INTRODUCTION - California

?Decision 20-08-024August 6, 2020BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIAG. Joseph Buck, Complainant, vs.Frontier California, Inc., (U1002C) f/k/aVerizon California, Inc., Defendant.C.18-09-004ORDER GRANTING REHEARING OF DECISION (D.) 19-11-007 TO MODIFY THE DECISION AND DENYING REHEARING, AS MODIFIED INTRODUCTIONToday’s decision disposes of the Application for Rehearing of Decision (D.) 19-11-007 (or “Decision”), filed by G. Joseph Buck (“Applicant”). In the Decision, the Commission resolved a complaint filed by G. Joseph Buck (Applicant) against Frontier California, Inc. (Frontier), finding in favor of the Applicant on some issues but not on others.Applicant timely filed the instant rehearing application, alleging the following: (1) the Decision did not make appropriate findings on the issues laid out in the Scoping Memo; (2) the Decision incorrectly found that the allowances credit tariff was ambiguous, given that parties were not given the opportunity to comment on it; (3) the Decision ignored evidence in the record in determining that the measured rate service tariff was ambiguous; (4) the Decision ignored evidence in the record showing that Frontier had acted inappropriately in filing Advice Letter 12776; (5) the Decision ignored evidence in the record in determining that Frontier did not act inappropriately in charging Applicant for Call Restriction Service; and (6) the Decision misstates Applicant’s claim as to Frontier’s imposition of compulsory arbitration, and failed to make findings on this issue. Frontier timely filed a response on December 26, 2019, stating that the rehearing application attempts to re-litigate already-decided issues and fails to specify legal error. We have considered each of the allegations raised in the rehearing application and find merit to Applicant’s claims regarding the measured rate service tariff and Advice Letter 12776. We therefore grant rehearing to order Frontier to re-file its measured rate service tariff as a Tier 2 advice letter filing within 30 days after this decision is issued to bring it into compliance with Commission decisions and policy which require Frontier to apply the measured rate service allowance credit at issue to Zone 3 calls. We direct our Communications Division to review and approve the tariff for consistency with decision D.84-07-108. As modified herein, rehearing is denied on all other issues raised by Applicant.DISCUSSIONThe Decision inaccurately found that Frontier’s interpretation of the Tariff was reasonable. The rehearing application alleges that the Decision committed legal error by violating the substantial rights of the parties, in finding that the tariff language pertaining to the measured rate service allowance is ambiguous. The application alleges that the parties were never provided with the opportunity to address the conclusion that the tariff was ambiguous, nor were they afforded the opportunity to contest the related factual findings. (Rehrg App., see pp. 2-7.) The rehearing application also alleges that the Commission did not make an appropriate finding with regard to Scoping Memo Issue 1, which asked what were “[t]he requirements of Frontier’s tariff with respect to measured rate service as they existed prior to March 10, 2018, as per Frontier advice letter 12732, and as they existed from March 10, 2018 as per Frontier Advice Letter 12776.” Since Applicant raised the issue of measured rate service on rehearing, we have reviewed Frontier’s tariff and find that the Decision incorrectly interpreted the Tariff, as prior Commission precedent and policy dictated that the credit in question applied to Zone 3 calls. At issue here was whether Frontier improperly decided not to apply a $3 monthly allowance credit to “local and ZUM calls” as described in Schedule A-1 of its tariff for measured rate service (“Tariff”), as presented in Advice Letter 12732. The Zone Usage Measurement (“ZUM”) plan established, for measured rate telephone service, three calling zones based on the geographical distance from the rate center in each local exchange. Applicant alleged that his previous service provider, Verizon, had historically applied a $3 usage allowance to first his local exchange (Zone 1 and 2) calls, with any leftover amount applied towards his Zone 3 calls. Beginning on April 01, 2016, Applicant alleged that Frontier, which had replaced Verizon as his service provider, improperly failed to apply any leftover usage allowance to the Applicant’s Zone 3 calls, which Applicant alleged were “ZUM calls.” We agree with Applicant that Frontier’s tariff was inaccurate regarding measured rate service. Commission precedent and policy dictate that Frontier was in fact required to apply the credits at issue to Zone 3 calls. Commission precedent and policy dictates that Frontier was required to apply the monthly allowance credit to Zone 3 Calls.In our review of the Application for Rehearing, we have reviewed previous Commission decisions regarding the establishment of the Zone Usage Measurement plan, as well as the decision approving Frontier’s provision of measured rate service (via a Verizon predecessor). This review makes clear that Frontier is required to apply the monthly allowance credit to Zone 3 calls. The ZUM plan was first implemented in 1979 via a Pacific Telephone and Telegraph Company application proceeding. The decision establishing the ZUM plan notes that “Under the ZUM Plan the 3MMU and 4MMU Routes would be converted to zones of local calling … and an allowance for zone- calling usage would be included in the usage allowance for certain one-party business and residence measured rate services.” (Emphasis added.) The above 1979 decision intended for the usage allowance to apply to both Zone 2 and 3 calls, in contravention to the conclusions of Decision 19-11-007. Although Frontier has argued that Zone 3 calls are not “local” calls, the language of this decision is clear that, as a matter of law, Zone 3 calls are in fact local calls. Additionally, the decision granting Frontier’s predecessors the authority to operate measured rate service (which Frontier has inherited) clearly stated that the usage allowance applies to Zone 3 calls. (Application of General Telephone Company of California, a corporation, for authority to increase certain intrastate rates and charges for telephone services; And Related Matters [D. 84-07-108] (1984)). As discussed above, Frontier took over provision of service from Verizon California, Inc. in 2015. Both parties agree that Complainant’s service was transferred from Verizon to Frontier as a result of this change, under the same tariffs. Both parties also agree that the Frontier tariff in question duplicated a tariff brought over from Verizon. Verizon had previously operated until 2005 as GTE California, or GTEC, which was the corporate name adopted in 1987 by General Telephone of California. In a 1984 decision authorizing the use of zone usage measurement rates for General Telephone of California, the Commission stated “[t]he adopted residential measured rate will include an allowance for $3 of local usage, that can apply to Zone 1 calls (billed in 5-minute increments at 7 ) as well as ZUM Zone 2 and 3 calls.” As Frontier has inherited Verizon’s and General Telephone of California’s measured rate service operating authority, it has also inherited the practices laid out by the decisions that granted that authority. Prior Commission decisions via which Frontier has inherited its operating authorities have unambiguously stated that the $3 allowance in question should apply to Zone 3 calls, thus treating them as local calls. Frontier’s interpretation of the tariff allowing it to stop applying the usage allowance to Zone 3 calls is a substantial change to the Tariff in conflict with existing Commission decisions and is thus unreasonable. As shown above, Frontier’s interpretation conflicts with Commission precedent and policy regarding the measured rate service ZUM plan. Decision 19-11-007 concluded that Frontier’s original Advice Letter filing was ambiguous, and therefore the filing of Advice Letter 12776 as a Tier 1 advice letter was proper as it simply clarified that ambiguity. We find here that Frontier’s position, instead of being a reasonable interpretation of the tariff, is in direct conflict with Commission policy and precedent which established that the measured rate service $3 monthly usage allowance credit should be applied to ZUM Zone 3 calls. Frontier’s decision to end that practice was a substantial change inconsistent with the 1984 decision and other Commission decisions and we find merit in Applicant’s arguments regarding the allowance credit. Further, because this advice letter proposed a substantive change to the Tariff, the changes should not have been filed as a Tier 1 Advice Letter. Accordingly, Frontier is ordered to revise its measured rate service tariff, by filing a Tier 2 Advice Letter within 30 days from the date this order issues, stating that the measured rate service $3 monthly usage allowance credit in question is to be applied to Zone 3 calls. Once reviewed and approved in accordance with this decision by Communications Division, this tariff will be effective prospectively. Our order on rehearing today moots most of the remainder of the arguments raised in the Application for rehearing, except for the following, which we address below. The Decision did not err in finding that Frontier did not inappropriately attempt to charge Applicant for call restriction service.The rehearing application alleges that the Decision ignored evidence in the record in finding that Frontier was not acting inappropriately when it attempted to charge Applicant for call restriction service. Applicant alleges that Verizon, his previous provider, had offered free call restriction service to him, and that Frontier was now inappropriately attempting to charge him for the same service. (Complaint, pp. 7-10.) The Decision noted that evidence in the record showed that Frontier’s Product Guide charged for such service, and that Verizon’s Product Guide had previously charged for the same. (Decision at 11.) The Commission therefore found Frontier was not acting inappropriately. The rehearing application alleges that in doing so, the Decision ignored evidence showing that Applicant’s older Verizon bills allowed for “free toll blocking.” (Rehrg. App., pp 13-14.) This appears to be an inappropriate attempt to re-litigate the issue. An application for rehearing is not a proper vehicle for re-litigation of the issues or for asking the Commission to reweigh the record evidence. (Rule 16.1 of the Commission Rules of Practice and Procedure, Cal. Code of Regs., tit. 20, §16.1, subd. (c); see also, Pub. Util. Code, § 1732; See, e.g., Order Instituting Rulemaking Regarding the California Renewables Portfolio Standard Program [D.13- 02-037] (2013) at p. 2 (slip op.); Application of Cal-Ore Telephone Company for Rehearing of Resolution T-17133[D.10-06-049] (2010) at p. 3 (slip op.); Application of Pacific Gas and Electric Company for Expedited approval of the Power Purchase Agreement for the Russel City Energy Company Project [D.10-12-064] (2010) at pp. 10-11 (slip op.).) Furthermore, a review of the Decision indicates that the Commission reviewed the Applicant’s Verizon invoices and found them to be unpersuasive. The Decision notes that “There is no evidence from Applicant’s Verizon invoices that the Applicant took call restriction service from Verizon” and also notes that there are numerous other explanations for the Applicant’s previous inability to place non-local calls. (Decision, p. 12.) Although the Decision does not directly address the language cited to in the rehearing application regarding “free toll blocking,” the Decision instead found more compelling the counter evidence presented by Frontier that no such free blocking service existed. (Decision, p. 12.) The Commission weighed the evidence presented by the Applicant, and that presented by Frontier, and found Applicant’s arguments about the provision of free call restriction service (also known as blocking) unpersuasive. The Decision did not commit legal error on this issue and rehearing is therefore denied.The Decision did not err in finding that Frontier did not impose compulsory arbitration on Applicant.The rehearing application alleges that the Decision misstates Applicant’s allegation as to Frontier’s attempt to impose arbitration. In particular, the rehearing application states that the Decision erroneously states that the Applicant believed that Frontier attempted to impose compulsory arbitration of all disputes. (Emphasis in Original) (Rehrg. App., pp. 14-15.) No actual legal error is identified by the rehearing application, and to the extent the Decision misstates Applicant’s belief, it is harmless error, as the Application for Rehearing does not explain how this misstatement prejudiced Applicant. Rehearing on this issue is therefore denied.The rehearing application also alleges that the Commission made no finding as to whether Frontier imposed compulsory arbitration on Applicant, as laid out by Scoping Memo Issue 5. (Rehrg. App., p. 15.) To the contrary, a review of the Decision reveals that it states “[t]here is no finding that Frontier imposed compulsory arbitration on the Applicant.” (Decision, p. 15.) Thus, the Decision declined to adopt an affirmative finding. The Decision also concluded that “Frontier’s arbitration provisions do not compel a customer to submit to arbitration for those complaints that would otherwise be subject to Commission jurisdiction.” (Decision, Conclusion of Law 11. p. 22.) The Decision additionally notes that Applicant did in fact file a complaint with the Commission and was therefore not, in fact, subject to compulsory arbitration. (Decision, p. 15.) The Decision was clear regarding its findings and conclusions on this issue, and therefore the Commission did not commit legal error as alleged by the rehearing application.CONCLUSIONRehearing is granted to order Frontier to re-file its measured rate service tariff to reflect that fact that the $3.00 allowance credit is to be applied to ZUM Zone 3 calls on a prospective basis. Rehearing of D.19-11-007, as modified herein, is denied on all other issues. THEREFORE, IT IS ORDERED that:Within 30 days from the date of issuance of this order Frontier shall file a revised tariff via Tier 2 Advice Letter that states the $3.00 allowance credit for measured rate service is to be applied to Zone Usage Measurement Plan Zone 3 calls.Rehearing of D.19-11-007 is otherwise denied.Proceeding C.18-09-004 is hereby closed.This order is effective today. Dated August 6, 2020, at San Francisco, California. MARYBEL BATJER PresidentLIANE M. RANDOLPHMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFENGENEVIEVE SHIROMA Commissioners ................
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