Prison Phone Justice

66 P.3d 1102
116 Wash.App. 761, 66 P.3d 1102
(Cite as: 116 Wash.App. 761, 66 P.3d 1102)

Court of Appeals of Washington,
Division 1.
Sandy JUDD, Tara Herivel, and Zuraya Wright, for
themselves, and on behalf of all similarly situated
persons, Appellants,
v.
AMERICAN TELEPHONE AND TELEGRAPH
COMPANY; Defendant,
GTE Northwest, Inc.; Centurytel Telephone Utilities, Inc.; Northwest Telecommunications, Inc., d/
b/a PTI Communications, Inc.; U.S. West Communications, Inc.; Respondents,
T-Netix, Inc., Defendant.
No. 48075-8-I.
April 14, 2003.
Phone call recipients brought action against
telecommunications providers seeking injunctive
relief and damages based on alleged nondisclosure
of telephone rates to those accepting long distance
collect calls placed by inmates housed in state correctional facilities. The Superior Court, King
County, Kathleen Learned, J., granted one provider's motion for summary judgment and dismissed the other claims with prejudice. Recipients
appealed. The Court of Appeals, Grosse, J., held
that: (1) statute which directed Utilities and Transportation Commission to establish rules regarding
appropriate disclosure of rates did not provide independent basis, absent any reference to Commission
or its regulations, for recipients' claims, and (2) Administrative Procedure Act was sole means to challenge validity of regulations.
Affirmed.
Appelwick, J., dissented with opinion.
West Headnotes
[1] Telecommunications 372

926

Page 1

372 Telecommunications
372III Telephones
372III(G) Rates and Charges
372k926 k. Regulation of Rates in General. Most Cited Cases
(Formerly 372k323)
Statute which directed Washington Utilities
and Transportation Commission (“WUTC”) to establish rules to require the appropriate disclosure of
rates of certain phone service providers did not
provide independent basis, absent any reference to
WUTC or its regulations, for phone call recipients'
direct claims against telephone companies for their
failure to make contemporaneous rate disclosures
required by regulations, as regulations, rather than
statute, require companies to make contemporaneous disclosures. West's RCWA 80.36.520.
[2] Statutes 361

210

361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k204 Statute as a Whole, and Intrinsic
Aids to Construction
361k210 k. Preamble and Recitals.
Most Cited Cases
Statutory policy statements do not give rise to
enforceable rights in and of themselves; it is the
statutory sections that follow the policy statement
that provide the enforceability of certain rights.
[3] Telecommunications 372

950

372 Telecommunications
372III Telephones
372III(G) Rates and Charges
372k946 Particular Types of Service
372k950 k. Long Distance or Interexchange. Most Cited Cases
(Formerly 372k323)
In order for there to be a failure to disclose
rates charged for collect telephone calls that is actionable under the Consumer Protection Act (CPA),

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66 P.3d 1102
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the failure must violate the rules adopted by the
Washington Utilities and Transportation Commission (WUTC) pursuant to the alternate operator services disclosure statute. West's RCWA 19.86.010 et
seq., 80.36.520.
[4] Telecommunications 372

962

372 Telecommunications
372III Telephones
372III(G) Rates and Charges
372k960 Evidence as to Rates
372k962 k. Presumptions and Burden
of Proof. Most Cited Cases
(Formerly 372k328.1)
Once a tariff has been properly filed with and
accepted by the Washington Utilities and Transportation Commission (WUTC) by a telephone
company, a consumer is conclusively presumed to
know the tariff's contents. West's RCWA 80.36.100
.
[5] Telecommunications 372

967

372 Telecommunications
372III Telephones
372III(G) Rates and Charges
372k966 Administrative Procedure
372k967 k. In General. Most Cited
Cases
(Formerly 372k323)
Administrative Procedure Act was sole means
for recipients of collect telephone calls from state
prisons to challenge validity of Washington Utilities and Transportation Commission (WUTC) regulations which removed local exchange companies
from alternate operator services disclosure regulations, despite recipients' allegation that their claims
were exempt from Act under “money damages
only” exception; claims sought injunction, claims
sought damages outside of mere compensation for
injury, and recipients did not bring WUTC into the
suit. West's RCWA 34.05.510; 80.36.520.
[6] Administrative Law and Procedure 15A
657.1

Page 2

15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(A) In General
15Ak657 Nature and Form of Remedy
15Ak657.1 k. In General. Most Cited
Cases
The Administrative Procedure Act is the exclusive means of judicial review of agency action
and governs challenges to the validity of agency
regulation. West's RCWA 34.05.510.
[7] Administrative Law and Procedure 15A
391
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak390 Validity
15Ak391 k. Determination of Validity;
Presumptions. Most Cited Cases
When the Legislature specifically delegates to
an administrative agency the power to make the
rules, there is a presumption that such rules are valid.
[8] Telecommunications 372

947

372 Telecommunications
372III Telephones
372III(G) Rates and Charges
372k946 Particular Types of Service
372k947 k. In General. Most Cited
Cases
(Formerly 372k323)
Telephone company never provided long distance telephone or long distance operator services
with respect to prison inmates, but rather was limited to providing local telephone service, and thus
could not be liable in phone call recipients's action
against telecommunications providers for alleged
nondisclosure of telephone rates to those accepting
long distance collect calls placed by inmates housed
in state correctional facilities.

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**1103 *762 Chris Robert Youtz & Jonathon P.
Meier, Marie Gryphon, Seattle, WA, for Appellants.
Timothy J. O'Connel & Kendall J. Fisher, Kelly
Twiss Noonan, Carol S. Arnold, Robert B. Mitchell
& Athan E. Tramountanas, *763 Julia Parson
Clarke, Kathleen M. O'Sullivan, Teresa W.
Gillespie, Kirkland, Donald H. Mullins, Seattle,
WA, for Respondents.
GROSSE, J.
The Legislature created a statutory scheme for
the regulation of alternate operator service companies. It included a cause of action against providers
of telecommunications services for violation of the
Consumer Protection Act to assure appropriate disclosure of telephone rates. However, the Legislature did so only for violations of the regulations
promulgated by the Washington Utilities and Transportation Commission. Further, the Legislature
preempted any direct action against the phone companies. The decision of the trial court is affirmed.
**1104 FACTS
Sandy Judd, Tara Herivel, and Zuraya Wright,
hereafter collectively referred to as Judd, brought
an action against five telecommunications providers
seeking injunctive relief and damages, including
damages for violation of Washington's Consumer
FN1
Protection Act (CPA).
The suit is based on the
alleged nondisclosure of telephone rates to those
accepting long distance collect calls placed by inmates housed in Washington State correctional facilities. Sandy Judd and Tara Herivel received and
paid for intrastate long distance collect calls from
prison inmates in Washington State. Zuraya Wright
received and paid for interstate long distance collect calls from a Washington State prison inmate.
FN2
FN1. RCW 19.86 et seq.
FN2. The case was brought, but never certified, as a class action for those persons

Page 3

who have been called by inmates at any
time since June 20, 1996.
*764 As argued by Judd, the appeal primarily
involves a question of whether the phone companies assured the sufficient and appropriate disclosure
of rates charged to consumers for services provided
while connecting both intrastate and interstate long
distance calls from the correctional facilities. We
note, as did the trial court, that in doing so, Judd
challenges the legitimacy of the Washington Utilities and Transportation Commission (WUTC) regulations, without resorting to the Administrative ProFN3
cedure Act
or making the WUTC a party to the
action.
FN3. Chapter 34.05 RCW.
The respondents are three of the five telephone
companies sued. U.S. West Communications, Inc.
(now Qwest Corporation, hereinafter Qwest); GTE
Northwest, Inc. (now Verizon Northwest, Inc.,
hereinafter Verizon); and CenturyTel Telephone
Utilities, Inc. and Northwest Telecommunications,
Inc. d/b/a PTI Communications, Inc. (now both
known as CenturyTel Telephone Utilities, Inc.,
hereinafter CenturyTel), collectively called the
phone companies or by their current monikers.
Judd's amended complaint alleges that the
phone companies failed to make the rate disclosures
required under the alternate operator services disclosure statute, RCW 80.36.520. In that statute, the
Legislature directed the WUTC to establish rules to
require the “appropriate disclosure” of rates of certain phone service providers. The statute provides:
The utilities and transportation commission
shall by rule 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.

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66 P.3d 1102
116 Wash.App. 761, 66 P.3d 1102
(Cite as: 116 Wash.App. 761, 66 P.3d 1102)

For purposes of this chapter, “alternate operator services company” means a person providing a
connection to intrastate or interstate long-distance services from places including, but not limited to, hotels, motels, hospitals, and customerowned pay telephones.
*765 Judd asserts the phone companies violated the CPA by not making the required disclosures. Judd sought damages under RCW 80.36.530
FN4
and also sought injunctive relief. The complaint does not allege that phone company rates
were excessive; that there was an incorrect method
of calculation of the rates; or that the phone companies and/or the Department of Corrections conFN5
spired to obtain unreasonable profits.
Further,
Judd does not name the WUTC as a defendant, assert any claims against it, or demand or seek action
by it. This, despite Judd's argument that the WUTC
exceeded its authority in promulgating its rules or
in exempting the phone companies (as local exchange companies) from the disclosure regulations,
or by later granting limited and temporary waivers
**1105 to the phone companies regarding certain
disclosure requirements.
FN4. RCW 80.36.530 provides that violations of alternate operator services rules
are violations of the CPA. The statute is set
forth later in this opinion.
FN5. Any allegations concerning excessive
rates and profits were raised for the first
time on appeal (Opening Brief of Appellants at 6 n. 1), are inconsistent with Judd's
position below, and will not be considered
by this court on appeal. See Bravo v.
Dolsen Cos. 125 Wash.2d 745, 750, 888
P.2d 147 (1995).
Verizon was the first of the telephone companies to respond to the complaint by filing a motion to
dismiss pursuant to CR 12(b)(6), arguing that Judd
failed to state a claim upon which relief could be
FN6
granted.
On October 13, 2000, after a hearing,
the trial court issued a “Partial Decision on Sum-

Page 4

mary Judgment and Order for Further Briefing,”
providing in part:
FN6. Verizon's argument was based on the
fact that RCW 80.36.520 did not impose
any direct obligation on it, but directed the
WUTC to promulgate regulations. Even if
Verizon had a direct duty under the statute,
Verizon argued it did not violate the
WUTC regulations regarding “appropriate
disclosure” because it was exempted from
them before the 1999 amended regulations
as a local exchange company, or was properly granted a waiver regarding the requirements. Further, Verizon correctly asserted that Judd's claims were subject to
primary jurisdiction of the WUTC.
[R]eading the statute as a whole, the legislature
intended to create a cause of action under the
Washington Consumer Protection Act (“CPA”)
only for violations of the regulations promulgated
by the Washington Utilities and Transportation
*766 Commission (“WUTC”) and did not create
a cause of action for actions beyond or outside of
the regulations.
The court held that Judd did not raise such violations but instead attacked the validity and sufficiency of the WUTC regulations, exclusions, and
waivers. For this reason, the court held that the
telephone companies were all entitled to dismissal from the action unless Judd alleged the
telephone companies violated WUTC regulations.
The court deferred entry of any orders of dismissal for 10 days to allow Judd to file supplemental briefing asserting violations of WUTC
regulations. After the response deadline, the court
indicated it would entertain motions to dismiss,
or stay the case and refer it to the WUTC under
the doctrine of primary jurisdiction for a determination of whether a violation occurred.
Supplemental briefing was provided but it included no allegations of violations of WUTC regulation. Thereafter the lower court dismissed Judd's
claims against the telephone companies with preju-

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dice on multiple grounds. First, the court concluded
that the alternate operator services disclosure statutes (RCW 80.36.510, .520, .524, and .530) and the
WUTC regulations created thereunder set forth a
cause of action under the CPA only for violations
of the regulations promulgated in response to the
statutes. Second, under WUTC regulations the telephone companies' status as local exchange companies was either exempted from compliance under the
regulations or, under later amended regulations that
no longer provided exemptions for local exchange
companies, Verizon and Qwest properly obtained
waivers temporarily exempting them from certain
specific disclosure requirements. The trial court determined that the case was not the proper proceeding for Judd to challenge the WUTC's regulations
or actions as being beyond the scope of the
agency's authority. The trial court determined that
such a challenge is appropriate only in a proceeding
under the Washington Administrative Procedure
Act, citing RCW 34.05.510.
*767 Additionally, as to CenturyTel only, the
trial court took judicial notice of the fact that CenturyTel was deleted from the prison telephone providers contract in February 1997, and in any event
had never provided long distance services to the
correctional facilities, only local service. The court
based its ruling in part on this fact when it entered
judgment in favor of CenturyTel.

Page 5

and in the later grant of **1106 waivers to Qwest
and Verizon. Finally, Judd asserts that the court
should not have partially based its decision on the
determination that CenturyTel never provided long
distance service.
DISCUSSION
In 1988, after the breakup of the Bell system,
the Legislature enacted the first component of the
alternative operator services disclosure statutes.
The legislation was prompted by a growing number
of non-regulated companies that were popping up
to provide telecommunication services necessary to
long distance service “without disclosing the serFN7
vices provided or the rate, charge or fee.”
Prior to the 1988 enactment these “new” telephone
companies were unregistered with and unregulated
by the WUTC. Unlike these new companies, the
WUTC possessed the power to *768 regulate local
exchange companies, like the respondent telephone
companies here. See RCW 80.36.080, RCW
80.36.140.
FN7. RCW 80.36.510.

The telephone companies moved for entry of
judgments pursuant to CR 54(b) on grounds there
was no just reason for delay. Seeking an immediate
appeal, Judd did not object to entry of final judgments. Thereafter the trial court entered final judgments.

In 1989, in response to the Legislature's mandate, the WUTC promulgated WAC 480-120-141.
This rule imposed limited disclosure requirements
on alternate operator services companies, but did
not include the full contemporaneous disclosure of
rates. The rule was amended in 1991. This amended
rule clarified the term “alternate operator services
company” by excluding local exchange companies
from the definition. Former WAC 480-120-141
(1991). The WUTC explained the exclusion of local
exchange companies from the requirements as follows:

Judd appeals the decisions of the trial court.
She asserts that a claim was stated under the CPA
for violations of the disclosure statutes; that she is
entitled to challenge the validity of the WUTC regulations through this action; that the WUTC exceeded its authority in exempting local exchange
companies from the statutory definition of alternate
operator services companies in the 1991 regulation,

Unlike LECs [local exchange companies], AOS
[alternate operator services] companies can be
seen as entering and [exiting] markets at will.
AOS companies were the subject of specific legislative enactment. AOS companies often charge
higher rates than LECs, leading to consumer
complaints. Consumers often expect that they are
using their LEC when they use a pay phone; re-

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Page 6

quirements that apply to non-LEC companies to
inform the consumer that it is not the LEC are
reasonable.
Washington
106-07 (1991).

State

Register

91-13-078,

at

In 1988, as revised in 1990, the Legislature enacted RCW 80.36.530, which provides:
In addition to the penalties provided in this
title, a violation of RCW 80.36.510, 80.36.520,
or 80.36.524 constitutes an unfair or deceptive
act in trade or commerce in violation of chapter
19.86 RCW, the consumer protection act.... It
shall be presumed that damages to the consumer
are equal to the cost of the service provided plus
two hundred dollars. Additional damages must be
proved.
In 1991, the WUTC imposed a limit on the
maximum rate to consumers for providing alternate
operator services by specific reference to the rates
charged by Qwest and American Telephone and
Telegraph Company ( AT & T). Former WAC
480-120-141(11) (Supp.1991). The WUTC also indicated that disclosure was required by the alternate
operator services companies “upon request.” See
former WAC 480-120-141(5)(iii)(a) (1991).
*769 In 1999, following changes in guidelines
and rules of the Federal Communications Commission, the WUTC modified the disclosure requirements. The modified rules required:
Before an operator-assisted call from an aggregator location may be connected by a presubscribed OSP [operator service provider], the OSP
must verbally advise the consumer how to receive a rate quote, such as by pressing a specific
key or keys, but no more than two keys, or by
staying on the line.... This rule applies to all calls
from pay phones or other aggregator locations,
including prison phones, and store-and-forward
pay phones or “smart” telephones.
Former WAC 480-120-141(2)(b) (1999). These

revisions made disclosure requirements applicable
to local exchange companies. The 1999 revised
rules imposed more stringent disclosure requirements. But the revision of the regulations also allowed for potential waivers by the WUTC. Verizon
and Qwest filed timely waiver petitions with the
**1107 WUTC alleging, among other things, that
the technology to access the information required
by the more stringent disclosure requirements had
FN8
not been perfected.
FN8. In addition the waiver petitions or
amended waiver petitions specifically requested a permanent waiver of that portion
of the rule requiring automatic rate disclosure from the party originating the collect
call, when that call originates from an inmate phone at a correctional facility. This
was requested based on concerns that inmate access to live operators could result
in fraud and harassment. The limited duration permanent waivers were granted on
the condition that the telephone companies
have technology in place no later than the
last quarter of 2000 to allow recipients of
inmate initiated collect calls to access rate
information.
[1] Judd argues that RCW 80.36.520 provides
an independent basis, without any reference to the
WUTC or its regulations, for her direct claim
against the telephone companies for their failure to
make the disclosures. We cannot accept this claim.
[2] RCW 80.36.510, entitled “Legislative finding,” indicates its concern regarding the proliferation of the alternate operator services companies
since the breakup of the Bell system, and the rates
those companies were charging. The Legislature
found that the provision of these services without
disclosure to consumers was a deceptive trade practice. *770 This statute provides an introduction to
legislative policy, and statutory policy statements
do not give rise to enforceable rights in and of
FN9
themselves.
It is the statutory sections that follow the policy statement that provide the enforceab-

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66 P.3d 1102
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ility of certain rights. As the Final Bill Report of
FN10
Senate Bill 6745
provides:
FN9. In re Welfare of J.H., 75 Wash.App.
887, 891, 880 P.2d 1030 (1994).
FN10. Effective June 9, 1988.
The Utilities and Transportation Commission is
to require that the provision and the charge, fee,
or rate of alternate operator services are disclosed
appropriately to consumers. Failure to disclose
constitutes a violation of the Consumer Protection Act.
The language of RCW 80.36.520 does not specifically require that telephone companies make
contemporaneous disclosures. A plain reading of
the statute indicates that the legislative requirement
directed the WUTC to assure “appropriate disclosure” to consumers through promulgation of rules. It
is within the purview of the WUTC to direct how,
when, or to whom the disclosure is made. Further,
RCW 80.36.524 sets forth that the WUTC may adopt rules providing for the minimum service levels
for telecommunications companies providing alternate operator services.
[3][4] In the statutory scheme, RCW 80.36.530
sets forth that in addition to the penalties provided
in the act, a violation of RCW 80.36.510, .520, and
.524 constitutes violation of the CPA. We agree
with the trial court that when these statutes are read
together, in order for there to be a failure to disclose that is actionable under the CPA, the failure
must violate the rules adopted by the WUTC. The
trial court's interpretation achieves the legislative
goal of creating a CPA cause of action for failure to
disclose long distance alternate operator services
rates consistent with the legislative finding of RCW
80.36.510. This interpretation properly places responsibility on the WUTC to promulgate rules requiring “appropriate disclosure” and “minimum
*771 service levels” in accordance with RCW
FN11
80.36.520 and .524.

Page 7

FN11. Additionally, Judd's argument does
not take into consideration that the respondent telephone companies were local
exchange companies already subject to
regulation by the WUTC. See RCW
80.36.080 (rates, services, and facilities);
RCW 80.36.100 (tariff schedules to be
filed and open to public); RCW 80.36.140
(rates and services fixed by commission,
when). Of particular relevance here is that
the WUTC determines whether the rates of
the telephone companies are just and reasonable. The telephone companies are required to file their tariffs. A tariff lists the
rates, terms, and conditions under which
service providers offer services to their
customers. RCW 80.36.100; Allen v. Gen.
Tel. Co. of the Northwest, Inc., 20
Wash.App. 144, 145, 578 P.2d 1333
(1978). Although this court recognizes that
it is likely a legal fiction, once a tariff has
been properly filed with and accepted by
the WUTC, a consumer is conclusively
presumed to know the tariff's contents.
Hardy v. Claircom Communications
Group, Inc., 86 Wash.App. 488, 492, 937
P.2d 1128 (1997) (claims barred because
company disclosed rates in tariff). Therefore, the companies here have already appropriately disclosed their rates.
**1108 To accept Judd's arguments would require this court to rewrite three relatively unambiguous statutes. This we cannot do.
[5] Judd also claims the trial court erred in concluding that the exclusive means of challenging the
validity of the regulations was a proceeding under
the Administrative Procedure Act. Again, Judd's argument misses the mark.
[6] Judd acknowledges that this case is an attempt to challenge the validity of the WUTC regulations as exceeding the statutory authority of the
agency but argues that it is not a review proceeding
under the Administrative Procedure Act. We dis-

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agree. The Administrative Procedure Act, RCW
FN12
34.05.510,
is the exclusive means of judicial
review of agency action. The act governs chalFN13
lenges to the validity of agency regulation.
FN12. The relevant portions of RCW
34.05.510 include:
This chapter establishes the exclusive
means of judicial review of agency action, except:
(1) The provisions of this chapter for judicial review do not apply to litigation in
which the sole issue is a claim for money
damages or compensation and the
agency whose action is at issue does not
have statutory authority to determine the
claim.
FN13. Manor v. Nestle Food Co., 131
Wash.2d 439, 445-46, 932 P.2d 628 (1997)
; 945 P.2d 1119.
Of more serious concern is Judd's argument
that her claims come within the “money damages
only” exception of *772 the Administrative Procedure Act, RCW 34.05.510(1). We disagree with this
claim for a couple of reasons. First, the pleadings
technically belie the argument. Judd seeks injunctive relief as well as a claim of money damages.
FN14
Although Judd claims she would forego the
injunctive relief, she has never moved to withdraw
that portion of her claim, only stating she would if
necessary. Additionally, Judd seeks specific statutory remedies of presumed damages plus $200 and
treble damages under the CPA. In a recent case regarding equitable liens against the federal government, the United States Supreme Court held that in
a case with a similar type of prayer for relief, seeking more than “mere compensation,” the prayer
took the action outside of any “money damages
FN15
only” exception.
REGARDLESS, THE
DAMages prayed for here are necessarily for a violation of established agency rules and Judd does
not claim any violation of these rules.

Page 8

FN14. In her complaint Judd indicated that
the plaintiffs and their class are entitled to
an injunction under RCW 19.86.090.
FN15. See Dep't of the Army v. Blue Fox,
Inc., 525 U.S. 255, 260-61, 119 S.Ct. 687,
142 L.Ed.2d 718 (1999).
[7] Further, the removal of local exchange
companies from the 1991 alternate operator services disclosure regulations does not conflict with
the disclosure provisions of RCW 80.36.520. RCW
80.36.520 requires the WUTC to assure appropriate
disclosure to consumers. At the time of the 1991 alternate operator services regulation, local exchange
companies were already required to disclose rates.
The issue of determining what appropriate disclosure is, is exactly what the Legislature delegated to
the WUTC. In its discretion, the WUTC concluded
that the existing level of disclosure was appropriate,
especially considering it was the non-local exchange companies that the Legislature pointed to as
the problem companies charging higher rates.
Where the Legislature specifically delegates to an
administrative*773 agency the power to make the
rules, there is a presumption that such rules are valFN16
id.
FN16. Weyerhaeuser Co. v. Dep't of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5
(1976); Armstrong v. State, 91 Wash.App.
530, 536-37, 958 P.2d 1010 (1998).
For example, as to the later waivers allowed by
the WUTC, the waiver granted to Qwest reads in
part as follows:
The Commission finds that this is a sound request
since the Company's operated-assisted rates compare favorably to other carrier's rates that serve
inmate phones. With the condition of providing
the Commission with a monthly report outlining
specific action steps taken to ensure implementation of this technology by year end, the Commission will grant the waiver, temporarily, of WAC
480-120-141(2)(b) until **1109 December 1,

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2000 only as it applies to the receiver of the colFN17
lect call....
FN17. Order of Wash. Utils. & Transp.
Comm'n Granting Full and Partial Temporary Waiver of WAC 480-120-141(2)(b), In
re Request for Waiver of Admin. Rules for
Qwest Corp., No. UT-990043 (Sept. 27,
2000).
This waiver temporarily relieved Qwest, and a
similar waiver temporarily relieved Verizon, from
the requirement of oral disclosure of how to obtain
a rate quote under the 1999 regulation, but it did
not relieve the phone companies from the duty to
disclose its rates by tariff.
Judd cites the case of Rios v. Department of
FN18
Labor & Industries
regarding the limits of
agency discretion in carrying out mandatory duties
imposed by statute. There the court distinguished
between a mandatory duty and the agency's procedural discretion in implementing the duty. The Rios
case is distinguishable from this case in at least two
ways. First, in Rios, pesticide handlers challenged
the validity of a Department of Labor & Industries'
rule, and also challenged the Department's subsequent failure to initiate additional rulemaking under the Administrative Procedure Act. Here, unlike
in Rios, Judd has failed to challenge either the
validity of the WUTC rules or its failure to initiate
rulemaking under the Administrative *774 Procedure Act. Second, as explained in Rios, under the
rules of the Washington Industrial Safety and
FN19
Health Act of 1973,
the Department has a
mandatory duty to adopt a safety regulation after it
investigates and compiles evidence that a proposed
regulation is appropriate. Upon obtaining such
evidence, the Department of Labor & Industries no
longer has discretion, it must adopt a safety regulation. But here, the alternate operator services statute
has no similar language removing discretion from
the WUTC.
FN18. Rios v. Dep't of Labor & Indus., 103

Page 9

Wash.App. 126, 5 P.3d 19 (2000), aff'd in
part, rev'd in part, 145 Wash.2d 483, 39
P.3d 961 (2002).
FN19. Chapter 49.17 RCW.
The mandatory duty placed on the WUTC is
that it adopt rules regarding appropriate disclosure.
What was in fact “appropriate” was left to the discretion of the WUTC. The WUTC did not compile
evidence that these phone companies inappropriately charged the consumer. In fact, the opposite
was true. If Judd desired to challenge the validity of
the rules or wanted to sue to compel the WUTC to
promulgate additional rules then she should have
brought the WUTC into the suit.
Even if WUTC regulations are determined to
be invalid, the telephone companies' good faith reliance on the validity of the regulations would likely
be a defense to Judd's claims for damages in any
FN20
subsequent proceeding.
FN20. See Donaldson v. United States
Dep't of Labor, 930 F.2d 339, 345 n. 10
(4th Cir.1991); Goodman v. McDonnell
Douglas Corp., 606 F.2d 800, 809 (8th
Cir.1979).
[8] Finally, Judd claims the trial court erred in
dismissing claims against CenturyTel based, in
part, on a determination that CenturyTel provided
only local service and never provided long distance
service. A review of the record supports the fact
that neither PTI Communications, Inc., nor CenturyTel provided long distance telephone or long
distance operator services with respect to Washington State prison inmates. PTI Communication,
Inc.'s role as a subcontractor to AT & T was limited to local telephone service.
*775 The decision of the trial court is affirmed.
AGID, J., concurs.
APPELWICK, J. (Dissenting in part).
The majority opinion states

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that

RCW

66 P.3d 1102
116 Wash.App. 761, 66 P.3d 1102
(Cite as: 116 Wash.App. 761, 66 P.3d 1102)

80.36.510 merely provides an introduction to legislative policy that does not give rise to enforceable
rights in and of themselves. Majority opinion at
page 1107. I must take issue with this premise and
the results which flow from it.
RCW 80.36.510, .520, and .530 were enacted
as sections (1), (2), and (3) respectively of chapter
91, Laws of 1998. They must be read together.
RCW 80.36.530 states: “[A] violation of RCW
80.36.510 or 80.36.52[0] constitutes ... a violation
of chapter 19.86 RCW, the consumer protection
act....” It goes on to provide a special damages rule
**1110 that is different from the general rule stated
in chapter 19.86 RCW. Subsequent amendments to
chapter 19.86 RCW are of no consequence to this
analysis and will not be discussed here.
“ ‘Statutes must be interpreted and construed
so that all the language used is given effect, with no
portion rendered meaningless or superfluous.’ ”
City of Seattle v. State, 136 Wash.2d 693, 701, 965
P.2d 619 (1998) (quoting Whatcom County v.
Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303
(1996)). To give effect to RCW 80.36.530 requires
that we read RCW 80.36.510 and .520 as creating
rules which can be violated, triggering the penalties
of RCW 80.36.530.
RCW 80.36.520 requires the Washington Utilities and Transportation Commission (WUTC) to
adopt the rules. Any rule adopted by the WUTC
must require a company operating as or contracting
with an alternative operator services company
(AOSC) to make two disclosures at a minimum.
The rule must require disclosure of the AOSC service and of the charge or basis of the charge to be
made. Nowhere in RCW 80.36.520 does the language expressly impose a substantive requirement
directly on the telecommunication company. The
WUTC could violate this section by failing to adopt
rules, or by adopting rules which failed to *776
conform to the statute. However, no one other than
the WUTC could violate this section.
Clearly, the Legislature did not say a violation

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of the rules promulgated by the WUTC pursuant to
RCW 80.36.520 is a violation of chapter 19.86
RCW. Yet, both the trial court and the majority concluded that when the Legislature said, “in violation
of RCW 80.36.520,” it intended the consumer protection act to apply only to violations of the rules
once adopted pursuant to RCW 80.36.520 by the
WUTC. Such a reading is a reasonable means to
discharge the duty to give effect to that portion of
RCW 80.36.530. Since Judd had not alleged violation of these rules, she could not establish a consumer protection action by way of violation of
RCW 80.36.520. I agree with that analysis. I also
agree she did not properly challenge the rules.
While the majority properly supplied an implied legislative intent relative to agency rules to
give effect to the cross-reference to RCW
80.36.520, it failed to give effect to the crossreference to RCW 80.36.510. RCW 80.36.510
provides:
The legislature finds that a growing number of
companies provide, in a nonresidential setting,
telecommunications services necessary to long
distance service without disclosing the services
provided or the rate, charge or fee. The legislature finds that provision of these services
without disclosure to consumers is a deceptive
trade practice.
This section says two things: (1) there is a
growing problem with disclosure; and (2) providing
service without disclosure is a deceptive trade practice. The first sentence is a factual observation
within the legislative purview. Reading it without
the words, “[t]he legislature finds that,” makes
clear the nature of the statement. Leave the same
words off the second sentence, and one readily observes that the second sentence is a statement of
law, not a finding of fact: “provision of these services without disclosure to consumers is a deceptive trade practice.” RCW 80.36.510. If the trial
court mislabels a conclusion of law and calls it a
finding of fact, we would readily correct the label.
We must do the *777 same here. Only the second

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66 P.3d 1102
116 Wash.App. 761, 66 P.3d 1102
(Cite as: 116 Wash.App. 761, 66 P.3d 1102)

sentence of RCW 80.36.510 could give rise to a violation. We are bound to give it effect in order to
avoid rendering the cross-reference in RCW
80.36.530 meaningless.
Clumsy or not, like the policy or not, this language is what the Legislature wrote. We must give
it effect. The result is that RCW 80.36.510 may be
violated independent of RCW 80.36.520. It may be
violated by providing telecommunications services,
in a nonresidential setting, without disclosing the
services provided or the rate, charge or fee. Violation is a deceptive trade practice. Penalties are
available under RCW 80.36.530 and chapter 19.86
RCW.
Summary judgment was therefore improper on
this issue. Judd should have been allowed to proceed to trial to attempt to **1111 prove violation of
RCW 80.36.510 and to recover damages consistent
with such proof.
Therefore, I respectively dissent.
Wash.App. Div. 1,2003.
Judd v. American Tel. and Tel. Co.
116 Wash.App. 761, 66 P.3d 1102
END OF DOCUMENT

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