Petitioners Move Pursuant to IDAPA 31

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

The Petitioners, Robert Ryder dba Radio Paging Service, Joseph McNeal dba PageData and Interpage of Idaho and Tel-Car, Inc. move pursuant to Rules 326 and 331 of the Commission’s Rules of Procedure to “amend” several ordering paragraphs of the Commission’s Final Order on Reconsideration in this case.[1] In response Qwest Corporation (hereinafter “Qwest”) filed a Motion to Dismiss and an Answer to the Petition to Amend. The Motion to Dismiss argues that the Petition should be dismissed for failure to comply with the requirements of Commission Rules 326 and 331. IDAPA 31.01.01.326 and .331. In the event the Petition to Amend is not dismissed on procedural grounds Qwest’s Answer addresses each of the Petitioners’ proposed amendments.

PROCEDURAL STANDARDS

The Commission can at any time amend any order or decision made by it after notice is given to the public utility affected and after opportunity to be heard in the case of complaints. Idaho Code § 61-624. Any person may petition to amend a Commission order pursuant to Idaho Code § 61-624. IDAPA 31.01.01.326.01. The petition to amend must demonstrate “[t]hat there have been changed circumstances or that new information has become available since the order was issued, or that there are other good and sufficient reasons for . . . amending the order. The Commission may dismiss as defective any such petition not complying with this rule and with Rule 53.” IDAPA 31.01.01.326.01(b) (emphasis added). Rule 53 (Petition) requires each petition to fully state the facts upon which it is based and to cite to particular statutes, rules or other controlling law. IDAPA 31.01.01.053.

Pursuant to Commission Rule 331, a party may seek reconsideration of a Commission order within twenty-one (21) days after the service date of issuance of any final order. Furthermore, “[p]etitions for reconsideration must set forth specifically the ground or grounds why the petitioner contends that the order or any issue decided in the order is unreasonable, unlawful, erroneous or not in conformity with the law, and a statement of the nature and quantity of evidence or argument the petitioner will offer if reconsideration is granted.” IDAPA 31.01.01.331.01 (emphasis added).

COMMISSION DECISION

For organizational purposes the Commission has grouped Petitioners’ requests into seven proposed amendments.[2] These proposed amendments, Qwest’s responses and the Commission’s decision are outlined below.

First Amendment

The Petitioners request that the language “a billing credit or” be struck from the third, fourth, fifth and sixth ordering paragraphs on pages 12 and 13 of Order No. 28601. See also, Petition to Amend, Exh. 1. 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. IDAPA 31.01.01.326 and .331. Accordingly, this request is denied.

Second Amendment

Petitioner Tel-Car, Inc. requests that the Commission amend its Order to expand its recovery period from September 24, 1996 to “the date Qwest complies with such FCC authority[,]” rather than until September 24, 1999 as stated in the third ordering paragraph. Order No. 28601 at 12. In response Qwest requests denial of this proposed amendment as it contends that Tel-Car’s participation in this case has been lacking, if not entirely absent. For example, Qwest argues that if Tel-Car wished to present evidence on this issue it should have done so long ago.

The Commission finds that Petitioner Tel-Car has not provided any justification to expand its recovery period as required by Commission Rules 326 and 331. Id. Accordingly, this request is denied. Moreover, formal complaints and petitions filed before the Commission must “pray for the relief desired.” IDAPA 31.01.01.053 and .054. In its Petition to Intervene Tel-Car states, “[t]he interests of Tel-Car are identical to those of the other Petitioners, Robert Ryder and Joseph McNeal. Tel-Car incorporates the Petition filed herein by said Petitioners and requests relief identical to that sought by said Petitioners.” Petition to Intervene at 1 (emphasis added). The relief prayed for in Petitioners’ Count I of the Complaint is as follows:

For a declaratory ruling that the dedicated transport and channel facilities charges on U.S. West’s tariff for CMRS providers are preempted and impermissible charges and that Petitioners are entitled to recovery of amounts paid thereunder between September of 1996 and the time Petitioners entered into their Type One Paging Connection Agreement with U.S. West.

Complaint at 5 (emphasis added). This record demonstrates that the relief now sought by Tel-Car at this late date is materially different than that which was originally prayed for. Tel-Car should have amended the Complaint if it wished to seek this recovery period. IDAPA 31.01.01.066; I.R.C.P. 15(a). Such a request now is inappropriate after issuance of the Order on Reconsideration. Accordingly, this proposed amendment is denied on this basis as well.

Third Amendment

Interpage requests that its recovery period be amended from September 24, 1999 to September 10, 1999. See ordering ¶ 4 at 12. Qwest is silent on this proposed amendment.

Petitioner Interpage requests that it be allowed recovery of billing credits or reimbursements for the same time period as PageData. See ordering ¶ 4 at 12. On June 8, 1998, PageData purchased the assets of Interpage including all of its customers, accounts and telephone numbers provided by Qwest. Petitioners’ Brief at 2. From the date of purchase Interpage and PageData have been operating under the latter’s name. Accordingly, Interpage was part of PageData’s interconnection agreement with Qwest, approved by the Commission on September 10, 1999. In Order No. 28601 the Commission found that PageData could recover billing credits or reimbursement from Qwest through this date. Because Interpage and PageData are one and the same, it is reasonable to allow Interpage to also recover only through September 10, 1999. Accordingly, this proposed amendment is granted and Order No. 28601 is so amended.

Fourth Amendment

Radio Paging Service, PageData and Interpage request language be added to ordering paragraphs four, five and six of the Order so that they may seek recovery for any overcharges made under their respective interconnection agreements with Qwest. See, Petition to Amend, Exh. 1 at ¶¶ 4-6. See also, Order No. 28601 at 12-13. Qwest argues that Petitioners did not seek this relief in their Complaint. Instead, Petitioners requested, “a declaratory ruling that they are entitled to recovery of [overcharges] from the effective date of Section 51-704(d) [sic] until such time as each Petitioner entered into its interconnection agreement with U.S. West.” Complaint at 4 (emphasis added). Furthermore, Qwest contends that Petitioners have not entered any evidence into the record demonstrating that they have been overcharged under their respective interconnection agreements with Qwest.

Petitioners request recovery “for any overcharges made under its interconnection agreement.” Petition to Amend, Exh. 1. The original Petitioners, Radio Paging and PageData (including Interpage), are not entitled to this proposed amendment of Order No. 28601. They have failed to provide justification for this amendment, did not enter evidence into the record to substantiate this allegation, and more importantly, did not pray for this relief in their Complaint. In their Complaint, Radio Paging and PageData prayed for recovery for alleged overcharges up to “such time as each Petitioner entered into its interconnection agreement with U.S. West.” Complaint at 4. In other words, these Petitioners only sought recovery for the period of time before their respective interconnection agreements.[3] See IDAPA 31.01.01.054.04. Thus, their request now seeks to expand the time frame of their recovery. The Petitioners should have amended their Complaint if they wished to seek this extended recovery period. IDAPA 31.01.01.066; I.R.C.P. 15(a). Such a request now is inappropriate after issuance of the Order on Reconsideration.

In addition, the interconnection agreements for Radio Paging and PageData each have a provision addressing dispute resolution. See Case No. USW-T-99-5, Type 1 Paging Agreement, § 8.15, p. 16; Case No. USW-T-99-13, Type 1 Paging Agreement, § 17.16, p. 27. This provision in these agreements is identical and reads in pertinent part:

if any claim, controversy or dispute between the Parties, their agents, employees, officers, directors or affiliated agents (“Dispute”) cannot be settled through negotiation, it shall be resolved by arbitration conducted by a single arbitrator engaged in the practice of law with knowledge of federal and applicable state telecommunications law, under the then current rules of the American Arbitration Association (“AAA”). . . . Nothing in this Section shall be construed to waive or limit either Party’s right to seek relief from the Commission or Federal Communications Commission as provided by state or federal law.

Id. In the present case Petitioners have made no attempt to arbitrate whether they have been overcharged under the terms of the interconnection agreement as called for in those agreements. Although the last sentence of this provision does state that a party may seek relief from the Commission if state law provides such relief, it is much too late for the proposed amendment to be bootstrapped to the original Complaint.

For the above reasons this proposed amendment is denied.

Fifth Amendment

Radio Paging Service requests that the Commission amend the ending date for the period of recovery, in ordering paragraph five of the Order from May 13, “1996” to May 13, “1999.” Qwest does not oppose this amendment.

The Commission erroneously stated that the end of Radio Paging’s recovery period was May 13, “1996.” The correct date which should have been in the Order is May 13, “1999.” Accordingly, the Commission so amends Order No. 28601.

Sixth Amendment

Petitioners request that the Commission add a paragraph to the Order which requires Qwest to pay each Petitioner interest on amounts they are owed at a rate of 12%. Petition to Amend, Exh. 1; see also, Exh. 2 citing Idaho Code § 28-22-104. In its Order, the Commission referred to Idaho Code § 61-641 as authority for ordering reparations. Section 61-641 also addresses the Commission’s authority to award interest on reparation amounts. Qwest argues that the Petitioners are not entitled to an award of interest pursuant to Idaho Code § 61-641 because this statute is inapplicable to this matter. Qwest asserts that this statute is part and parcel of the traditional rate-of-return regulatory scheme under Title 61, and thus has no application to Title 62 services. Furthermore, Qwest argues there is no other authority allowing for the award of interest.

In Order No. 28427, the Commission found that Idaho Code § 62-616 provided it with authority to resolve the Petitioners’ complaints in this case. This section provides that the Commission “may by order, render its decision granting or denying in whole or in part the subscriber’s complaint or providing such other relief as is reasonable[.]” Idaho Code § 62-616 (emphasis added). In this case the Commission found that Petitioners were entitled to billing credits or reimbursement from Qwest. Order No. 28601. The Commission relied upon Idaho Code § 62-616 (“other relief as is reasonable”) and Idaho Code § 61-641 as a basis for it to order reparation in this case. As with other provisions of Title 62, the Commission looked to Title 61 to fashion reasonable relief in this case. See e.g., Idaho Code §§ 62-606; 62-608; 62-611; 62-614(2); 62-619. The Commission relies on these same authorities to now find that “other relief as is reasonable” would include “interest from the date of collection[.]” Idaho Code §§ 62-616 and 61-641.

However, the Commission does not find the appropriate rate of interest to be 12%. As has been our practice, the Commission will use the interest rate on utility deposits set out in our Telephone Customer Relations Rule 106. IDAPA 31.41.01.106.01. For example, in Order No. 28366 the Commission ordered that interest would accrue on a customer rebate Avista Corporation was allowed to defer distribution of until a later date. To calculate this amount the Commission selected the deposit interest rate from Rule 106. In a similar telephone case, the Commission awarded simple interest on overcharges based upon the rate of interest for utility deposits pursuant to Rule 106. Idaho Public Utilities Commission v. General Telephone Company of the Northwest, Inc., Order No. 20974 at p. 9, Case No. U-1002-58 (January 9, 1987). Finally, in Order No. 27660 the Commission found that the interest rate established for payments on customer deposits is appropriate for calculating interest on the unused balance resulting from Idaho Power Company’s DSM revenue requirement being less than the revenue sharing adjustment.

Commission Rule 106.02 sets the rate of interest for customer deposits and states, “[o]n or before November 15 of each year, the Commission will determine the twelve (12) month average interest rate for one-year Treasury Bills for the previous November 1 through October 31, round that rate to the nearest whole percent[.]” IDAPA 31.41.01.106.02. The interest rate for amounts accumulated from 1996 through 1998 was 6% and 5% for amounts accumulated between the years 1998 and 1999. These shall be the rates used to calculate the interest owed to the Petitioners.

For the reasons stated above the Commission amends Order 28601 so that Petitioners are awarded simple interest at the interest rate established by Commission Rule 106. IDAPA 31.41.01.106.

Seventh Amendment

The Petitioners request that the Commission award them more than $40,000 in attorney fees pursuant to Idaho Code § 61-641. Petition to Amend at 1. They request the recovery of attorney fees for the Complaint, for legal services relating to the interconnection agreements, and for legal services rendered by a Washington, D.C. firm for Radio Paging’s interconnection agreement. Qwest argues that the Commission does not have authority to award attorney fees as the general rule is that an administrative agency has no power to award attorney fees unless specifically authorized by statute or by an express agreement between the parties. In this case Qwest argues that the Commission has not been granted express authority to award attorney fees to the Petitioners and must deny this request.[4]

Idaho Code § 61-641 does not explicitly provide authority for the award of fees. Consequently, a request for fees under this statute is not authorized. Moreover, in Idaho the general rule is that attorney fees cannot be recovered in an action unless authorized by statute or by express agreement of the parties. See Kidwell v. Fenley, 96 Idaho 534, 531 P.2d 1179 (1975). See also, Idaho Power Company v. Idaho Public Utilities Commission, 102 Idaho 744, 751, 639 P.2d 442, 459 (1981) (“[f]rom the foregoing statutes, [Idaho Code §§ 12-120, 12-121, 28-3-510A, 48-608(3), 15-3-710, 32-704, 41-1839, 30-1446, 45-605, 72-803][,] it is clear that the Idaho legislature has provided for the award of attorney fees specifically when it so intends, and only when it so intends.”) A review of relevant authorities reveals that no Idaho statute authorizes the Commission to award attorney fees to Radio Paging, PageData and InterPage as Complainants to recover attorney fees in this action. Furthermore, the parties have not expressly agreed that the prevailing party should receive an award of attorney fees. Accordingly, with regard to these Petitioners, this proposed amendment is denied.

The only authority the Commission has to award attorney fees arises under Idaho Code § 61-617A and Commission Rules 161-166. IDAPA 31.01.01.161-166. Under this authority only an intervening party has the opportunity to recover attorney’s fees. In order to seek attorney fees, the intervening party must file a timely petition pursuant to Commission Rules 31.01.01.162 and .164. Furthermore, after this filing the Commission must make the following findings:

(a) A finding that the participation of the intervenor has materially contributed to the decision rendered by the commission; and

(b) A finding that the costs of intervention are reasonable in amount and would be a significant financial hardship for the intervenor; and

(c) The recommendation made by the intervenor differed materially from the testimony and exhibits of the commission staff; and

(d) The testimony and participation of the intervenor addressed issues of concern to the general body of users or consumers.

Idaho Code § 61-617A; IDAPA 31.01.01.165.

The only intervenor in this case was Tel-Car. However, it did not file a timely petition for intervenor funding. Furthermore, the Commission finds that Tel-Car has not materially contributed to the decision finally rendered in this case. Tel-Car offered no arguments of its own, sought no different relief than the other Petitioners, and in general participated very little in this case. It could be said that Tel-Car merely came along for the ride. Under these circumstances Tel-Car clearly is not entitled to attorneys fees pursuant to the intervenor funding authorities. Accordingly, this proposed amendment, with regard to Tel-Car, is denied.

FURTHER PROCEEDINGS

In Order No. 28601 the Commission ordered Qwest and the Petitioners to exchange materials that would assist them in determining the exact amount of the billing credit or reimbursement each Petitioner is due. Order No. 28601 at 13. After this exchange, the parties were to meet to attempt to resolve this matter on or before January 23, 2001, and advise the Commission of the status of this matter thereafter. Id. The Commission was hopeful that through this process the parties would resolve this matter without the need for further action by the Commission. However, the Commission has been advised that the parties have not been successful in resolving this matter. This deadlock is problematic.

Order No. 28601 did not establish what amount each Petitioner was owed (if anything) and the parties have not entered any evidence into the record that would allow the Commission to make such a determination. Based upon the lack of a record, this issue was left to the parties to resolve. To determine the amount each party is owed the Commission would need to expend considerable amounts of time developing an adequate record. Furthermore, this exercise would almost certainly also cause the parties to incur further costs. The Commission believes issuance of this Order narrows the disputed issues and possible settlement alternatives. Accordingly, the Commission orders the parties to continue settlement discussions to resolve this matter. The Commission also orders the parties to exchange any relevant information and to meet in order to settle this matter within thirty (30) days of the date of this Order.