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Page 1
Not Reported in P.3d, 136 Wash.App. 1022, 2006 WL 3720425 (Wash.App. Div. 1)
(Cite as: 2006 WL 3720425 (Wash.App. Div. 1))
NOTE: UNPUBLISHED OPINION, SEE RCWA
2.06.040
Court of Appeals of Washington,
Division 1.
Sandy JUDD and Tara Herivel, for themselves, and
on behalf of all similarly situated persons, Appellants,
and
Zuraya Wright, Plaintiff,
v.
AMERICAN TELEPHONE AND TELEGRAPH
COMPANY and T-Netix, Inc., Respondents,
and
GTE Northwest Inc.; Centurytel Telephone Utilities, Inc.; Northwest Telecommunications, Inc., d/
b/a PTI Communications, Inc.; U.S. West Communications, Inc., Defendants.
No. 57015-3-I.
Dec. 18, 2006.
UNPUBLISHED OPINION
AGID, J.
*1 Appellants Sandy Judd and Tara Herivel
sued American Telephone and Telegraph Company
( AT & T) and T-Netix claiming they received inmate-initiated collect phone calls from Washington
prisons that lacked the audible rate disclosures required by the Washington Utilities and Transportation Commission (WUTC) in violation of the
Washington Consumer Protection Act (CPA),
chapter 19.86 RCW. The trial court granted the
phone companies' summary judgment motion, finding that Judd and Herivel lacked standing because
they could not show injury attributable to either
phone company. We hold that appellants presented
evidence raising material issues of fact that could
not be resolved on summary judgment and reverse
and remand to the trial court.
Between August 1, 1996, and August 1, 2000,
appellants Sandy Judd and Tara Herivel both received telephone calls from former inmates at four
Washington State prisons. Neither Judd nor Herivel
heard rate information before choosing to accept
these inmate-initiated collect calls. When they received these calls, respondent AT & T had a contract with the Washington Department of Corrections (DOC) to provide telephone service to state
prisons. AT & T subcontracted with other companies, including respondent T-Netix, to provide certain services in connection with these calls.
I. Regulatory Framework
After the break-up of the Bell System in the
1980s, the Legislature enacted statutes to protect
consumers of collect telephone calls. RCW
80.36.520 directs the WUTC to makes rules that:
require, at a minimum, that any telecommunications company, operating as or contracting with
an alternate operator services company, assure
appropriate disclosure to consumers of the provision and the rate, charge or fee of services
provided by an alternate operator services company.
A violation of these WUTC disclosure rules is
a violation of the CPA, resulting in presumed damages equal to the cost of the service provided plus
FN1
two hundred dollars.
FN1. RCW 80.36.530.
In 1991, the WUTC required all alternate operator service companies (AOSCs) to disclose their
FN2
rates for collect calls.
Local exchange companies (LECs), which provide only local and intraLFN3
ATA
long distance (local long distance) service but not interLATA or out-of-state long distance, were excluded from the definition of an AOFN4
SC.
In 1999, the WUTC changed the rules to
FN5
require all operator service providers (OSPs)
to verbally disclose the rates for inmate-initiated
FACTS
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Not Reported in P.3d, 136 Wash.App. 1022, 2006 WL 3720425 (Wash.App. Div. 1)
(Cite as: 2006 WL 3720425 (Wash.App. Div. 1))
FN6
collect calls.
Although the new rules applied to
LECs as well, the WUTC granted time-limited
waivers exempting many LECs from the disclosure
requirement. Consequently, from 1996 to 2000, the
relevant time period in this case, most calls for
which LECs served as OSPs were exempt from the
WUTC disclosure requirements.
FN2. Former WAC 480-120-141(5)(a)(iv)
(1991).
FN3. LATA stands for local access and
transport area. IntraLATA calls are long
distance calls within one LATA. InterLATA calls are long distance calls
between LATAs. WAC 480-120-021
(2006).
FN4. Former WAC 480-120-021 (1991).
FN5. The term OSP replaced AOSC.
Former WAC 480-120-021 (1999).
FN6. Former WAC 480-120-141(2)(b)
(1999).
II. Procedural History
In 2000, appellants filed this lawsuit as a putative class action in King County Superior Court
against five telephone companies, alleging that the
failure to disclose rates on inmate-initiated collect
calls violated the CPA. The trial court dismissed
three of those companies (Qwest, Verizon, and
CenturyTel) because they were LECs exempt from
the disclosure requirements. This court and the
FN7
Washington Supreme Court affirmed.
FN7. Judd v. Am. Tel. & Tel. Co., 116
Wn.App. 761, 66 P.3d 1102 (2003), aff'd,
152 Wn.2d 195, 95 P.3d 337 (2004).
*2 AT & T and T-Netix also moved to dismiss,
but the trial court denied their motions and referred
two questions to the WUTC for determination under the doctrine of primary jurisdiction: (1) whether
AT & T and T-Netix were OSPs, and (2) whether
they had violated WUTC regulations requiring
OSPs to disclose rates for collect calls. The court
stayed further proceedings pending determination
by the agency and retained jurisdiction over matters
outside of the referral.
Respondents moved for summary determination in the WUTC, arguing that appellants lacked
standing. The Administrative Law Judge (ALJ)
denied the motions. She determined that there were
issues of fact precluding summary determination
and ruled that she lacked jurisdiction to decide the
standing issue because it was beyond the superior
court's narrow referral. AT & T and T-Netix filed
an interlocutory appeal in the WUTC and moved
for summary judgment in the superior court, asking
the court to lift the stay. The WUTC affirmed the
ALJ on the jurisdiction ground.
The superior court granted T-Netix's summary
judgment motion. It later clarified that its ruling applied to AT & T as well and rescinded its primary
jurisdiction referral to the WUTC. Judd and Herivel
appeal, seeking remand to the superior court with
directions to remand the case to the WUTC to determine whether respondents were OSPs and
whether they violated the WUTC's regulations.
DISCUSSION
We review a summary judgment order de novo,
making the same inquiry as the trial court and considering all facts and reasonable inferences from
those facts in the light most favorable to the nonFN8
moving party.
Summary judgment is proper
when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter
FN9
of law.
FN8. Suquamish Indian Tribe v. Kitsap
County, 92 Wn.App. 816, 827, 965 P.2d
636 (1998) (citing Mountain Park
Homeowners Ass'n v. Tydings, 125 Wn.2d
337, 341, 883 P.2d 1383 (1994)).
FN9. CR 56(c); City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943
(2006).
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Not Reported in P.3d, 136 Wash.App. 1022, 2006 WL 3720425 (Wash.App. Div. 1)
(Cite as: 2006 WL 3720425 (Wash.App. Div. 1))
To survive summary judgment, appellants must
present sufficient evidence of injury to raise materiFN10
al issues of fact about standing.
To show injury, they must show that they received an inmateinitiated call without an audible pre-connect rate
disclosure in violation of former WAC
480-120-141 and that either AT & T or T-Netix is
FN11
liable for the violation.
Appellants argue they
can do this in two ways: (1) by presenting sufficient
evidence that they received a call in violation of the
WUTC disclosure rule for which AT & T or TNetix was the OSP or (2) by showing that AT & T
or T-Netix could be liable for contracting with nondisclosing OSPs, even if they were not OSPs themselves.
FN10. Suquamish Indian Tribe, 92
Wn.App. at 832 (reversing summary judgment because plaintiffs demonstrated an issue of material fact about whether they
would be injured by defendants proposed
actions).
FN11. RCW 80.36.530; Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins.
Co., 105 Wn.2d 778, 785, 719 P.2d 531
(1986).
I. Call in Violation of WUTC Disclosure Rule for
Which AT & T or T-Netix was the OSP
We hold that Judd and Herivel have presented
one disputed issue of material fact and one mixed
question of fact and law which survive summary
judgment. The factual issue is whether Herivel received an interLATA phone call without rate disclosure in violation of WUTC rules for which either
AT & T or T-Netix was the OSP. The mixed question is whether T-Netix or AT & T is liable under
the CPA for functioning as an OSP for any of the
phone calls Herivel and Judd received. These issues
can be resolved on summary judgment only if
“reasonable minds can reach but one conclusion on
FN12
them.”
FN12. Allen v. State, 118 Wn.2d 753, 760,
826 P.2d 200 (1992).
A. InterLATA Call
*3 Herivel, a Seattle attorney, claims she received an interLATA phone call from Don Miniken
while he was incarcerated at Airway Heights Correction Center, sometime between August 26, 1997
and January 1999. Neither side disputes that a
phone call from the Spokane area to Seattle is an
interLATA phone call and thus was not exempt
from the WUTC disclosure requirements. Because
the LECs did not carry interLATA calls, either AT
& T or T-Netix must have been the OSP. The only
issue on summary judgment is whether Herivel
presented sufficient evidence that the call occurred.
Respondents assert her only evidence is an allegation in the pleadings that is insufficient as a matter
of law.
T-Netix relies on Retail Store Employees Local
631 v. Totem Sales, Inc., in which we affirmed
summary judgment where the plaintiff admitted that
there were “ ‘no facts before the court except the allegations in the pleadings, and the contract between
FN13
the parties.” ’
But Herivel presents more than
mere allegations in the pleadings. She provides her
own and Miniken's declarations that he made the
call sometime between August 26, 1997 and January 1999. Herivel was writing an article about
Miniken's recent suit against the DOC. The summary judgment order in his suit was filed on August
FN14
26, 1997,
and the Washington Free Press
published her article in its January-February 1999
issue. Therefore, the reasonable inference is that the
call occurred between August 1997 and January
1999.
FN13. 20 Wn.App. 278, 281, 579 P.2d
1019 (1978).
FN14. See Miniken v. Walter, 978 F.Supp.
1356 (E.D.Wash.1997).
AT & T relies on Allen v. Washington for its
holding that “factual questions may be decided as a
matter of summary judgment if reasonable minds
FN15
can reach but one conclusion on them.”
Respondents argue that because Herivel has been un-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Not Reported in P.3d, 136 Wash.App. 1022, 2006 WL 3720425 (Wash.App. Div. 1)
(Cite as: 2006 WL 3720425 (Wash.App. Div. 1))
able to produce a record of the phone call from
Miniken, the court should not believe her testimony. In her declaration, Nancy Lee, T-Netix's Director of Billing Services, states that she could not
find a record of any call from Airway Heights to
Herivel between June 1, 1998 and December 31,
1998. But this evidence falls short of proving the
call did not take place both because the search does
not cover the entire relevant time period and, even
if it did, it presumes T-Netix's recordkeeping is infallible.
FN15. 118 Wn.2d 753, 760, 826 P.2d 200
(1992).
This is a classic factual dispute, with each side
producing some evidence to support its position.
We cannot weigh evidence or testimonial credibilFN16
ity.
And we must view the evidence presented in the light most favorable to appellants as the
FN17
nonmoving party.
Because respondents' evidence leaves 10 months unaccounted for and Herivel's affidavits contain more than mere allegations,
we hold that reasonable minds could differ about
whether the call happened. Herivel has presented a
disputed issue of material fact which cannot be resolved on summary judgment.
FN16. No Ka Oi Corp. v. Nat'l 60 Minute
Tune, Inc., 71 Wn.App. 844, 854 n.11, 863
P.2d 79 (1993), review denied, 124 Wn.2d
1002 (1994).
FN17. Suquamish
Wn.App. at 827.
Indian
Tribe,
92
B. OSP Status
Both AT & T and T-Netix assert that they were
not the OSPs for any of the calls Judd and Herivel
received. Both argue that LECs were the OSPs for
the intraLATA calls, and each claims the other
would have been the OSP for the one alleged interLATA call. In response, appellants contend that
their expert's testimony raises issues of material
fact about whether respondents functioned as OSPs.
*4 Both parties' arguments are highly technical
and fact-based and thus not properly resolved on
summary judgment. The original trial court judge,
acknowledging these factual issues required expertise to resolve, referred them to the WUTC under
FN18
the primary jurisdiction doctrine.
Significantly, the ALJ denied summary determination because she found:
FN18. See Vogt v. Seattle-First Nat'l Bank,
117 Wn.2d 541, 554, 817 P.2d 1364 (1991)
(explaining that agencies should be allowed to make initial determinations under
the primary jurisdiction doctrine when an
issue is highly technical, requiring expertise to resolve).
Complainant's affidavits and pleadings raise
questions as to the role of T-Netix and AT & T in
connecting the calls between the correctional institutions and the Complainants. The parties' dueling and numerous affidavits identify several issues of fact concerning AT & T and T-Netix's
network and their involvement in the calls in
question.
The summary determination motion before the
WUTC and the later summary judgment motion
before the superior court both suffer from the
same circular reasoning. Each appears to have
been brought essentially to avoid discovery on
the issue of whether T-Netix and AT & T are
OSPs. But, for summary judgment to be appropriate, a court must decide, without the benefit of
that discovery, that AT & T and T-Netix were
not OSPs as a matter of law.
The superior court was troubled by this and
mentioned its concern at the hearing on the summary judgment motion:
I guess part of my being perplexed is, I have got
a person who purportedly has expertise in this
rather esoteric area [the ALJ], who tells me that
with regard to this particular motion that is now
pending before me she sees material issues of
fact.
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Not Reported in P.3d, 136 Wash.App. 1022, 2006 WL 3720425 (Wash.App. Div. 1)
(Cite as: 2006 WL 3720425 (Wash.App. Div. 1))
....
... [S]houldn't I defer to the expertise of this individual to say, well, if you think there are material issues of fact, and God knows you understand
this esoterica far better than I do, I'm sure,
shouldn't I defer t that?
The superior court's order granting summary
judgment does not disclose why it chose not to be
persuaded by the expertise of the ALJ. But it must
have determined that reasonable minds could only
conclude that AT & T and T-Netix were not the
OSPs for any of the calls appellants received, despite appellants' expert's declaration to the contrary.
But both this court and the trial court must consider
all facts and reasonable inferences from those facts
in the light most favorable to the nonmoving party.
FN19
The trial court erred in granting summary
judgment because to do so it had to ignore both appellant's expert's testimony that AT & T and TNetix could have been the OSPs for the calls in
question and the ALJ's determination that this issue
could not be decided as a matter of law.
FN19. Suquamish
Wn.App. at 827.
Indian
Tribe,
92
II. “Contracting with” Liability Under RCW
80.36.520
Appellants assert that they can establish standing under RCW 80.36.520 for violations of the
CPA not only against OSPs who violate the WUTC
regulations but also against parties who contract
with OSPs that violate the rules. They base this argument on the mandatory language of RCW
80.36.520 requiring the WUTC to promulgate rules
that “require, at a minimum, that any telecommunications company, operating as or contracting with
an alternate operator services company [OSP], assure appropriate disclosure.”
cannot imply one. In Judd I, the court held that “
‘in order for there to be a failure to disclose that is
actionable under the CPA, the failure must violate
FN21
the rules adopted by the WUTC.” ’
It went on
to explain that challenges to an agency's regulation
must be brought under the Administrative Procedure Act, chapter 34.05 RCW, by making the agency
FN22
a party to the proceeding.
Because this appeal
is not the proper proceeding for appellants to challenge the validity of the agency's decision to exclude “contracting with” liability from the regulations, we decline to address the issue.
FN20. For clarity, we refer to Judd, 152
Wn.2d 195 as Judd I.
FN21. 152 Wn.2d at 204 (quoting Judd,
116 Wn.App. at 770).
FN22. Id. at 205.
We reverse and remand this case to the superior court with directions to reinstate the primary jurisdiction referral to the WUTC to determine the issues originally before it: (1) whether AT & T or TNetix were OSPs and (2) whether they violated the
WUTC disclosure regulations.
WE CONCUR: Agid, J., Baker, J., and Coleman, J.
Wash.App. Div. 1,2006.
Judd v. American Tel. & Tel. Co.
Not Reported in P.3d, 136 Wash.App. 1022, 2006
WL 3720425 (Wash.App. Div. 1)
END OF DOCUMENT
*5 AT & T and T-Netix, relying on the SuFN20
preme Court's holding in Judd I,
argue that
because the regulation, former WAC 480-120-141,
does not include a “contracting with” clause, we
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