Ryder v. Idaho Public Utilities Com'n
| Decision Date | 06 September 2005 |
| Docket Number | No. 29175.,29175. |
| Citation | 141 Idaho 918,120 P.3d 736 |
| Parties | In the Matter of the Joint Petition of Robert Ryder, dba Radiopaging Service, Joseph McNeal, dba Pagedate and Interpage of Idaho, for a Declaratory Order and Recovery of Overcharges from U.S. West Communications, Inc. Robert RYDER dba Radio Paging Service, Joseph B. McNeal dba Pagedate and Interpage of Idaho, Petitioners-Appellants-Cross Respondents, and Tel-Car, Inc., Petitioner, v. IDAHO PUBLIC UTILITIES COMMISSION, Respondent on Appeal-Cross Respondent, and Qwest Corporation, Respondent-Respondent on Appeal-Cross Appellant. |
| Court | Idaho Supreme Court |
Brad M. Purdy, Boise for appellants.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Idaho Public Utilities Commission. Donald L. Howell argued.
Batt & Fisher, Boise, for respondent Qwest Corporation. William J. Batt argued.
Robert Ryder, d/b/a Radio Paging Service, Joseph B. McNeal, d/b/a PageData and InterPage of Idaho, and Tel-Car, Inc. (Pagers), appeal from Order(s) No. 29064 and 29140 of the Idaho Public Utilities Commission (IPUC). Qwest Corporation (Qwest), cross appeals from Order(s) No. 29555 and 29603 of the IPUC.
The Pagers are Commercial Radio Service Providers (CMRS) providing one-way paging services to their customers in Idaho through what is commonly called a Type I Interconnection with the US West (Qwest1) network. PageData negotiated an Interconnection Agreement with Qwest which was approved by the Commission on September 10, 1999. Radio Paging also negotiated an Interconnection Agreement, which was approved by the Commission on May 13, 1999. InterPage and Tel-Car have no Interconnection Agreement with Qwest.
On September 24, 1999, the Pagers filed a petition for Declaratory Order stating two counts for relief. According to their petition, each Pager has purchased certain facilities from Qwest for the purpose of interconnecting with Qwest and transporting traffic to the Pagers' respective customers. The Pagers contend that Qwest is prohibited from charging for the use of these facilities, since September 1996, the date the Federal Communications Commission (FCC) rules applicable to interconnection became effective. More specifically, the Pagers allege that the Telecommunications Act of 1996 (47 U.S.C. §§ 153 et seq.) and the FCC rules (47 C.F.R. § 51.701) prohibit Qwest from charging them or other paging companies for use of Qwest's transmission facilities on a dedicated basis to deliver local traffic to them that originates on Qwest's network. The Pagers also allege that Qwest has offered or provided other paging companies more favorable terms, conditions or rates than have been offered them. The Pagers seek reimbursement for all charges incurred under the Price List2 during the period of time not covered by an Interconnection Agreement. The Pagers contend that these services and dedicated facilities used to deliver traffic to them must be provided free of charge. On July 5, 2000, the Commission dismissed both Counts (Order No. 28427).
The Pagers filed a Motion for Reconsideration alleging that the Supremacy Clause of the United States Constitution and the FCC rules obligate the states, in this case the Commission, to enforce federal law. Qwest answered the Petition for Reconsideration which supported the grant of reconsideration to consider the effect of a recent decision, TSR Wireless, LLC v. US West Communications, Inc., 2000 WL 796763, 21 Communications Reg. (P & F) 49 (F.C.C. 2000). The Commission granted the Motion for Reconsideration on August 9, 2000. Upon rehearing, the Commission held (Order No. 28601) that pursuant to I.C. § 62-616, the Commission has the authority to resolve customer complaints, subject to Title 62, about whether the price and conditions of service are in conformance with filed tariffs or price lists. The Commission found that there is an agreement between the parties that the Pagers are entitled to a billing credit or reimbursement for the charges they have incurred sometime after late 1996. The Commission: (1) reinstated Count I and granted the Pagers relief; (2) found Tel-Car was entitled to a billing credit or reimbursement for the period between September 24, 1996, and September 24, 1999; (3) found InterPage was entitled to a billing credit or reimbursement for the period between September 24, 1996, and September 24, 1999; (4) found Radio Paging was entitled to a billing credit or reimbursement for the period between September 24, 1996, and May 13, 1999; (5) found PageData was entitled to a billing credit or reimbursement for the period between September 24, 1996, and September 10, 1999; and (6) ordered the parties to submit to each other detailed materials evidencing amount of the billing credit or reimbursement so that they may meet and attempt to agree upon the amount of credit or reimbursement.
On January 2, 2001, the Pagers filed a Petition to Amend several paragraphs of the Commission's Final Order on Reconsideration No. 28601. On February 5, 2001, the Commission issued Order No. 28626 partially granting and partially denying the Petition to Amend.
Due to the parties' inability to resolve the issue of the billing credit or reimbursement, the Commission ordered the appointment of a Hearing Examiner. The Hearing Examiner conducted an evidentiary hearing and received post-hearing briefs. He issued his proposed order on November 30, 2001, recommending that the Pagers were entitled to billing credits, although not in the amount they had claimed. The Hearing Examiner found that Qwest had offered better evidence regarding the billing and payment information from November 1996 to September 1999 and that some of the services and facilities used by the Pagers were used to provide other, non-paging communication services (long-distance, cellular, two-way answering, data, Internet access, and private line services) to their customers. The Hearing Examiner determined that Qwest had made reasonable efforts to distinguish facilities used for delivering paging traffic by performing a billing element-by-element review. Consequently, the Hearing Examiner determined that credit was not due for: (1) non-paging services and facilities, (2) "transit traffic" from carriers other than Qwest, and (3) services and facilities provided by Qwest that effectively allowed customers to call the Pagers toll-free. The Hearing Examiner directed that Qwest make minor changes to its calculation of the billing credits owed to the Pagers.
The Pagers timely filed exceptions to the Proposed Order. Qwest submitted its recalculation of the billing credit owed to the Pagers. Qwest requested permission to file a reply to the Pagers' exceptions and followed that request by submitting various attachments to its "Request for Leave to Reply." The Pagers filed an objection to Qwest's request and filed another request to supplement their exceptions to the Proposed Order. Qwest did not file an answer to this latest request.
Following conclusion of the proceedings before the Hearing Examiner, the Commission reviewed the evidentiary record and the Hearing Examiner's recommended findings of fact. After conducting its de novo review, the Commission issued a lengthy Order affirming and expanding on the Hearing Examiner's proposed findings of fact. The Commission's Credit Order No. 29064 issued July 17, 2002, addressed the following issues.
1. Refund Period: In the Commission's Credit Order, it determined that the refund period for each carrier should begin November 1, 1996 (i.e., effective date of the FCC's Local Competition Order). The Pagers' complaint asked for refunds up until the time they entered into interconnection agreements with Qwest. The Commission determined that the refund period for each Pager was: (1) PageData — November 1, 1996, to September 10, 1999; (2) Radio Paging — November 1, 1996, to May 13, 1999; and (3) Tel-Car — November 1, 1996, to September 24, 1999.
2. The Two Late Pleadings: The Commission declined to consider the Pagers' two late-filed pleadings because the record had already closed. The Commission observed that the "so-called secret" interconnection agreements3 were not applicable to this case because: (1) the agreements and their terms were not pertinent to the substance of the complaint, and (2) the agreements were (with one exception) all executed after the refund periods.
3. Non-Paging Services: The Commission agreed with the Hearing Examiner that it was inappropriate to credit the Pagers for their non-paging services. The Pagers were only entitled to credits for their one-way paging services.
4. Transit Traffic: Although Qwest is prohibited from charging one-way paging carriers for the delivery of Qwest-originated traffic, the Commission recognized that the FCC allows Qwest to charge the Pagers for "transit traffic." In compliance with these controlling FCC orders4, Qwest is permitted to charge the Pagers for transit traffic originated by third party carriers. The Commission found that 24% of the Pagers' traffic was properly classified as transit traffic.
5. Wide Area Calling: The Commission also found that Qwest may charge the Pagers for "wide area calling" arrangements. Wide area calling generally refers "to an arrangement that allows a paging carrier to subsidize the cost of calls from LEC's customers to the paging carrier's customers, when completing such calls requires the LEC to transport them from one of its local calling areas to another of its local calling area."5 The Commission explained that, "Qwest may charge its customers for long-distance calls from its Magic Valley or eastern Idaho local calling regions to a Pager located in Boise." Thus, Qwest may appropriately charge the Pagers for the use of these wide area calling services and facilities.
6. Calculations of the Refunds: With the exception of calculating additional...
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