Harrisburg PA 17105-3265



PENNSYLVANIAPUBLIC UTILITY COMMISSIONHarrisburg PA 17105-3265Public Meeting held November 10, 2011Commissioners Present:Robert F. Powelson, ChairmanJohn F. Coleman, Jr., Vice ChairmanWayne E. GardnerJames H. CawleyPamela A. WitmerPMO III – Directory Listings Tariff (F0016) M-2009-2134347Performance Metrics & Remedies (F0016) M-00011468OPINION AND ORDERBY THE COMMISSION:Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition is the Petition for Reconsideration (Petition), filed by Verizon Pennsylvania Inc. (Verizon PA) on May 4, 2010, regarding the Opinion and Order entered on April 19, 2010 (April 2010 Order), relative to the above-captioned proceedings. On May 14, 2010, the Office of Small Business Advocate (OSBA) filed an Answer to the Petition for Reconsideration (Answer).BackgroundIn 2002, the Commission, inter alia, approved two metrics, GE-5 Directory Listing Verification Reports and GE-6 Timely and Accurate Provisioning of White Page Directory Listings LSRs and DSRs. See Performance Metrics Remedies, Docket No. M00011468 (Order entered December 10, 2002) (PMO II). The Commission also directed the Pennsylvania Carrier Working Group (PA CWG) to recommend a remedy for errors in directory listings in Verizon PA directories that affected customers of competitive local exchange carriers (CLECs).With the consensus of the local exchange carriers (LECs) in the PA CWG, GE5 and GE6 were never implemented due to internal ambiguities regarding their submetrics as well as the administrative burden and expense of making the metrics work as drafted. Beginning in 2003, and in conjunction with its attempt to revise GE-5 and GE-6, the PA CWG has worked to develop a directory remedy plan that would operate outside the PA Performance Assurance Plan (PA PAP). The LECs in the PA CWG have concluded that GE-5 and GE-6 cannot work and that it is appropriate to address directory errors affecting CLECs’ customers outside of the metrics and remedies process. That consensus is reflected in the proposed Verizon PA’s Other Telephone Company Customer Listing Error Remedy Plan (Plan), a proposed tariff filing that would implement the Plan, and proposed changes (F0016 changes) to the Pennsylvania Carrier-to-Carrier Guidelines (PA Guidelines).The Plan applies to the following Verizon PA-provided directory listings and listing services: (1) White Pages CLEC’s customer listings (including listings for which no specific charge applies and listings for which a specific charge applies); (2) the “free” customer listing for a CLEC’s business customers in a Verizon PA Yellow Pages (classified) telephone directory; and (3) non-published and non-listed telephone number service. Verizon PA’s Tariff-Pa. P.U.C. No. 216, Section 2A, B.1.a. The Plan does not apply to listings provided by Verizon PA, such as the following: (1) customer listings associated with resold services; (2) customer listings associated with Verizon Wholesale Advantage Service (Verizon’s UNE-P replacement service) or any comparable successor service; (3) customer listings associated with telecommunications service provided by a CLEC as an incumbent LEC; (4) customer listings pursuant to an agreement that excludes application of the Plan; (5) customer listings for which the CLEC’s customer has made a claim against Verizon PA and/or the directory publisher or printer; and (6)?customer listings that the CLEC arranges directly with the directory publisher or printer for publication of the CLEC’s customer listings. Verizon PA’s Tariff-Pa. P.U.C.No. 216, Section 2A, B.1.c.The Plan provides compensation for the following types of directory listing errors when the errors are attributable to Verizon PA: (1) omission from a printed Verizon PA telephone directory of a CLEC’s customer listing that the CLEC requested be included in the directory; (2) publication in a printed Verizon PA telephone directory of a CLEC’s customer listing that the CLEC requested be excluded from the directory; and (3) publication in a printed Verizon PA telephone directory of a CLEC’s customer name, address, or telephone number that differs from the name, address, or telephone number that the CLEC requested Verizon PA to publish in the directory. Verizon PA’s Tariff Pa. P.U.C.-No. 216, Section 2A, A.1.b.Under the Plan, when Verizon PA receives notice from a CLEC of a directory error allegedly attributable to it, it has sixty days to respond regarding whether it will provide credit to the CLEC. If Verizon PA agrees that a credit is owed, it will apply a credit to a CLEC bill within forty-five days of a notice that a credit would be provided. Verizon PA’s Tariff-Pa. P.U.C.No. 216, Section 2A, B.3.d. Verizon PA credits a CLEC’s bill for the amount the CLEC has credited its own customer as a result of a Verizon PA-caused error in the CLEC’s customer listing in a Verizon telephone directory, up to the maximum amount stated in the tariff. Verizon PA also provides to the CLEC an administrative bill credit equal to an additional twenty-five percent of the credit that Verizon PA reimburses to the CLEC for payments by the CLEC to its customer.History of the ProceedingOn October, 1, 2009, Verizon PA filed a Petition seeking approval of the proposed Plan, the tariff revisions, and the F0016 changes. Notice of the opportunity to file comments and reply comments in response to Verizon PA’s proposal was provided to all members of the PA?CWG and posted on the Commission’s website. On October 28, 2009, Verizon PA and the OSBA filed Comments. Verizon PA filed Reply Comments on November 19, 2009. Verizon PA supported its Petition in its Comments. It requested the Commission to approve the Plan, to approve the associated tariff revisions, and to delete from the PA Guidelines the Metrics GE-5 and GE-6 as they have never been implemented and will not be needed when the Plan becomes effective. In its Comments, the OSBA stated that it did not oppose the proposed Plan but believed that some non-financial remedies should also be imposed for directory listing errors that affect CLECs’ customers. The OSBA suggested that, in addition to approving the Plan, a minimum of eighteen?months of data should be collected pursuant to the directory listing metrics. The OSBA averred that such data would assist the Commission and the parties in ascertaining whether the financial remedies are working or whether further non-financial remedies are necessary. OSBA’s Comments at 3. In its Reply Comments, Verizon PA stated that it would collect directory listing performance data (DL Performance Data) for an eighteen-month period after the Plan becomes effective and would report to the PA CWG the total number of CLEC customer directory listing error reimbursement claims submitted by CLECs to Verizon PA under the Plan for which Verizon PA has provided credits to CLECs. Verizon PA suggested that the PA CWG review the eighteen months of data prior to finalizing any non-financial remedies. Verizon PA’s Reply Comments at 2. In the April 2010 Order, the Commission approved the proposed Plan, the proposed tariff, and the proposed F0016 changes. The Commission also identified the following three issues that were not fully resolved in the Plan: (1) the content and timing of the DL Performance Data; (2) governmental listing errors in the Blue Pages; and (3) errors in audible and electronic databases and Directory Assistance. The Commission proposed resolutions to these issues and stated that the PA CWG could further discuss these issues and reach a consensus on them if the Commission’s proposed resolutions were not consistent with the PA CWG’s consensus. On May 4, 2010, Verizon PA filed its compliance tariff implementing the Plan. The tariff did not address the three issues, above, which the Commission identified as not being fully resolved in the Plan. As previously stated, Verizon PA filed the instant Petition for Reconsideration on May 4, 2010. The OSBA filed an Answer to the Petition for Reconsideration on May 14, 2010.DiscussionLegal Standards We note that any issue that we do not specifically address herein has been duly considered and will be denied without further discussion. It is well settled that we are not required to consider expressly or at length each contention or argument raised by the parties. Consolidated Rail Corporation v. Pa. PUC, 625 A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvania?v. Pa. PUC, 485 A.2d 1217 (Pa.?Cmwlth. 1984). The Code establishes a party’s right to seek relief following the issuance of our final decisions pursuant to Subsections?703(f) and?(g), 66?Pa. C.S. §?703(f) and §?703(g), relating to rehearings, as well as the rescission and amendment of orders. Such requests for relief must be consistent with Section?5.572 of our regulations, 52?Pa.?Code §?5.572, relating to petitions for relief following the issuance of a final decision. The standards for granting a Petition for Reconsideration were set forth in Duick?v. Pennsylvania Gas and Water Company, 56?Pa. P.U.C.?553 (1982):A Petition for Reconsideration, under the provisions of 66?Pa.?C.S. §?703(g), may properly raise any matters designed to convince the Commission that it should exercise its discretion under this code to rescind or amend a prior order in whole or in part. In this regard we agree with the court in the Pennsylvania Railroad Company case, wherein it was stated that: Parties . . . cannot be permitted by a second motion to review and reconsider, to raise the same questions which were specifically decided against them . . . what we expect to see raised in petitions for reconsideration are new and novel arguments, not previously heard or considerations which appear to have been overlooked by the Commission. Additionally, a Petition for Reconsideration is properly before the Commission where it pleads newly discovered evidence, alleges errors of law, or a change in circumstances. Under the standards of Duick, a petition for reconsideration may properly raise any matter designed to convince this Commission that we should exercise our discretion to amend or rescind a prior Order, in whole or in part. Such petitions are likely to succeed only when they raise “new and novel arguments” not previously heard or considerations which appear to have been overlooked or not addressed by the Commission. Duick at?559. B.April 2010 OrderIn the April 2010 Order, we stated that the proposed Plan represented the consensus recommendation of the PA CWG, as the PA CWG and other entities had adequate notice and opportunity to review the proposed Plan and tariff, to discuss the matter in the PA CWG, and to file written comments. We approved the Plan, subject to several concerns, approved the tariff which implements the Plan, and approved the elimination of GE-5 and GE-6. We directed Verizon PA to implement the Plan within twenty days of the entry of the April 2010 Order and to file the compliance tariff within fifteen days after the entry of the April 2010 Order. April 2010 Order at 8, 9, 13, 15.With respect to the Verizon PA’s proposal to collect DL Performance Data, we concluded that it was essential for Verizon PA to collect and provide the following information: The number of errors reported, The number of claims with line counts,The number of payments with line counts,The reasons for rejections with line counts,The number of listings for CLECs with line counts,The number of errors reports for retail customers,The number of listings for retail customers,The directories in which an error is reported, andWhat steps if any have been taken to avoid such errors in the future.April 2010 Order at 9. We stated that this list could be modified by the consensus of the PA CWG and that discussions about DL Performance Data reporting shall not delay the implementation of the proposed Plan and tariff. Moreover, we directed Verizon PA to provide the DL Performance Data to the PA CWG on an ongoing basis as opposed to on an accumulated basis over eighteen months. We indicated that the PA CWG should review the data and report to the Commission if further action was warranted. Id. at 10. We also addressed some additional matters. We stated that the proposed Plan and proposed tariff should be clarified to include a provision for government listings in Blue Pages within the scope of the Plan because it appeared to be a scrivener’s error that the tariff language addressing the scope of the Plan only referred to White Pages and business listings in the Yellow Pages. Id. at 11. We also noted that the proposed Plan and tariff were silent on errors in listings obtainable from an operator and how such errors may affect CLECs’ customers. We stated that, in our opinion, the amount payable under the Plan for a print directory error should be the amount to be prorated for the period during which a mistake continues in a Directory Assistance listing or audible or electronic listing. We directed the PA CWG to address that issue and submit a proposed recommendation for resolution. Id. at?12.C.Positions of the Parties In its Petition, Verizon PA states that, because the April 2010 Order approved the proposed tariff, the F0016 changes, and the Plan, it is not seeking a stay of the implementation of the Plan, and it has filed the tariff changes as directed and is making the approved F0016 changes. Nevertheless, it avers that it takes issue with the portions of the Order that it believes altered the Plan by requiring additional actions and mandating certain outcomes in the PA CWG. Verizon PA states that the Commission should reconsider its April 2010 Order and omit the three modifications to the Plan for several reasons. First, Verizon PA asserts that its Petition satisfies the Duick standards because the issues for which it is seeking reconsideration were raised by the Commission for the first time in the April 2010 Order without prior notice to Verizon PA or any input from the Parties. Verizon PA believes that reconsideration is necessary to ensure that it has not been deprived of its due process protections. Petition at 5. It states that if it had been given an opportunity to discuss the three issues with the PA CWG or to comment on these modifications in advance, it would have been able to point out material factors that should have been considered, and the PA CWG may not have pursued these issues at all. Id. at 6. Verizon PA also avers that, if the April 2010 Order is permitted to stand unmodified, this will have a chilling effect on the future functioning of the PA CWG, because carriers will not be as willing to negotiate a consensus compromise on significant industry issues if they believe the Commission can materially change the consensus proposal in an Order without prior notice. Id. at 7. Additionally, Verizon PA states that the Commission should reconsider and reject the three modifications to the Plan. Specifically, it states that the Commission should reconsider the extensive level and frequency of data reporting required in the April 2010 Order because such reporting will be burdensome, time-consuming, and costly. Petition at 8. Verizon PA also avers that the carriers in the PA CWG have not demonstrated that they want reporting regarding retail errors or that they will devote the resources necessary to review the data every other month or that there are any benefits what outweigh the costs and burdens associated with this reporting. It avers that it does not have the capacity to gather and report some of the data required, such as retail errors and the number of CLEC listings with line counts because it does not track such data in the form requested. Further, Verizon PA states that the Commission cannot expand its reporting obligations without Verizon PA’s consent, and the Commission’s authority to require additional reporting beyond the reports enumerated in Section 3015(e) of the Code, 66 Pa.C.S. § 3015(e), is strictly limited pursuant to Section 3015(f)(1) of the Code, 66 Pa. C.S. § 3015(f)(1). Verizon PA believes that the Commission should leave it to the PA CWG to discuss what, if any, data it wishes to see beyond what Verizon PA has offered to provide. Id. at 9.Verizon PA also asserts that the Commission should reconsider its requirement to alter the Plan to address errors in Blue Pages because the language of the Plan and tariff were extensively negotiated and reviewed and none of the CLECs raised any issues regarding the need to address Blue Pages errors. Moreover, it avers that the Commission should reconsider its requirement that the PA CWG submit a proposed remedy plan for errors in operator listings. Petition at 10. Verizon PA does not recall any party in the PA CWG raising any issues regarding audible directory listings or a need for a remedies plan. According to Verizon PA, there is no need for such a plan because an error in an operator listing can be promptly detected and corrected and, as such, will cause little or no harm to a CLEC customer. Id. at 11.In its Answer, the OSBA states that the reporting the Commission has ordered would be useful to the OSBA for determining whether non-financial remedies should be implemented. It also states that the issues involving Verizon PA’s reporting obligations should not be indefinitely before the PA CWG, particularly because it has taken Verizon PA six years to make its financial remedies filing. It believes that, if the Commission sends these issues back to the PA CWG, then the Commission should set a fixed date for a response from the PA CWG to ensure that these issues are not stalled in the PA CWG and to allow the Parties to place their positions on the record. Answer at 4.D.Disposition Based on our review of the Petition, the Answer thereto, and the applicable law, we agree with Verizon PA’s request to reconsider the level and frequency of data reporting set forth in the April 2010 Order. This issue is before us because the PA CWG has not reached a consensus on this issue. Verizon PA previously agreed to collect DL Performance Data for an eighteen-month period after the Plan became effective and to report to the PA CWG the total number of CLEC customer directory listing error reimbursement claims submitted by CLECs to Verizon PA under the Plan for which Verizon PA had provided credits to CLECs. Verizon PA’s Reply Comments at 2. The OSBA also stated that eighteen months of data should be collected, consistent with the Commission’s Order, Re: Performance Measures Remedies, Docket No. M-00011468 (Tentative Order entered June 24, 2002), at 50, which also contemplated eighteen months of data. OSBA’s Comments at 2, 3. We believe that the eighteen months of data which Verizon PA has agreed to provide will provide sufficient information to enable the PA CWG to consider and determine whether non-financial remedies should be imposed for directory listing errors that affect CLECs’ customers. We do not find it necessary for Verizon PA to provide the data on a more frequent basis or in a more detailed manner as set forth in the April 2010 Order, given the expense and time that may be involved for Verizon PA to prepare such data and for the PA CWG to analyze such data. Accordingly, we shall direct Verizon PA to provide to the PA CWG, within sixty days from the entry date of this Opinion and Order, data consisting of the total number of CLEC customer directory listing error reimbursement claims submitted by CLECs to Verizon PA under the Plan for which Verizon PA has provided credits to CLECs. This data shall cover an eighteen-month period, from April 19, 2010, the date on which we approved the Plan, through October, 2011. Verizon PA also requested that we reconsider the portions of the April 2010 Order which required that the Plan be modified to address errors in Blue Pages and that the PA CWG submit a proposed remedy plan for errors in operator listings. We note that both of these issues have since been addressed by the PA CWG. The PA CWG reached a consensus that, as a matter of administrative practice, Verizon PA will interpret its tariff so that references in the Plan to CLEC customer White Pages listings will be deemed to include CLEC customer Blue Pages listings. Additionally, the PA CWG reached a consensus that it is not necessary to consider a remedy plan for errors in operator listings at this point in time. As a result, Verizon PA’s request for reconsideration of these two issues is moot.Conclusion Based on our review of the Petition, the answer thereto, and the applicable law, we shall grant the Petition. Moreover, we shall direct Verizon PA to provide to the PA CWG, within sixty days from the entry date of this Opinion and Order, data consisting of the total number of CLEC customer directory listing error reimbursement claims submitted by CLECs to Verizon PA under the Plan for which Verizon PA has provided credits to CLECs. This data shall cover an eighteen-month period, from April?19, 2010, the date on which we approved the Plan, through October, 2011; THEREFORE, IT IS ORDERED:1.That the Petition for Reconsideration, filed by Verizon Pennsylvania Inc. on May 4, 2010, is granted, consistent with this Opinion and Order. 2.That, within sixty (60) days of the entry of this Opinion and Order, Verizon Pennsylvania Inc. shall provide to the Pennsylvania Carrier Working Group data consisting of the total number of CLEC customer directory listing error reimbursement claims submitted by CLECs to Verizon PA under the Plan for which Verizon PA has provided credits to CLECs. This data shall cover an eighteen-month period, from April?19, 2010, the date on which we approved Verizon PA’s Other Telephone Company Customer Listing Error Remedy Plan, through October, 2011. 29241756604000BY THE COMMISSION,Rosemary ChiavettaSecretary(SEAL)ORDER ADOPTED: November 10, 2011 ORDER ENTERED: NOVEMBER 10, 2011 ................
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