AT & T Communications of Pennsylvania, Inc. v. Pennsylvania Public Utility Com'n
| Decision Date | 15 February 1990 |
| Citation | 131 Pa.Cmwlth. 390,570 A.2d 612 |
| Parties | AT & T COMMUNICATIONS OF PENNSYLVANIA, INC., Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Argued Nov. 15, 1989. [Copyrighted Material Omitted]
James H. Cawley, with him, John J. Gallagher LeBoeuf, Lamb, Leiby & MacRae, of counsel: Kenneth L Demarest, for petitioner, AT & T Communications of Pa., Inc.
Lloyd R. Persun, Mette, Evans & Woodside, for petitioner/intervenor, MCI Tele-Communications of Pennsylvania, Inc.
Donna Stanek Zehner, Asst. Counsel, with her, Frank B. Wilmarth, Deputy Chief Counsel, and John F. Povilaitis, Chief Counsel, for respondent.
Debra M. Kriete, Asst. Consumer Advocate, with her, Daniel Clearfield, Sr. Asst. Consumer Advocate and David M. Barasch, Consumer Advocate, for intervenor, Consumer Advocate.
Before CRUMLISH, Jr., President Judge, and CRAIG, DOYLE, COLINS, PALLADINO, McGINLEY and SMITH, JJ.
Where the Pennsylvania Public Utility Commission initially orders that an ad hoc committee resolve conflicting interpretations under 52 Pa.Code § 64.22(2) for a local telephone exchange carrier's role in interexchange customer billing inquiries, and, by later action, rejects the committee's interpretation and recommended proposal, is the initial order (in 1988) interlocutory, and thus not a final, appealable order as of right because that order did not put the aggrieved parties "out of court?"
Also, does Title I of the federal Communications Act of 1934, 47 U.S.C § 153(a) (Act), preempt the commission's authority to regulate customer billing inquiries in order to protect consumers from unwarranted service suspensions for failure to pay interexchange charges to the local exchange carrier, which performs both intrastate and interstate customer billing services for the interexchange carriers?
AT & T Communications of Pennsylvania (AT & T) and MCI Telecommunications of Pennsylvania (MCI) (collectively "the interexchange carriers" or "IXCs") present these questions in their petitions for review from the commission's later June 27, 1989 decision to deny the IXCs' request for an evidentiary hearing, in which the commission initially denied, and instead, adopted a proposal from the Office of Consumer Advocate (OCA) to establish an ad hoc committee to develop a proposed interpretation of § 64.22(2) and solution to the petition's issues.
On August 27, 1984, the commission promulgated regulations governing billing practices for residential telephone services. These regulations are set forth at 52 Pa.Code §§ 64.1-.213 (Chapter 64). Section 64.22 of these regulations states that:
A local exchange carrier may provide billing services for interexchange carriers under the following conditions:
(1) The local exchange carrier purchases the account receivable prior to billing for the service.
(2) The local exchange carrier assumes responsibility for settling disputes [1] involving accounts receivable which it purchases.
(3) The local exchange carrier applies its deposit rules. (Emphasis added.)
When the unified Bell Telephone System was divided into independent regional companies in 1984, AT & T's centralized billing system ceased. Because AT & T began offering intrastate services in Pennsylvania, AT & T initially subscribed to the billing and collections services of Bell of Pennsylvania (Bell or the "LEC"). However, based on AT & T and Bell's interpretation of § 64.22(2), AT & T assumed responsibility for its own IXC customer inquiries, installed a toll-free "800" inquiry telephone number, and obtained permission from Bell to have this toll-free telephone number put on customer bills sent by Bell, who billed for AT & T as well as itself. This practice continued through 1987.
In 1987, an agreement between AT & T and Bell continued the publication of the "800" telephone number on customer bills sent by Bell. The commission's Bureau of Consumer Services (BCS) participated in developing procedures enabling a LEC, when receiving customer inquiries on IXC charges, to channel these inquiries to the IXC.
However, after developing these procedures, BCS requested that all disputes involving IXC charges should be handled solely by the LEC, and not channelled to the IXC. BCS further stated that it would be inappropriate to list the IXC's customer inquiry telephone number on billing.
In a February 19, 1988 letter to Bell, the commission stated its interpretation of § 64.22 as follows:
As we discussed, it is the Commission's position that the interexchange carrier's telephone number should not appear on the bill for billing inquiry or dispute purposes, according to 52 Pa.Code § 64.22. All billing inquiry, reporting, investigation and/or dispute resolutions should be handled by Bell of PA, not the interexchange carrier. (Emphasis in original.)
Bell agreed to comply with the commission's interpretation, but requested six months to prepare for such compliance.
On May 31, 1988, AT & T filed a petition with the commission, which sought a formal evidentiary hearing to determine a proper interpretation of § 64.22(2), so that AT & T could address the adverse effects of the BCS's interpretation of the regulation. AT & T supported its petition on the fact that it had an operational system in place to deal with IXC customer inquiries, and thus shifting the responsibility to Bell would cause substantial cost increases for AT & T's customers.
MCI filed an answer in support of AT & T's petition. OCA also filed an answer, which suggested that a committee, comprised of BCS, LEC, IXC, and OCA representatives, discuss and resolve the issues raised in AT & T's petition. OCA's answer also stated that:
To the extent that the Committee is able to develop a proposed solution to the problem, the need to hold a record proceeding to resolve this matter may be eliminated. If the Committee is unable to resolve the issue satisfactorily, the [commission] could then require the scheduling of hearings or a comment/reply comment procedure.
On November 29, 1988, the commission adopted OCA's proposal, stating that:
We believe the time is right to revisit the issue of the interexchange carrier's ability to interact with customers for inquiry and dispute purposes. We do not find, however, that the institution of formal generic investigation proceedings into the issue is either necessary or in the public interest at this time. (Emphasis added.)
The commission's order initially denied the IXCs request for an evidentiary hearing, established a committee on the matter, and implemented a six-month waiver on compliance with § 64.22.
On April 27, 1989, the commission amended § 64.22, commenting as follows:
§ 64.22 Billing service for interexchange carriers--The existing requirement in subsection (1) that a LEC purchase the account receivable of the interexchange carrier prior to providing billing service for the interexchange carrier was deleted. With the deletion of subsection (1), the phrase "which it purchases" in subsection (2) must also be deleted since purchasing the account receivable is no longer required.
After deliberations, the committee proposed a nine-month trial program in which the LEC would list the IXCs' customer inquiry telephone number on billing. However, at its June 27, 1989 public meeting, the commission, by a 2-2 tie vote, rejected the committee's proposal without issuing a formal order.
AT & T filed a reconsideration petition, requesting that the commission (1) hold evidentiary hearings on the matter, (2) adopt the nine-month program and consider the results in a formal investigation, (3) extend the temporary waiver of § 64.22(2) pending a formal investigation and hearing and until a fifth commissioner is able to cast a vote on the matter, or (4) find that the regulation of billing and collection services, specifically billing inquiry services, is preempted by the Act. MCI filed a similar petition, and on July 20, 1989, the commission, again by a 2-2 tie vote, denied the reconsideration petitions without issuing a formal order.
On July 24, 1989, AT & T filed a petition for review with this court, and MCI followed with its own petition on July 28, 1989. On August 24, 1989, a consent order of this court stayed the proceedings and continued the commission's waiver of compliance with § 64.22 pending disposition of the matter. The commission then filed a motion to quash the IXCs' petitions on October 30, 1989. We consolidated both matters for disposition. [2]
The commission initially seeks to quash the IXCs' petitions contending that the November 29, 1988 order was a final, appealable order, and thus the petitions are untimely under Pa.R.A.P. 1512(a)(1).
In determining an order's finality, the pivotal question is whether the order puts the aggrieved party "out of court." Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). In general, an order is final if it ends the litigation, or, alternatively, disposes of the entire case, Vanmetre v. Unemployment Compensation Board of Review, 128Pa.Commonwealth Ct. 644, 564 A.2d 540 (1989), and thus precludes the aggrieved party from presenting the merits of his or her claim to the tribunal. Peoples Natural Gas Co. v. Pennsylvania Public Utility Commission, 124 Pa.Commonwealth Ct. 59, 555 A.2d 288 (1989).
Moreover determining an order to be "final" for appeal purposes is a judicial conclusion which results from practical rather than technical interpretation, Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), taking into account the order's ramifications. ...
To continue reading
Request your trial