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[Service Date July 18, 2005]
BEFORE THE WASHINGTON STATE
UTILITIES AND TRANSPORTATION COMMISSION
SANDRA JUDD AND TARA
HERIVEL,
Complainants,
v.
AT&T COMMUNICATIONS OF
THE PACIFIC NORTHWEST, INC.,
AND T-NETIX, INC.,
Respondents.
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DOCKET NO. UT-042022
ORDER NO. 05
ORDER DENYING T-NETIX’S
MOTIONS FOR SUMMARY
DETERMINATION AND TO
STAY DISCOVERY; DENYING
COMPLAINANTS’
CONDITIONAL MOTION;
DENYING, IN PART, T-NETIX’S
MOTION TO STRIKE;
GRANTING AT&T’S MOTION
FOR LEAVE TO FILE RESPONSE
SYNOPSIS. Consistent with the oral decision issued following oral argument, this
Order denies T-Netix’s motion for summary determination. The Commission may not
dismiss the proceeding for lack of standing. The Superior Court has primary jurisdiction
over this proceeding. The Order also denies T-Netix’s Motion to Stay Discovery, denies
Complainants’ Conditional Motion, grants in part T-Netix’s Motion to Strike, and
grants AT&T’s Motion for Leave to File a Response to the Supplemental Declaration of
Kenneth L. Wilson.
2
NATURE OF PROCEEDING. Docket No. UT-042022 is a complaint filed by
recipients of inmate-initiated calls against AT&T Communications of the Pacific
Northwest, Inc. (AT&T), and T-Netix, Inc. (T-Netix), alleging that AT&T and
T-Netix failed to disclose rates for the calls, violating the Commission’s rules
governing disclosure. The complaint was filed with the Commission after the
King County Superior Court referred the matter to the Commission under the
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 2
doctrine of primary jurisdiction to allow the Commission to complete an
adjudication into certain issues of fact and law.
3
PROCEDURAL HISTORY. The complaint initiating this proceeding was filed
with the Commission on November 17, 2004. On December 15, 2005, AT&T filed
a Motion for Summary Determination, and on December 16, 2004, AT&T filed a
response to the formal complaint.
4
During a prehearing conference held on February 16, 2005, before Administrative
Law Judge Ann E. Rendahl, the parties agreed to a procedural schedule in the
proceeding, including a schedule for discovery. The Commission adopted the
schedule in Order No. 01 in this proceeding, a prehearing conference order.
5
On March 18, 2005, the Commission entered Order No. 02 in this proceeding, a
protective order.
6
On April 21, 2005, T-Netix filed with the Commission a Motion for Summary
Determination and a Motion to Stay Discovery.
7
Pursuant to the Commission’s April 25, 2005, notice, AT&T and Complainants on
May 6, 2005, filed responses to T-Netix’s motions. AT&T joined in T-Netix’s
motions, and Complainants filed a number of declarations supporting their
response, as well as a Conditional Motion to Postpone Consideration of T-Netix’s
Motion for Summary Determination Until Complainants Have Been Permitted
Additional Discovery.
8
On May 10, 2005, T-Netix filed its Reply in Support of its Motions for Summary
Determination and to Stay Discovery, a response to the Complainant’s
conditional motion, an affidavit in support of the Motion for Stay of Discovery, a
Motion to Strike, and a declaration in support of the Motion to Strike.
DOCKET NO. UT-042022
ORDER NO. 05
9
PAGE 3
Following a teleconference call held on May 10, 2005, the Administrative Law
Judge learned of T-Netix’s filing with the Commission and requested T-Netix’s
counsel to coordinate responsive pleading deadlines with counsel for
Complainants.
10
The Administrative Law Judge issued a notice on May 11, 2005, establishing a
schedule allowing parties to file additional responsive pleadings to address TNetix’ motion to strike, and scheduling oral argument on T-Netix’s motions for
June 7, 2005.
11
Pursuant to the May 11, 2005, notice, Complainants filed with the Commission
on May 16, 2005, a response to T-Netix’s Motion to Strike, with a supporting
declaration, and a Reply to AT&T’s response joining in T-Netix’s motions, with
supporting declarations.1 On May 20, 2005, T-Netix filed a reply in support of its
Motion to Strike, and AT&T filed a surreply in support of its response joining in
T-Netix’s motions.
12
On May 31, 2005, Complainants filed a Highly Confidential Motion for Leave to
File Supplemental Declaration of Kenneth L. Wilson Dated May 27, 2005, and the
Highly Confidential Supplemental Declaration of Kenneth L. Wilson in support
of Complainants’ response to T-Netix’s motion for summary determination and
Complainant’s reply to AT&T’s Response.
13
Also on May 31, 2005, T-Netix submitted by electronic mail an Emergency (1)
Opposition to Complainants’ Motion to File Supplemental Wilson Declaration
and (2) Motion to Strike or, in the Alternative, for Right of Reply and
Continuance of June 7 hearing.
The May 11, 2005, notice provided for parties to submit electronic copies of the pleadings with
the Commission by 5:00 pm on May 13, 2005, with paper copies to be filed on May 16.
Complainants submitted electronic copies to all parties and the Commission at 7:51 and 7:54 p.m.
on May 13.
1
DOCKET NO. UT-042022
ORDER NO. 05
14
PAGE 4
On June 1, 2005, Complainants filed a Response to T-Netix’s Emergency Motion
and Motion to Strike.
15
In Order No. 04, entered on June 2, 2005, the Administrative Law Judge granted
the Complainants’ Motion for Leave to File a Supplemental Declaration, and
denied T-Netix’s Motion to Strike, allowing T-Netix and AT&T to file responses
to the supplemental declaration. The Order also granted the Complainant’s
Motion to Continue the June 7, 2005, oral argument.
16
On June 6, 2005, the Commission issued a Notice rescheduling the oral argument
until June 28, 2005.
17
On June 13, 2005, T-Netix filed with the Commission a Highly Confidential
Affidavit of Alan Schott in Support of T-Netix, Inc.’s Motion for Summary
Determination. On June 15, 2005, AT&T filed a Highly Confidential Motion for
Leave to File Its Response to the Supplemental Declaration of Kenneth L. Wilson,
as well as a Declaration of John D. Schell, Jr.
18
On June 20, 2005, Complainants filed a Highly Confidential Response to AT&T’s
Motion.
19
On June 24, 2005, T-Netix filed with the Commission a Highly Confidential
Supplemental Affidavit of Alan Schott in Support of T-Netix, Inc.’s Motion for
Summary Determination. On June 27, 2005, T-Netix filed a Supplemental
Affidavit of Nancy Lee in Support of T-Netix, Inc.’s Motion for Summary
Determination.
20
On June 28, 2005, the parties presented oral argument on the pending motions
before Administrative Law Judge Rendahl. Following oral argument, the
Administrative Law Judge issued an oral ruling denying T-Netix’s Motions for
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 5
Summary Determination and to Stay Discovery, denying Complainant’s
conditional motion, granting, in part, T-Netix’s Motion to Strike, and granting
AT&T’s Motion for Leave to File a Response to the Supplemental Declaration of
Kenneth L. Wilson.
21
APPEARANCES. Jonathan P. Meier, Sirianni Youtz Meier & Spoonemore,
Seattle, Washington, represents Sandra Judd and Tara Herivel, Complainants.
Letty Friesen, AT&T Law Department, Austin, Texas, and Charles H.R. Peters
and David C. Scott, Schiff Hardin, LLP, Chicago, Illinois, represent AT&T.
Arthur A. Butler, Ater Wynne LLP, Seattle, Washington, and Glenn B. Manishin
and Stephanie Joyce, Kelley Drye & Warren LLP, Washington, D.C., represent
T-Netix.
MEMORANDUM
22
A. T-Netix’s Motion for Summary Determination. T-Netix moves to dismiss
the proceeding asserting that Complainants lack standing to pursue their claims
before this Commission.2 T-Netix asserts that documents recently produced in
discovery show that Complainants suffered no “cognizable harm.”3 T-Netix
asserts that all of the calls for which Complainants seek relief were carried by
two local exchange carriers, US West, and GTE, and that both carriers were
granted waivers from the Commission’s rule.4 T-Netix asserts that T-Netix did
not carry any of the calls and that Complainants suffered no harm.5
23
T-Netix asserts that persons bringing a complaint before the Commission must
demonstrate standing by showing injury in fact, i.e., financial or other injury, and
must have an interest within the “zone of interest” that the Commission’s
T-Netix’s Motion for Summary Determination, ¶ 2.
Id.; see also Exhibits 9-11 to T-Netix’s Motion for Summary Determination.
4 Id., ¶¶ 9-12.
5 Id., ¶¶ 2, 14, 16-21.
2
3
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ORDER NO. 05
PAGE 6
statutes or rules are designed to protect.6 Relying on the exhibits to its motion
and several affidavits, T-Netix asserts that Complainants have suffered no injury
in fact as none of the calls involved T-Netix and that none of the calls identified
on Complainants’ phone bills were subject to rate disclosure.7 T-Netix asserts
that Complainants are not within the “zone of interest,” as the local exchange
companies, US West and GTE, did not owe Complainants a duty to disclose the
rates for inmate-initiated local and intraLATA calls due to exemptions from the
rule.8 T-Netix asserts that it has met the standards for granting a motion for
summary determination: The material facts are not in dispute and the
Complainants have not demonstrated standing to pursue a claim before the
Commission.9
24
T-Netix acknowledges that this matter has been referred to the Commission by
the King County Superior Court under the doctrine of primary jurisdiction to
determine whether T-Netix has violated the Commission’s regulations.10 T-Netix
asserts, however, that the Commission need not reach that question if the
Complainants lack standing.11 T-Netix agrees with Complainants that the
Commission has only “derivative” jurisdiction under the Superior Court’s
primary jurisdiction referral.12 T-Netix asserts, however, that if the Superior
Court would not have jurisdiction due to lack of standing, the Commission does
not have jurisdiction to resolve the questions referred, and must dismiss the
proceeding.13 T-Netix asserts that the Commission has no further duty to assist
Id., ¶ 13, citing Stevens v. Rosario Utils., WUTC Docket No. UW-011320, Third Supplemental
Order at 19 (July 12, 2002); Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 576
P.2d 401, 403-404 (1978).
7 Id., ¶¶ 14-21; see also Exhibits 4 and 11 to T-Netix’s Motion; June 13, 2005, Affidavit of Alan
Schott; June 24, 2005, Supplemental Affidavit of Alan Schott; June 27, 2005, Supplemental
Affidavit of Nancy Lee.
8 T-Netix’s Summary Determination Motion, ¶¶ 22-23.
9 Id., ¶¶ 3, 14-23.
10 Id., ¶ 24.
11 Id., ¶ 28.
12 T-Netix’s May 11, 2005, Reply, ¶ 11.
13 T-Netix’s Summary Determination Motion, ¶¶ 29-30; T-Netix’s May 11, 2005, Reply, ¶ 11.
6
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 7
the Superior Court and must dismiss the proceeding.14 T-Netix further asserts
that continuing with the referral would be a waste of resources, and that
disposing of the issue of standing would resolve the entire controversy.15
25
AT&T joins in T-Netix’s Motion for Summary Determination, asserting that the
information T-Netix presents also demonstrates that Complainants have no
standing to pursue a claim against AT&T.16
26
Complainants dispute T-Netix’s arguments that (1) T-Netix was not involved in
any of the calls, and (2) the Commission may dismiss for lack of standing a
matter referred under the doctrine of primary jurisdiction.17 Complainants object
to AT&T’s “joinder,” asserting that the pleading goes beyond the issues raised
and seeks affirmative ruling for AT&T.18 Complainants object that AT&T’s
joinder attempts to accelerate its own motion for summary determination and
limit discovery the Commission ordered on AT&T’s motion.19
27
Addressing the factual issues raised by T-Netix and AT&T, Complainants assert
that the issue of whether a telephone call is subject to the rate disclosure
requirements in WAC 480-120-141 does not depend on the carrier that “carried”
the call, but upon who provided a “connection,” i.e., operator services.20
Complainants assert that T-Netix is an operator service provider (OSP) and that
the key question is whether T-Netix provided operator services on the phone
calls in question, not whether an exempt carrier was involved with the phone
T-Netix’s Summary Determination Motion, ¶ 30.
T-Netix’s May 11, 2005, Reply, ¶¶ 5, 13.
16 AT&T Response Joining in T-Netix’s Motions for Summary Determination and to Stay
Discovery, ¶¶ 2, 6, 8, 12.
17 Complainants’ Response to T-Netix Motion for Summary Determination, ¶¶ 1-4.
18
Complainants’ Reply to AT&T’s Response, ¶ 1.
19 Id.
20 Complainants’ Response, ¶¶ 1, 20-21, 23-26; see also Complainants’ Reply to AT&T’s Response,
¶¶ 12, 19-21.
14
15
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 8
calls in question.21 Complainants submit two declarations of Kenneth L. Wilson
in support of its Response to T-Netix’s motion.22 Complainants assert that
material facts remain in dispute, additional discovery is warranted, and the
Commission should not dismiss the proceeding.23 Complainants further assert
that AT&T and T-Netix are liable under the statue governing operator services
providers asserting that the statue focuses on companies operating as or
contracting with an alternate operator services company.24
28
Complainants assert that the Commission may not dismiss the case for lack of
standing. Complainants assert that the King County Superior Court did not
relinquish jurisdiction over the proceeding when it referred to the Commission
the question of whether T-Netix violated the Commission’s rules.25
Complainants assert that the Court referred only specific issues to the
Commission due to the Commission’s expertise concerning operator services
companies, but retained jurisdiction to make the final decision in the
proceeding.26
29
Complainants assert that an agency’s role in a primary jurisdiction referral is
strictly limited to the questions referred to the agency, and that primary
jurisdiction does not invoke the independent jurisdiction of the agency.27
Complainants assert that the Commission has statutory authority to resolve the
issue of whether T-Netix violated the Commission’s rules.28 Complainants assert
Complainants’ Response, ¶¶ 1-2, 6-7, 17-20.
May 2, 2005, Declaration of Kenneth L. Wilson in Support of Complainants’ Response; May 27,
2004, Supplemental Declaration of Kenneth L. Wilson.
23 Complainants’ Response, ¶¶ 21-26; see also Complainants’ Reply to AT&T’s Response, ¶¶ 4, 711.
24 Complainants’ Reply to AT&T’s Response, ¶ 17.
25 Complainants’ Response, ¶ 27.
26 Id., ¶ 28, quoting Jaramillo v. Morris, 50 Wn. App. 822, 828, 750 P.2d 1301 (1988).
27
Id., citing Dioxin/Organochlorine Center v. Department of Ecology, 119 Wn.2d 761, 837 P.2d 1007
(1992); International Ass’n of Heat & Frost Insulators and Asbestos Workers v. United Contractors Ass’n,
Inc., 483 F.2d 384, 401 (3d Cir. 1973).
28 Id., ¶ 33.
21
22
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 9
that the issue of standing is within the Superior Court’s primary jurisdiction over
the proceeding, an issue the court reserved for itself.29 The Complainants assert
that the Superior Court can address the issue of standing after the Commission
resolves the questions in the referral.30
30
Finally, Complainants assert that if there is a problem with standing, the
Commission should allow them to amend their complaint to include additional
class representatives.31 Complainants offer the declarations of Suzanne Elliott
and Maureen Janega in support of this request.32
31
In reply, T-Netix moves to strike the declarations of Ms. Elliott and Ms. Janega as
outside of the scope of the proceeding and as prejudicial to T-Netix.33 The
motion is discussed further below in Section II. C. T-Netix asserts that the
Commission does not have jurisdiction to permit joinder in a primary
jurisdiction referral.34 T-Netix asserts the Commission cannot decide issues
outside of the scope of the referral and requests the Commission deny
Complainants’ request for leave to amend to include new complainants.35
32
Discussion and Decision. Under WAC 480-07-380(2), the Commission’s rules
governing motions for summary determination, the Commission will consider
the standards applicable to motions for summary judgment made under the civil
rules. Under CR 56, a party may move for summary determination if the
pleadings, together with any properly admissible evidentiary support, show that
there is no genuine issue as to any material fact and the party is entitled to
judgment as a matter of law. Summary judgment is properly entered if there is
Id., ¶ 29.
Id., ¶ 35.
31 Complainants’ Reply to AT&T’s Response,¶¶ 36, 39.
32 Id., ¶¶ 38-39.
33 T-Netix’s Reply, ¶ 8.
34 Id., ¶ 15.
35 Id., ¶¶ 16-19.
29
30
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 10
no genuine issue as to any material fact, that reasonable persons could reach only
one conclusion, and that the moving party is entitled to judgment as a matter of
law.36 In resolving a motion for summary judgment, a court must consider all
the facts submitted by the parties and make all reasonable inferences from the
facts in the light most favorable to the nonmoving party.37
33
After considering the numerous pleadings and affidavits presented by the
parties and making all reasonable inferences from the facts in the light most
favorable to the nonmoving party, T-Netix’ motion for summary determination
is denied. There is a genuine issue of material fact in dispute and T-Netix is not
entitled to judgment as a matter of law.
34
The issue in this proceeding is whether T-Netix and AT&T provided service as
operator service companies on the calls at issue in this proceeding. While TNetix asserts that only US West and GTE carried the calls in question,
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.
35
Even if there were no genuine issue of material fact in dispute, as T-Netix asserts,
T-Netix is not entitled to judgment as a matter of law. The law at issue here is
not the law governing standing, but the doctrine of primary jurisdiction. Under
the doctrine of primary jurisdiction, if a court finds that an issue raised in a
dispute before the court is within the primary jurisdiction of an agency, the court
will defer a decision in the action until the agency has addressed the particular
issue within its primary jurisdiction, but retains jurisdiction over the dispute
36
37
Tanner Electric Coop. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 668 (1996).
Id.
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 11
itself and all other issues in dispute.38 The doctrine of primary jurisdiction “’does
not necessarily allocate power between courts and agencies, for it governs only
the question whether court or agency will initially decide a particular issue, not
the question whether court or agency will finally decide the issue’.”39 Thus,
where a court refers issues to an agency under the doctrine of primary
jurisdiction, the referral does not invoke the agency’s jurisdiction over all issues
in dispute, only those issues referred to the agency.
36
In this proceeding, King County Superior Court Judge Learned referred to the
Commission under the primary jurisdiction doctrine the issues of (1) “whether or
not [AT&T is] considered by the agency to be an OSP under the contracts at issue
herein and if so if the regulations have been violated,” and (2) “to determine if TNetix has violated WUTC regulations.”40 Judge Learned stayed resolution of
Complainants’ Consumer Protection Act claims and any award of monetary
damages pending the Commission’s action on the issues.41
37
The issue of Complainants’ standing to bring a complaint before the Commission
is not within the issues referred to the Commission for consideration: Judge
Learned reserved jurisdiction to resolve all other issues in the dispute. As this
matter is on referral from the Superior Court and not a complaint filed initially
with the Commission, the Commission does not have jurisdiction to decide the
issue of standing. While resolving the issue of standing may avoid a waste of
resources, as T-Netix asserts, it would be inappropriate for the Commission not
to address the questions referred by the Superior Court.
2 R. Pierce, Administrative Law Treatise, § 14.1.
In re Real Estate Brokerage Antitrust Litigation, 95 Wn.2d 297, 301-302, 622 P.2d 1185 (1980),
quoting 3 K. Davis, Administrative Law, § 19.01 (1958).
40 Judd, et al. v. AT&T, et al., King County Superior Court Case No. 00-2-17565-5 SEA, Order
Granting AT&T Corp.’s Motion to Dismiss, 2 (Aug. 28, 2000); Judd, et al. v. AT&T, et al., King
County Superior Court Case No. 00-2-17565-5 SEA, Order Denying in Part Defendant T-Netix,
Inc.’s Motion to Dismiss First Amended Complaint – Class Action and Granting in Part and
Referring to WUTC, 2 (Nov. 9, 2000).
41 Id.
38
39
DOCKET NO. UT-042022
ORDER NO. 05
38
PAGE 12
For the same reasons this Order denies T-Netix’s Motion for Summary
Determination, the Order rejects Complainant’s request to amend its complaint
to include Ms. Elliott and Ms. Janega as complainants. The Commission’s
jurisdiction in this proceeding is limited to the issues referred by the Superior
Court. The Superior Court retained jurisdiction over all other issues, including
amending the complaint.
39
B. T-Netix’s Motion to Stay Discovery, and Complainants’ Conditional
Motion. T-Netix filed a motion to stay discovery in the proceeding pending the
resolution of its motion for summary determination. Because a motion for
summary determination does not automatically stay the procedural schedule of a
case, T-Netix requests the Commission enter an order staying discovery.42 TNetix asserts that an order staying discovery is warranted as discovery is
burdensome and may lead to disclosure of “highly-sensitive commercial and
security information” where there is the possibility the case may be dismissed.43
T-Netix also asserts that there is no deadline for resolving the proceeding.44
40
AT&T asserts that it should not be required to disclose confidential information
in discovery where there may be no basis for Complainants’ claims.45
41
Complainants oppose T-Netix’s motion to stay discovery asserting that AT&T
and T-Netix have already refused to continue discovery until T-Netix’s motion is
resolved.46 Complainant’s object to T-Netix and AT&T’s refusal to participate in
further discovery and asserts that T-Netix has obstructed Complainants’ efforts
to obtain information.47 Complainants identify specific responses by T-Netix and
T-Netix’s Motion to Stay Discovery, ¶ 3.
Id., ¶ 4.
44 Id.
45 AT&T’s Response, ¶ 14; AT&T’s Surreply, ¶ 15.
46 Complainants’ Response, ¶ 1; Complainants’ Reply to AT&T’s Response, ¶ 28.
47 Complainants’ Response, ¶¶ 3, 5-9.
42
43
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AT&T as examples of the parties’ refusal to respond to discovery.48
Complainants request that the Commission not condone T-Netix and AT&T’s
conduct in staying discovery contrary to WAC 480-07-380(d).49
42
Complainants further requests through a Conditional Motion that the
Commission postpone consideration of T-Netix’s motion for summary
determination until T-Netix responds to discovery requests.50 Complainants also
request the right to discovery on issues raised in T-Netix’s motion for summary
determination.51
43
In reply, T-Netix denies that it has failed to cooperate in discovery.52 T-Netix
asserts that any objections to T-Netix’s responses to data requests and conduct in
discovery should be raised in a motion to compel rather than in a response to its
motion to stay discovery.53 T-Netix will treat the portion of Complainant’s
Response as an invitation to meet and confer and will address Complainants’
counsel’s concerns.54
44
T-Netix opposes Complainants’ request for additional discovery to respond to
the motion for summary determination.55 T-Netix asserts that the facts
supporting the motion are indisputable and that the Commission does not need
additional information to decide the issue.56 T-Netix objects to allowing new
discovery to substantiate the claims in Ms. Elliott and Ms. Janega’s declarations.57
Id., ¶¶ 5-11.
Id., ¶ 14.
50 Id., ¶ 17.
51 Id., ¶ 18.
52 T-Netix’s Reply, ¶ 2.
53 Id., ¶ 7.
54 Id.
55 Id., ¶¶ 8-13.
56 Id., ¶¶ 8, 11.
57 Id., ¶ 13.
48
49
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ORDER NO. 05
45
PAGE 14
Discussion and Decision. The Commission’s procedural rules, specifically WAC
480-07-380(2)(d), provide that filing a motion for summary determination does
not stay the procedural schedule in a case. T-Netix filed a motion to stay
discovery, seeking to stay discovery until the Commission resolved the pending
motion for summary determination. T-Netix’s motion is denied. The numerous
pleadings and affidavits in this matter indicate that there is a continuing need for
discovery to resolve issues of material fact in the proceeding. Complainants’
conditional motion is likewise denied. The parties must continue discovery to
allow the Commission to address the issues referred by the King County
Superior Court.
46
A matter of concern, however, is T-Netix and AT&T’s actions in ceasing
discussions with Complainants over outstanding data requests and refusing to
provide answers to pending data requests until the Commission resolved the
pending motions. Filing a motion to stay discovery does not allow the parties to
stay discovery. T-Netix and AT&T did not wait for the Commission to resolve
either motion before staying discovery on their own. Such conduct is not
acceptable. The Commission expects the parties to follow the procedural rules in
Chapter 480-07 WAC and will not tolerate such flagrant violations. The parties
must meaningfully respond to Complainants’ discovery requests. If T-Netix and
AT&T are correct that they are not OSPs and had no role in the inmate-initiated
calls in question, then they should be willing to disclose in discovery all relevant
information in the proceeding.
47
C. T-Netix’s Motion to Strike. T-Netix filed a motion to strike Complainants’
responsive pleadings in their entirety, or in the alternative, paragraphs 1 through
9 of the response and the declarations of Ms. Elliott and Ms. Janega.58 T-Netix
asserts that Complainants did not timely file their response, serving the pleading
on all parties and submitting it to the Commission at 7:51 p.m. on May 6, 2005,
58
T-Netix’s Motion to Strike, ¶¶ 1-15.
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 15
instead of the 5:00 p.m. filing deadline.59 T-Netix asserts that Complainants did
not seek an extension of time and that the Commission should not condone this
disregard of Commission procedures.60
48
Should the Commission not strike the Complainants’ responsive pleadings in
their entirety, T-Netix requests the Commission strike a part of the
Complainant’s response as “irrelevant and prejudicial.”61 T-Netix objects to
paragraphs 1 through 9 of Complainants’ response concerning T-Netix’s conduct
in discovery.62 T-Netix asserts that Complainants’ response does not address
whether discovery should be stayed, but seeks merely to impugn T-Netix’s
counsel and raises issues that should be addressed in a motion to compel.
49
T-Netix also requests that the Commission strike the declarations of Ms. Elliott
and Ms. Janega.63 T-Netix asserts that the declarations raise new allegations and
new complainants, matters that are outside of the scope of the Superior Court’s
primary jurisdiction referral.64 T-Netix further asserts that the new declarations
are prejudicial as irrelevant to T-Netix’ motion and because the time to propound
discovery has ended.65
50
Complainants concede that they electronically submitted their responsive filing
late on May 6, 2005, but assert that they timely filed their paper copy on Monday,
May 9, 2005.66 Complainants assert that counsel underestimated the time to
comply with the confidentiality provisions of the protective order, and asserts
that it will not happen again.67 Complainants assert that the sanction T-Netix
Id., ¶ 2.
Id., ¶ 3.
61 Id., ¶ 4.
62 Id., ¶¶ 5-7.
63 Id., ¶ 8.
64 Id., ¶¶ 9-11.
65 Id., ¶¶ 12-14.
66 Complainants’ Response to T-Netix’s Motion to Strike, ¶¶ 1-2.
67 Id., ¶ 1.
59
60
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requests is too harsh, as the parties received both electronic and paper copies and
had the opportunity to reply.68
51
Complainants assert that issues raised in paragraphs 1 through 9 of their
response, i.e., whether T-Netix has engaged in a good-faith effort to resolve
discovery disputes and respond to discovery and whether a party may halt
discovery upon filing a motion for summary determination, are not irrelevant or
prejudicial.69 Complainants also assert that the two declarations should not be
stricken, asserting that T-Netix will not be prejudiced if a new schedule in the
proceeding allows additional discovery.70 Complainants assert that T-Netix’s
objections address the Commission’s authority to amend the complaint in this
proceeding.71
52
Discussion and Decision. T-Netix’s motion to strike Complainants’ responsive
pleading in its entirety is denied. T-Netix’s requested sanction for late filing is
too harsh, as T-Netix had ample opportunity to reply to the pleading. The
Commission does not condone late filing of materials. Where the opposing party
has not been prejudiced by the late filing, it is not appropriate to reject the
pleading. Complainants’ are on notice, however, that parties must submit all
electronic submissions to the Commission by 5:00 p.m. of the date set for
electronic submission, and send an electronic copy to the Administrative Law
Judge. Any other late submissions will be dealt with appropriately.
53
T-Netix’s alternative request to strike paragraphs 1 through 9 of the pleading is
also denied. While some of the issues Complainants raise are appropriate for a
motion to compel, Complainants are justified in complaining about discovery
efforts in the proceeding in the context of responding to motions for summary
Id., ¶ 3.
Id., ¶¶ 4-6.
70 Id., ¶¶ 9-10.
71 Id., ¶¶ 8-12.
68
69
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 17
determination and to stay discovery. Parties may not unilaterally halt discovery
while motions for summary determination are pending, even if a motion to stay
discovery is also pending.
54
The Commission expects parties to meaningfully respond to discovery requests.
Should discovery disputes arise in this proceeding, the party seeking information
should work directly with the responding party to address the dispute first, but
should bring disputes to the Commission’s attention promptly if the dispute is
not resolved.
55
Finally, T-Netix’s request to strike the declarations of Ms. Elliott and Ms. Janega
is granted. Complainants included these declarations to support their request to
amend the pleadings before the Commission. This Order rejects Complainants’
request as outside of the scope of the Superior Court’s primary jurisdiction
referral to the Commission. The declarations are unnecessary to this proceeding
and are stricken.
56
D. AT&T’s Motion for Leave to File Response. In Order No. 04, the
Administrative Law Judge allowed T-Netix to file a response to Complainants’
Highly Confidential Supplemental Declaration of Kenneth L. Wilson. On June
16, 2005, AT&T requested leave to file a response to Mr. Wilson’s supplemental
declaration, attaching the Declaration of John D. Schell, Jr.
57
Complainants do not object to AT&T’s motion, asserting that the statements in
Mr. Schell’s declaration support the need for additional discovery in the
proceeding.72
58
Discussion and Decision. Consistent with the decision during oral argument,
AT&T’s motion is granted. Complainants do not object to the motion. Order No.
04 allowed T-Netix, AT&T’s co-defendant, the opportunity to file a response to
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 18
Mr. Wilson’s supplemental declaration. AT&T should be given the same
opportunity.
FINDINGS OF FACT
59
(1)
Complainants Sandra Judd and Tara Herivel received inmate-initiated
calls and allege in a compliant filed in King County Superior Court that
they did not receive the rate disclosures for those calls required by the
Commission’s rules.
60
(2)
T-Netix, Inc., and AT&T of the Pacific Northwest, Inc., are classified as
competitive telecommunications companies under RCW 80.36.310-330.
61
(3)
King County Superior Court Judge Learned ordered several issues to be
considered by the Washington Utilities and Transportation Commission
through a primary jurisdiction referral.
62
(4)
T-Netix filed a motion for summary determination and motion to stay
discovery asserting that the Complainants lack standing to bring their
complaint before the Commission.
63
(5)
The parties filed numerous pleadings, attaching exhibits, affidavits, and
declarations, to address the matters raised in T-Netix’s motions.
64
(6)
The Commission held oral argument on T-Netix’s motions, as well as
Complainants’ conditional motion and AT&T’s motion for leave to file a
response to a supplemental declaration of Mr. Wilson.
72
Complainants’ Response to AT&T’s Motion, ¶¶ 1-9.
DOCKET NO. UT-042022
ORDER NO. 05
65
(7)
PAGE 19
The declarations of Ms. Elliott and Ms. Janega, attached to Complainants’
Response, include new allegations to support a request to amend the
pleadings.
66
(8)
Complainants electronically submitted their responsive pleading to the
Commission nearly three hours after the 5:00 p.m. deadline for electronic
submission, but filed paper copies with the Commission in a timely
manner.
CONCLUSIONS OF LAW
67
(1)
Summary judgment is properly entered if there is no genuine issue as to
any material fact, that reasonable persons could reach only one
conclusion, and that the moving party is entitled to judgment as a matter
of law. Tanner Electric Coop. v. Puget Sound Power & Light Co., 128 Wn.2d
656, 668 (1996). In resolving a motion for summary judgment, a court
must consider all the facts submitted by the parties and make all
reasonable inferences from the facts in the light most favorable to the
nonmoving party. Id.
68
(2)
Complainant’s affidavits and pleadings raise questions of material fact as
to the role of T-Netix and AT&T in connecting the calls in question
between correctional institutions and the Complainants and identify
several issues of material fact concerning AT&T’s and T-Netix’s networks
and the carriers’ involvement in the calls in question.
69
(3)
The law at issue in T-Netix’s motion for summary determination is the
law governing the doctrine of primary jurisdiction, not the law governing
standing.
DOCKET NO. UT-042022
ORDER NO. 05
70
(4)
PAGE 20
Where a court refers specific issues to an agency under the doctrine of
primary jurisdiction, the court retains jurisdiction over all other issues in
the proceeding and will defer a decision until the agency addresses the
particular issues within its jurisdiction. See 2 R. Pierce, Administrative Law
Treatise, § 14.1.
71
(5)
T-Netix is not entitled to judgment as a matter of law, as the Commission
does not have primary jurisdiction in this matter to address issues of
standing, but is limited to applying its statutory authority to determine
whether AT&T is an operator services provider under the Commission’s
rules and whether AT&T and T-Netix violated the Commission’s rules
governing operator services companies.
72
(6)
The Commission does not have jurisdiction in this primary jurisdiction
referral to determine whether the Complainants may amend their
pleadings.
73
(7)
Filing a motion for summary determination does not stay the procedural
schedule in a proceeding, nor may a party unilaterally stay discovery after
filing a motion for summary determination, even after filing a motion to
stay discovery. See WAC 480-07-380(2).
74
(8)
It is not appropriate to reject or strike a pleading for late filing if the
opposing party has not been prejudiced by the late filing.
75
(9)
The declarations of Ms. Elliott and Ms. Janega address matters outside of
the scope of the Superior Court’s primary jurisdiction referral.
76
(10)
AT&T, as a co-defendant of T-Netix, should have the opportunity to file a
response to the supplemental declaration of Mr. Wilson.
DOCKET NO. UT-042022
ORDER NO. 05
PAGE 21
ORDER
THE COMMISSION ORDERS:
77
(1)
T-Netix, Inc.’s, Motion for Summary Determination is denied.
78
(2)
T-Netix, Inc.’s, Motion to Stay Discovery is denied.
79
(3)
Complainants’ Conditional Motion to Postpone Consideration of T-Netix,
Inc.’s Motion for Summary Determination is denied.
80
(4)
T-Netix, Inc.’s Motion to Strike the Declarations of Ms. Elliott and Ms.
Janega is granted, while T-Netix’s Motion to Strike the Complainants’
Responsive Pleading in its entirety, or in the alternative paragraphs 1
through 9, is denied.
81
(5)
The Motion of AT&T Communications of the Pacific Northwest, Inc., for
Leave to Filed its Response to the Supplemental Declaration of Kenneth L.
Wilson is granted.
82
NOTICE TO PARTIES: This is an Interlocutory Order of the Commission.
Administrative review may be available through a petition for review, filed
within 10 days of the service of this Order pursuant to WAC 480-07-810.
Dated at Olympia, Washington, and effective this 18th day of July, 2005.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
ANN E. RENDAHL
Administrative Law Judge
