate. Though there were numerous orders issued by the Commission in this
case, some that were altered through reconsideration, others because of changes in
telecommunications law and still others because of new evidence, the Pagers submit that
it is necessary to alter only two orders to satisfy the Supreme Court's ruling.
Order No. 28626 was cited by the Court as the order in which the Commission
adopted a 6%, rather than 12%, interest rate. See, Opinion at p. 18. Order No. 29603 is
the order in which the Commission calculated the amount of refunds due the Pagers.
those two orders are amended, and the refund recalculated at 12% interest, then this
matter is concluded.
II.ARGUMENT
The Court agreed with the Pagers that this Commission erred in its selection of
6% per annum, as opposed to 12% per annum, in calculating the refund owed by QWEST
to the Pagers. The Court affIrmed the Commission, however, on all other aspects subject
to the appeal, including: 1) the calculation of refunds due the Pagers; 2) that the Pagers
are entitled to a reimbursement of transit traffic, and; 3) that the Commission was correct
when it ordered QWEST to reimburse the Pagers in the form ofa refund, rather than a
billing or other type of credit.
Lest there be any doubt as to the foregoing, the Opinion s Conclusion, found on
page 22 of the Court's Opinion, states:
The decision of the Commission is affIrmed except as to the interest
rate applied to the amount owed the Pagers The case is remanded
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.
for recalculation of interest. The parties have both prevailed and
lost on issues asserted. No costs or attorney fees are awarded.
Emphasis added
Specifically, the section discussing the refund due PageData starts with the
heading: "A. The Commission properly determined PageData s refund.Opinion at p.
10. The Court concluded that section holding: "The Commission s findings are
supported by substantial, competent evidence. The Commission s decision not to award
further reimbursement is affIrmed.Opinion at p. 13.
Regarding Tel-Car s refund, the Court held that the evidence before the
Commission: "necessitates upholding the Commission s findings that Tel-Car is not
entitled to these additional reimbursements.Opinion at p. 16.
With respect to QWEST's appeal of the Commission s decision on transit traffic
the Court held: "The Commission s decision ordering QWEST to refund the transit traffic
costs is affIrmed. The Commission regularly pursued its authority in accordance with
federal law and the facts show that QWEST did not possess the calling data to supply the
Pagers. " Opinion at p. 18.
Finally, with respect to the issue of billing credit versus refund, the Court held
that: "The decision of the Commission is neither arbitrary nor capricious.Opinion at p.
22. Regarding this issue, the Court pointed out that the Commission ordered a cash
refund if the Pagers ' alleged payment arrearages were less than the refunds owed by
QWEST. The Court recognized that QWEST had not supplied the arrearage data ordered
by the Commission. Consequently, the Commission argued on appeal that a cash refund
was appropriate. By holding that the Commission acted neither arbitrarily nor
capriciously, the Court clearly affIrmed the Commission on this issue and the Court
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.
recognized that the balances owed by Q WEST, as calculated by the Commission, already
include any alleged and proven arrearages.
III.EFFECT OF COURT'S RULING
Idaho Code Section 61-629 sets forth the "extent of review" that Commission
orders are subject to on appeaI. That statute also limits the Idaho Supreme Court to either
affIrming Commission orders, or setting them aside. This is, essentially, the same
standard by which district courts review other state agency actions on review under the
Idaho Administrative Procedures Act. See Idaho Code Section 67-5279.
Specifically, Section 61-629 provides, in part:
Upon the hearing the Supreme Court shall enter judgment, either
affirming or setting aside or setting aside in part the order of the
commission. In case the order of the commission is set aside or set
aside in part, the commission, upon its own motion or upon motion
of any of the parties, may alter or amend the order appealed from to
meet the objections of the court....
The statute states that in altering or amending its order, the Commission should
rely upon Idaho Code Section 61-629, the statute governing the process by which the
Commission alters or amends any order, whether appealed or not. That statute, in turn
simply states that the Commission shall notify the public utility in question and, in the
case of complaints, provide the utility an opportunity to be heard. There is no complaint
filed in this case to alter or amend a fmal Commission order because that, of course, was
the purpose of the appeaI.
The Supreme Court has unequivocally affIrmed the Commission in every respect
except one, the interest calculation. The Pagers respectfully submit that the recalculation
of interest is something that can be accomplished literally in several minutes using a basic
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.
calculator. Consequently, there is no need for rehearing. There is no right by any party
to introduce new evidence. There is no need for a comment period. In short, this lengthy
and exhaustive litigation has come to an end.
IV.CONCLUSION
QWEST is well aware of the Supreme Court's ruling and, by service of this
motion, has been put on notice of the Pagers' request for alteration of Order No. 28626.
The Pagers move the Commission for order with the refund recalculated at 12%, rather
than 6%, and the requirement that QWEST pay the resulting amount to the Pagers within
fourteen (14) days from the date of that order.
RESPECTFULL Y SUBMITTED thisL- day of October, 2005.
:.--;;-----".... /~- -"
Brad M. Pur y
.. "
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.
CERTIFICATE OF SERVICE
" /..... '-
I HEREBY CERTIFY that on the day of October, 2005, I caused to be
served the foregoing PETITIONERS/APPELLANTS BRIEF IN SUPPORT OF
MOTION FOR ALTERATION OF ORDER NOS. 29626 AND 29603 on the following,
by U.S. mail, postage prepaid, in Case No. USW-99-24.
William J. Batt
Batt & Fisher
O. Box 1308
Boise, ID 83701
Don Howell
Deputy Attorney General
Idaho Public Utilities Commission
472 W. Washington St.
Boise, ID 83702
c:._..
/' /"
1 I
,......
;l(~_Brad M. Purdy
,---~---,
~c:
:::.. ....
PETITIONER/APPELLANTS' BREIF IN SUPPORT OF MOTION FOR
ALTERATION OF COMMISSION ORDER NOS. 28626 AND 29603.