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[Service Date March 31, 2011]
BEFORE THE WASHINGTON STATE
UTILITIES AND TRANSPORTATION COMMISSION
SANDY JUDD AND TARA
HERIVEL,
Complainants,
v.
AT&T COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC., AND
T-NETIX, INC.,
Respondents.
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DOCKET UT-042022
ORDER 25
FINAL ORDER AFFIRMING ORDER
23 IN PART ON OTHER GROUNDS
AND RESPONDING TO
QUESTIONS REFERRED FROM
SUPERIOR COURT
SYNOPSIS. This is a Final Order of the Commission that affirms Order 23, in part,
on grounds other than those stated on that order. The Commission clarifies the
application of its operator services rules to explain that an operator services provider
(OSP), like other telecommunications service providers, is the company that has the
direct business relationship with the consumers who use the services. The
Commission finds that AT&T Communications of the Pacific Northwest, Inc. (AT&T),
was the OSP for all intrastate collect calls placed from the four correctional facilities
at issue in this proceeding for which AT&T provided operator-assisted toll services.
The Commission affirms the conclusion in Order 23 that AT&T was not exempt from
the definition of OSP in effect prior to 1999. The Commission also finds based on
undisputed facts that the automated operator services platform used at the prisons
during the relevant period did not make rate quotes available to consumers as
required by Commission rules. Based on this finding, the Commission concludes that
by using that platform to provide operator services, AT&T violated Commission rules
for each collect call for which AT&T provided operator services. The Commission
defers to the Superior Court for any additional fact-finding and for the ultimate
disposition of the Complainants’ claims.
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ORDER 25
PAGE 2
TABLE OF CONTENTS
DISCUSSION ............................................................................................................... 6
A. AT&T was the OSP for the Intrastate Calls Placed from the Correctional
Facilities for which AT&T Provided the Operator-Assisted Toll Service. ........ 6
1.An OSP is the Entity with the Direct Business Relationship with the
Consumers of Operator Services. .................................................................... 6
2.The Undisputed Record Evidence Demonstrates that AT&T Was the OSP for
the Intrastate Operator-Assisted Toll Calls AT&T Carried. ......................... 13
3.AT&T Was Not Exempt from the Definition of “OSP.” ............................... 19
B. AT&T Violated Commission Rules Requiring OSPs to Make Rate Quotes
Available to Consumers of Operator-Assisted Collect Calls. .......................... 22
FINDINGS OF FACT ................................................................................................. 25
CONCLUSIONS OF LAW......................................................................................... 27
ORDER ....................................................................................................................... 29
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ORDER 25
PAGE 3
2
NATURE OF PROCEEDING. This proceeding involves a formal complaint filed
with the Washington Utilities and Transportation Commission (Commission) by
Sandy Judd and Tara Herivel (Complainants)1 against AT&T Communications of
the Pacific Northwest, Inc. (AT&T), and T-Netix, Inc. (T-Netix) (AT&T and TNetix collectively referred to as Respondents). Complainants request that the
Commission resolve certain issues under the doctrine of primary jurisdiction and
pursuant to the referral by the Superior Court.
3
APPEARANCES. Chris R. Youtz, Sirianni Youtz Spoonemore, Seattle,
Washington, represents Complainants. Letty Friesen, AT&T Law Department,
Austin, Texas, and Charles H. R. Peters, Schiff Hardin, LLP, Chicago, Illinois,
represent AT&T. Arthur A. Butler, Ater Wynne LLP, Seattle, Washington, and
Stephanie A. Joyce, Arent Fox LLP, Washington, D.C., represent T-Netix.
4
PROCEDURAL HISTORY. Order 23 summarizes the extensive history of this
proceeding, and we adopt that summary for purposes of this Order.2 In brief,
Complainants filed a complaint in Superior Court in June 2000, alleging that they
received collect calls from inmates in Washington State correctional facilities, that
Respondents provided operator services to those correctional facilities,3 and that
Respondents were operator service providers (OSPs) 4 that violated RCW 80.36.520
1
Zuraya Wright filed suit, in conjunction with Ms. Judd and Ms. Herivel, against Respondents in
the Superior Court of Washington for King County (Superior Court or Court). See Ex. A-2. Ms.
Wright‟s claim is restricted to interstate inmate telephone calls, and our jurisdiction extends only
to intrastate telephone calls. Accordingly, we do not address Ms. Wright‟s claim.
2
Order 23 ¶¶ 4-23. Similarly, we adopt those portions of Order 23 that summarize the governing
law, undisputed facts, and party positions. Id. ¶¶ 25-39 and 41-88.
3
Complainants originally named five telecommunications companies in their suit in Superior
Court. In addition to Respondents, Complainants also filed suit against Verizon Northwest, Inc.,
f/k/a GTE Northwest, Inc. (Verizon), Qwest Corporation, f/k/a U S West Communications, Inc.
(Qwest), and CenturyTel Telephone Utilities, Inc., f/k/a CenturyTel Telephone Utilities, Inc. and
Northwest Telecommunications, Inc., d/b/a PTI Communications, Inc. (CenturyTel). The trial
court dismissed Verizon, Qwest, and CenturyTel, and the appellate courts affirmed those
dismissals. Judd v. Am. Tel. & Tel. Co., 152 Wn.2d 195, 198, 95 P.3d 337 (2004).
4
The statute and original Commission rule refer to entities that provide connections from call
aggregators to local and interexchange carriers (IXCs) as “alternate operator services companies,
but WAC 480-120-021 (1999) changed the term for these entities to OSP, which is the term the
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ORDER 25
PAGE 4
by failing to assure rate disclosures for the collect calls Complainants received. The
Superior Court held the complaint in abeyance and referred two questions to the
Commission under the doctrine of primary jurisdiction:5
1) Whether AT&T or T-Netix were OSPs under the contracts at issue; and
2) If so, if the Commission‟s regulations were violated. 6
5
On November 17, 2004, Complainants filed a formal complaint with the Commission
pursuant to the court‟s referral. Complainants claim that Respondents are OSPs and
that they violated the Commission‟s rule requiring that OSPs provide rate quote
information to consumers.7 Both Respondents denied the allegations in the
Complaint and filed motions and amended motions for summary determination
requesting that the Commission find they were not OSPs during the period in question
and did not violate the Commission‟s regulations applicable to OSPs.
6
On April 21, 2010, following extensive proceedings in both the courts and the
Commission, the Administrative Law Judge issued Order 23, Initial Order Denying in
Part AT&T‟s Amended Motion for Summary Determination and Granting T-Netix‟s
Motion and Amended Motion for Summary Determination (Order 23). That Order
concludes AT&T was an OSP during the relevant time period, T-Netix was not an
OSP, and the Commission should schedule a prehearing conference to address the
procedural steps to address the issue of whether AT&T violated Commission rules.
7
AT&T filed a petition for administrative review of Order 23 on May 11, 2010. On
May 21, 2010, T-Netix and the Complainants filed answers opposing AT&T‟s
petition. The Complainants also filed their own petition for administrative review of
certain conclusions and findings in Order 23.
Superior Court uses. To minimize potential confusion, we will refer to these entities as OSPs in
this Order.
Primary jurisdiction is a doctrine that requires issues within an agency‟s special expertise be
decided by the appropriate agency. E.g., Tenore, v. AT&T Wireless Servs., 136 Wn.2d 322, 345,
962 P.2d 104 (1998).
5
6
7
Ex. A-3 at 2.
See WAC 480-120-141 (1991) and (1999). For ease of reference, copies of the applicable
Commission rules as they were in effect in 1991 and in 1999 are included in Appendix A to this
Order.
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PAGE 5
8
On May 26, 2010, AT&T filed a reply in support of its petition and in opposition to
the Complainants‟ petition, and T-Netix filed its response to the Complainants‟
petition. On June 1, 2010, Complainants filed a motion for leave to reply to AT&T‟s
response to the Complainants‟ petition, and T-Netix filed a motion to strike AT&T‟s
response or in the alternative to reply to that response. AT&T filed a response to each
of these motions on June 7, 2010, and on June 8, 2010, T-Netix filed a motion for
leave to file a reply in support of its prior motion.
9
The Commission reopened the record and issued Bench Requests Nos. 7-10 to the
parties on October 6, 2010. The parties filed responses to those requests on October
20, 2010. On October 27, 2010, AT&T and the Complainants filed responses to other
parties‟ Bench Request responses, and T-Netix filed a motion to strike a portion of the
Complainants‟ response to Bench Request No. 7. On November 3, 2010,
Complainants filed their response to T-Netix‟s motion to strike, and T-Netix filed a
motion for leave to reply to Complainants‟ response to other parties‟ bench request
responses. On November 9, 2010, T-Netix filed a motion for leave to file a reply in
support of its motion to strike. On November 10, 2010, AT&T filed a motion for
leave to reply to Complainants‟ response to T-Netix‟s motion to strike. Also on
November 10, 2010, Complainants filed a response to T-Netix‟s motion for leave to
file a reply in Complainants‟ response to other parties‟ bench request responses. On
November 17, 2010, Complainants filed a response to AT&T‟s motion for leave to
reply to Complainants‟ response to T-Netix‟s motion to strike.
10
On November 30, 2010, the Commission issued Bench Requests Nos. 11-15 to
AT&T and T-Netix. Those parties filed responses on December 8, 2010. On
December 15, 2010, Complainants, AT&T, and T-Netix filed responses to these
Bench Request responses, and AT&T filed a supplemental response to Bench Request
No. 13. On December 20, 2010, AT&T filed a motion to file a surreply to the replies
to AT&T‟s response to Bench Request Nos. 12, and T-Netix filed motions to reply to
(1) Complainants‟ replies to AT&T‟s and T-Netix‟s Bench Request responses; (2)
AT&T‟s supplemental response to Bench Request No. 13, and (3) AT&T‟s reply to
T-Netix‟s response to Bench Request No. 14. Complainants filed their opposition to
AT&T‟s December 20 motion on December 29, 2010.
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ORDER 25
PAGE 6
DISCUSSION
11
Complainants allege that they and a putative class of other consumers received
operator-assisted collect calls between June 20, 1996, and December 31, 2000, from
the Washington State Reformatory (a/k/a Monroe Correctional Complex), Airway
Heights, McNeil Island Penitentiary, and Clallam Bay state correctional facilities
(collectively Correctional Facilities) and were not given the option of hearing rate
quotes before accepting the collect calls. Complainants further allege the
Respondents were the OSPs for these calls and thus each is responsible for violation
of the Commission‟s regulations requiring disclosure of the rates applicable to the
calls. The Complainants make these allegations in a complaint filed with the
Commission as a result of a referral from the Superior Court in which the Court seeks
a Commission response to two questions: (1) whether AT&T or T-Netix were OSPs
during the relevant time period, and (2) if so, whether they violated the Commission
regulations governing OSPs. In response, we find that (1) AT&T was the OSP for the
intrastate calls placed from the Correctional Facilities for which AT&T provided the
operator-assisted toll service, and (2) AT&T violated Commission regulations
requiring OSPs to disclose the rates for those calls.
A. AT&T was the OSP for the Intrastate Calls Placed from the Correctional
Facilities for which AT&T Provided the Operator-Assisted Toll Service.
1. An OSP is the Entity with the Direct Business Relationship with the
Consumers of Operator Services.
12
We first examine the history and meaning of the Commission‟s definitions of
“operator services” and OSPs. From 1991 to 1999, WAC 480-120-021defined an
OSP as:
any corporation, company, partnership, or person other than a local
exchange company providing a connection to intrastate or interstate
long-distance or to local services from locations of call aggregators.
The term „operator services‟ in this rule means any intrastate
telecommunications service provided to a call aggregator location that
includes as a component any automatic or live assistance to a consumer
to arrange for billing or completion, or both, of an intrastate telephone
call through a method other than: (1) automatic completion with billing
to the telephone from which the call originated, or (2) completion
DOCKET UT-042022
ORDER 25
PAGE 7
through an access code use by the consumer with billing to an account
previously established by the consumer with the carrier.8
13
The Commission modified WAC 480-120-021 in 1999. The modified rule no longer
included the exemption of local exchange carriers (LECs) from the definition of an
OSP, but the remainder of the language largely remained unchanged. Both versions
of the rule defined an OSP as an entity “providing a connection to intrastate or
interstate long-distance or to local services from the locations of call aggregators,”
and defined “operator services” as a service provided to such locations “that includes
as a component any automatic or live assistance to a consumer to arrange for billing
or completion, or both, of an intrastate telephone call” except through certain
specified methods.
14
AT&T interprets WAC 480-120-021 to establish the OSP as the company that
provided the physical “connection” to the local or long distance service used to
complete the calls. Order 23 accepted this view of the rule and concluded that AT&T
owned the equipment used to provide that “connection” and thus was the OSP. We
do not adopt this interpretation of the rule. Rather, we conclude that the OSP is the
entity that has the direct business relationship with the consumer of the operator
services, regardless of which company owns the physical facilities used to provide
those services.
15
The definition of “OSP” in WAC 480-120-021 is virtually identical to the definition
of “alternate operator services company” in RCW 80.36.520. The statute defines that
term as “a person providing a connection to intrastate or interstate long-distance
services from places including, but not limited to, hotels, motels, hospitals, and
customer-owned pay telephones.” This language requires that an OSP be “providing
a connection” but does not specify to whom the OSP is providing that connection.
Viewed in the light of the context and intent of both the statute and the Commission
rule, we interpret this language to establish that the OSP is the entity that provides the
connection to the consumers who are the parties to the call, particularly the called
party who accepts and pays for the service or “connection” provided.
8
WAC 480-120-021 (1991).
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ORDER 25
PAGE 8
16
The statute includes an expression of legislative intent, stating 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.”9 The legislature directed the
Commission to require 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.”10 The legislature was expressly concerned with
companies that provide services to consumers without disclosing to those consumers
the services the companies are providing and the rates those companies are charging.
17
The Commission‟s rules reflect that concern. The Commission consistently has
defined “operator services” as “any intrastate telecommunications service provided to
a call aggregator location that includes as a component any automatic or live
assistance to a consumer to arrange for billing or completion, or both, of an intrastate
telephone call” except under certain circumstances.11 A “consumer” for purposes of
the OSP rules is “the party initiating and/or paying for a call using operator
services.”12 Operator services by definition are provided to consumers, and to state
the obvious, an OSP provides operator services.13 An OSP, therefore, is an entity that
provides to consumers a connection to intrastate or interstate long distance or to local
services from locations of call aggregators, and that entity must disclose to those same
consumers both the service it is providing and the rates charged for the service and
the call.
9
RCW 80.36.510 (emphasis added).
10
RCW 80.36.520 (emphasis added).
11
WAC 480-120-021 (1991 & 1999) (emphasis added).
WAC 480-120-141(1)(c) (1999). The prior version of the rule similarly defined “consumer” as
“the party initiating and/or paying for an interexchange or local call.” WAC 480-120-141(3)
(1991).
12
AT&T correctly observes, “By defining „operator services‟ within the definition of an OSP, the
WUTC recognized that, under pure common sense, an Operator Service Provider is a provider of
operator services.” Ex. A-22HC ¶ 13 (emphasis in original).
13
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PAGE 9
18
This consumer-centric approach to determining which company is responsible for
complying with our rules governing OSPs is fully consistent with the Commission‟s
treatment of other telecommunications service providers. Resellers of local or long
distance services, for example, are the service providers for the consumers of that
service, even though the underlying facilities – or the entire service itself – are
physically provisioned by another company. As the service provider, the reseller, not
the company that owns and operates the physical infrastructure used to provide the
service, has the direct business relationship with its customers and is responsible for
all billing of, notifications to, and other communications with, the end users of that
service, as well as for complying with all Commission rules governing the provision
of those services to consumers.
19
We see no reason to identify OSPs any differently. The objective of the statute and
Commission rules governing OSPs is to ensure that consumers are aware that they are
using operator services and know or can request the rates they are paying for calls
using those services. As with other telecommunications services, the company that
charges, communicates with, and otherwise is identified as the service provider to, the
consumer is obligated to make such disclosures.
20
Rather than focus on which company had the direct business relationship with the
consumers of the operator services, the parties have disputed whether AT&T or TNetix owned or controlled the equipment or facilities that were used to provide those
services. That dispute is largely irrelevant. A company is no more an OSP solely
because it owns and maintains some or all of the equipment used to provision
operator services than a company could be considered a local exchange carrier simply
because it supplies the switch used to originate and terminate telephone calls. Only
the company that has the direct business relationship with the consumers who use
operator services is an OSP.
21
T-Netix recognizes this requirement even while fully engaging in the debate over
which company owned the underlying facilities. T-Netix‟s expert witness, Robert
Rae, provided testimony that, based on “common practice,” the term “connection” in
the Commission‟s rules refers to the service provided to the consumer using and
paying for that service:
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PAGE 10
I think the best way I can describe it is in the general sense of the
carrier that is the – basically integrating the services of
telecommunications, which could mean anything from purchasing
hardware, purchasing software, procuring network connectivity and
more importantly, even if they aren‟t doing any of those things, at a
higher order, providing the face to the customer in branding the
calls, branding the billing, taking the responsibility for those
elements being pulled together to deliver service to the customer
and, therefore, representing to the customer that complex process
behind it to make sure that the customer is serviced
appropriately.14
T-Netix contended that AT&T provided these functions for the consumers of the
operator-assisted toll services that AT&T provided, and thus AT&T was the OSP:
T-Netix supplied equipment and services to AT&T; the LECs and
AT&T provided the long-distance services of which operator services
were a component. As such, under this Commission‟s precedent,
AT&T was reselling the services it purchased from T-Netix to its own
end users (call recipients), which makes AT&T and not T-Netix the
common carrier for the operator services at issue.15
22
Complainants also take issue with the conclusion that the OSP is the owner of the
equipment used to provide the service and suggest that the company responsible for
providing operator services should be considered the OSP.16 By “responsible,” the
Complainants mean the company with a contractual obligation to the DOC to make
operator services available. The DOC, however, was the “customer,” not the
“consumer” of the operator services at issue in this proceeding.17 The customer does
14
Ex. A-24HC at 172, line 23 through 173, line 10 (emphasis added). Although the quoted
language is in a transcript that is marked “highly confidential” in its entirety, we find no basis for
treating this language as highly confidential and accordingly do not afford it such treatment.
Ex. T-25 ¶ 25 at 15. T-Netix further notes, “In its 1998 Order adopting the verbal rate quote
requirement, the Commission made clear that it is the OSP serving end users and holding itself
out to the public, rather than a carrier or other service provider whose services the OSP is
reselling, that is responsible for regulatory compliant [sic].” Id., n.11.
15
E.g., Complainants 1) Answer to AT&T‟s Petition for Administrative Review and 2) Petition
for Administrative Review ¶¶ 24-40.
16
Commission rules distinguish “consumers” from “customers” of operator services. The
“customer” is “the call aggregator or pay phone service provider, i.e., the hotel, motel, hospital,
17
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PAGE 11
not use or purchase the operator services. The consumers do. The contractual
relationship the DOC had with AT&T and T-Netix, while potentially one indication
of which entity is the OSP, does not in itself determine whether either Respondent
was an OSP.18 The Complainants nevertheless appear to agree that the OSP is the
company that provides operator services to the persons who use that service.
23
AT&T, on the other hand, adheres to its view that the facilities owner is the OSP
based on AT&T‟s interpretation of the word “connection” in the Commission rule.
AT&T‟s primary argument is that the language of the rule identifies the OSP as the
entity that provides the connection from the call aggregator location to the local or toll
service provider, which necessarily, in AT&T‟s view, is the physical link between
those locations. As we discussed above, however, the proper focus is on the entity
“providing” the connection to the consumer of the service, regardless of which
company supplies the physical facilities used to make that connection.
24
AT&T contends that such an interpretation of the rule “results in complete ambiguity
as to who actually is the OSP.”19 We find no such ambiguity. To the contrary,
defining the OSP as the company that has the direct business relationship with the
consumer is clear and unambiguous and avoids the protracted disputes over the nature
and ownership of the network facilities used to provide the service that have been
litigated so extensively in this proceeding.
correctional facility/prison, or campus contracting with an OSP for service.” WAC 480-120141(1)(c) (1999) (emphasis added); accord WAC 480-120-141(3) (1991); see WAC 480-120-021
(1991) (defining “call aggregator” as “a person who, in the ordinary course of its operations,
makes telephones available for intrastate service to the public or to users of its premises,
including but not limited to hotels, motels, hospitals, campuses, and pay telephones”); accord
WAC 480-120-021 (1999) (revising the prior rule remove the phrase “for intrastate service” and
to add “for telephone calls using a provider of operator services” after “premises”). The
customer, in conjunction with the OSP, has certain specified obligations to the consumers who
use the telephones on the customer premises.
18
AT&T correctly notes that prior to the period at issue in this proceeding, the Commission
amended its definition of an OSP to delete the provision stating that an OSP is the entity that
contracts with a call aggregator to provide operator services to its clientele. Ex. A-22HC ¶ 28.
19
Id. ¶ 16 at 12.
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25
AT&T nevertheless asserts that such an approach “essentially equates the OSP with
the local or long-distance provider, which would be the common carrier for the
call. . . . Had the WUTC wanted that outcome, it would not have defined an OSP as
the entity providing the connection to local or long-distance services.”20 That
argument, however, ignores the definition of operator services as “intrastate
telecommunications service provided to a call aggregator location that includes as a
component any automatic or live assistance to a consumer to arrange for billing or
completion, or both, of an intrastate telephone call.”21 The Commission rules thus
expressly contemplate that the OSP and the local or toll service provider may be one
and the same.22 Neither logic nor the Commission rule precludes the same entity
from providing local and long-distance services as well as the connection between
those services and a call aggregator location.
26
AT&T similarly maintains that an OSP cannot be the company that bills the consumer
because the Commission “repeatedly recognized that the OSP may very well be
separate from the entity that billed the call.”23 AT&T claims that rule provisions
requiring OSPs to provide call detail to the billing company would be unnecessary
and nonsensical if the OSP were the company that bills for the services. AT&T
misunderstands our rules in this regard.
27
The Commission rules recognize that the OSP may not directly bill consumers largely
because in 1991 when the Commission first promulgated the rule, the LECs billed
their customers not just for the LECs‟ services but for toll and related services that
other carriers provided to those same consumers. Even after the LECs discontinued
billing on behalf of other carriers, some companies have continued to use a billing
agent to bill consumers in the companies‟ names, rather than undertake that
responsibility themselves. The Commission rules were designed to ensure that any
OSP that used a LEC or other billing agent provide sufficient detail to enable accurate
billing. Whether an entity bills consumers directly or through another company,
however, the entity that actually charges consumers for the services provided is the
20
Id. ¶ 26 (emphasis in original).
21
WAC 480-120-021 (1991) (emphasis added).
22
Indeed, as discussed below, the undisputed record evidence demonstrates that the toll service
provider for the collect calls at issue in this proceeding was also the OSP.
23
Ex. A-22HC ¶ 46 at 28.
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OSP, regardless of which company collects or transmits the call detail for billing
purposes.
28
We conclude under RCW 80.36.520 and the rules promulgated pursuant to that statute
that an OSP is the entity with the direct business relationship with the consumers who
use the operator services, not necessarily the company that owns the facilities used to
provision that service.
2. The Undisputed Record Evidence Demonstrates that AT&T Was the
OSP for the Intrastate Operator-Assisted Toll Calls AT&T Carried.
29
We determine which entity is the OSP by looking at indicia of a direct business
relationship with the consumers using the operator services. Such indicia include
evidence that the company holds itself out to consumers as the service provider, such
as through “providing the face to the [consumer] in branding the calls, branding the
billing, [and] taking the responsibility for those elements being pulled together to
deliver [operator] service to that [consumer].” 24
30
The parties in their prior submissions focused on which company owned and
maintained the automated operator services platform, rather than on the extent to
which AT&T or T-Netix had any direct business relationship with the consumers who
used the operator services at issue in this proceeding. Accordingly, the Commission
reopened the record and issued Bench Requests numbers 7-15 to obtain additional
evidence. The information the parties provided in response to those requests and in
reply to other parties‟ responses, in conjunction with evidence previously admitted
into the record, provides sufficient undisputed facts to determine whether AT&T or
T-Netix was an OSP in conjunction with the collect calls from the Correctional
Facilities during the time period at issue in this proceeding.
31
As an initial matter, AT&T objects to these Bench Requests “to the extent that they
are addressed to matters other than identifying which party actually connected the
prison collect calls received by the Complainants at issue in this proceeding to local
or long distance providers.”25 AT&T “suggests that deviating from the express OSP
24
Ex. A-24HC at 173, lines 5-8.
AT&T‟s Responses to October 6, 2010 Bench Requests at 2; accord AT&T‟s Responses to the
November 30, 2010 Bench Requests.
25
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definition raises concerns regarding due process, fundamental fairness, prior notice,
improper jurisdiction, and other constitutional and legal issues.”26
32
We overrule AT&T‟s objections. As explained above, the Commission rejects the
view that WAC 480-120-021 ever defined an OSP on the basis of which entity owns
or maintains the physical connection to the local or long-distance provider. The
Bench Requests address the factual issues at the heart of the appropriate inquiry
required in this proceeding, and we find no deviation from the express definition of
“OSP” or any legitimate legal concerns in obtaining the information we requested.
We therefore admit into the record the responses to Bench Requests Nos. 7-15 and the
responses to those Bench Request responses.27
33
The Bench Request responses largely confirm the evidence that was previously in the
record. T-Netix provided copies of Complainants‟ bills, and those bills demonstrate
that Verizon and Qwest billed Complainants for the operator-assisted collect calls
those companies carried. The Verizon bills have a separate category for “Operator
Assisted Calls,” which include charges for prison-originated collect calls. The Qwest
bills identify specific calls as “collect” from a correctional institution. Neither
company‟s bills reflect a separate charge for operator services or expressly identify
Verizon or Qwest as the provider of operator services. The applicable Commission
rule, however, expressly defined “operator services” as “any intrastate
telecommunications service provided to a call aggregator location that includes as a
component any automatic or live assistance to a consumer to arrange for billing or
completion, or both, of an intrastate telephone call.”28 Verizon and Qwest each
included operator services as a component of its operator-assisted toll service and
imposed a single charge for this service.
34
Both Verizon and Qwest, moreover, acknowledged that they provided operator
services to correctional institutions when each sought (and received) a temporary
waiver of the Commission rule requiring OSPs to disclose rate information as part of
26
Id.
As we explain below, we deny T-Netix‟s motion to strike a portion of Complainants‟ response
to Bench Request No. 7. We also deny the motions for surreplies to Bench Request response
replies, all of which are extraneous or merely repeat the parties‟ prior arguments and positions.
27
28
WAC 480-120-021 (1991 & 1999) (emphasis added).
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any collect call.29 This undisputed record evidence is also fully consistent with the
DOC-AT&T Agreement, which states that Verizon and Qwest “shall also provide
local and intraLATA telephone service and operator service to the [Verizon and
Qwest] Public Telephones.”30
35
Based on the undisputed record evidence, we find that Verizon and Qwest provided
operator services as a component of the intrastate toll telecommunications services
they provided from the public telephones located at the Correctional Facilities
between June 20, 1996, and December 31, 2000. These companies, however, were
not “OSPs” or required to make rate quotes available under our rules in effect during
the relevant time period because they either were excluded from the definition of
“OSP” or received temporary waivers of this OSP requirement.
36
Verizon and Qwest, however, were not the only operator-assisted toll providers
carrying collect calls from the Correctional Facilities during that time. In response to
Bench Request No. 7, Complainants provided excerpts of two AT&T bills that
include call detail for “Operator Handled – Domestic” collect calls to a Seattle
consumer from the correctional facilities in Gig Harbor and Spokane in early 2000.
These bills, like the Verizon and Qwest bills, show that AT&T billed consumers for
operator services as a component of the intrastate collect toll calls it carried from the
Correctional Facilities.31 AT&T concedes as much in response to Bench Request No.
13, stating “with respect to operator-assisted collect calls placed from the four
correctional institutions at issue in this proceeding, for the period between June 20,
1996 and December 31, 2000, AT&T provided operator-assisted („0+‟) interLATA,
intrastate service.” AT&T also does not dispute that the automated operator
29
Exs. A-13 through A-15.
30
Ex. A-8 § 4.A & C.
Indeed, the AT&T bill notes, “An Operator Service Charge will apply when the customer has
the capability of dialing the called number, but elects to have the operator dial the called
number.” The tariff excerpts AT&T provided in response to Bench Request No. 13 confirm that
AT&T bills consumers a single charge for all toll calls that include operator assistance. AT&T,
like Verizon and Qwest, thus included charges for operator services in its rates for operator
assisted collect calls from inmates at the Correctional Facilities because the calling party did not
have the capability to dial the called number.
31
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assistance platform in place at the correctional facilities branded the operator-assisted
calls AT&T carried as AT&T calls.32
37
T-Netix moved to strike or exclude the AT&T bill excerpts Complainants provided.
T-Netix contends that these are bills to a third party, not to either of the
Complainants, and thus the bill excerpts are untimely, irrelevant, and an improper
attempt to reopen the record and expand the scope of this case to include additional
parties.33 Complainants respond that the Commission reopened the record and that
this information is responsive to Bench Request No. 7.
38
We deny T-Netix‟s motion to strike or exclude these bill excerpts.34 We agree with
Complainants that the Commission reopened the record for receipt of additional
evidence, and this document is responsive to Bench Request No. 7. Nor do we find
that bills to consumers other than the Complainants are irrelevant or beyond the scope
of our jurisdiction pursuant to the Superior Court‟s referral. The Court asked the
Commission to determine “whether AT&T or T-Netix were OSPs under the contracts
at issue,” which is a broader question than whether either company provided operator
services to the Complainants. Indeed, we make no findings on the latter issue,
leaving that determination to the Superior Court.35 Our charge is to determine
whether AT&T or T-Netix was an OSP for collect calls placed during the relevant
32
Ex. T-25 ¶ 29.
AT&T seeks leave to make similar arguments in a Reply to Complainants‟ Response to TNetix‟s Motion to Strike. The Commission‟s procedural rules, however, do not authorize replies
to evidentiary motions or even contemplate such a reply from a party who is not the original
moving party. AT&T could have filed its own motion to strike or joined T-Netix‟s motion.
AT&T did neither. We deny AT&T‟s motion for leave to file its proffered reply.
33
We also deny T-Netix‟s and AT&T‟s motions for leave to reply to Complainants‟ response to
this motion. The proffered replies are largely repetitive of the arguments both parties have made
in prior filings and provide no assistance to the Commission in rendering a decision on the merits
of that motion. In addition, AT&T‟s proffered reply raises issues that AT&T should have raised
in its response to Complainants‟ response to Bench Request number 7. Accordingly, we have not
considered either proposed reply.
34
35
The parties dispute whether Ms. Herival accepted an interLATA collect call in Seattle from the
Airway Heights correctional facility near Spokane, with each side providing declarations in
support of its position. We make no finding on this issue, both because it is a contested factual
issue that cannot be resolved through summary determination and because the Superior Court is
the appropriate forum for resolving such issues.
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time period from the Correctional Facilities. Bills to any consumers who accepted
those calls are relevant to that inquiry.
39
We similarly disagree with AT&T‟s contention that our consideration of billing
information “raises concerns about due process, fundamental fairness, inadequate
notice, and the lack of opportunity to be fully heard.”36 T-Netix first asserted that an
OSP is the company that interfaces with the consumer of operator services –
including billing for those services – and AT&T fully responded to that position.37
AT&T also had the opportunity to respond to Bench Request Nos. 7 and 13 and to
reply to other parties‟ responses. No party, including AT&T, questions the accuracy
of the bill excerpts the Complainants provided, and AT&T provided the response to
Bench Request No. 13. AT&T‟s interpretation of the rule governing OSPs differs
from that of the Commission, but that difference does not constrain us from making
findings on undisputed facts pursuant to the correct interpretation.
40
AT&T also argues that Verizon and Qwest had the express responsibility under the
DOC-AT&T Agreement to provide operator services from the public telephones they
provided, while the Agreement imposes no such duty on AT&T. As discussed above,
however, the business relationship with the consumer, not a contract between a
service provider and the call aggregator, determines whether a company is an OSP
under Commission rules. Even to the extent that such a contract can be one indication
of such a relationship, the entire DOC-AT&T Agreement is not included in the
record. The Agreement expressly incorporates the DOC‟s request for proposal for a
telephone system and AT&T‟s responsive proposal,38 but AT&T failed to provide
those documents.39 We cannot accept AT&T‟s argument that the Agreement does not
obligate AT&T to provide operator services when the entire Agreement is not before
us – particularly when an amendment to the Agreement contemplates that AT&T
would be responsible for providing operator services under certain circumstances.40
36
AT&T‟s Response to Bench Request No. 13.
37
Ex. A-22HC ¶¶ 16-17, 26-27 & 44-46.
38
Ex. A-8 §§ 1 & 24.
AT&T stated in response to Bench Request No. 11 that “AT&T has not located these
documents in its possession, custody, or control.”
39
Ex. A-8, Amendment No.2, Attachment B (“In the event AT&T is unable to provide [Inmate
Calling Service (ICS)] as of the effective date of this Agreement, then AT&T will provide its
40
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41
We further observe that AT&T‟s interpretation of the Agreement conflicts with the
undisputed record evidence. The bills from AT&T, Verizon, and Qwest, as well as
AT&T‟s tariff provisions, consistently include operator services as a component of
the intrastate service provided at the Correctional Facilities and billed in a single
charge per call for “operator-assisted” or “operator handled” toll service. There is no
evidence in the record that any company imposed a charge solely for operator
services, either to a consumer or to the toll service provider, despite the
Commission‟s request for such information.41 AT&T thus cannot reasonably contend
that Verizon and Qwest not only provided and billed for operator services as part of
the toll service they provided consumers, but those companies provided the operator
services – without compensation or attribution – used in connection with AT&T‟s
operator-assisted toll service. AT&T, moreover, offers no explanation for why it
would charge consumers for “operator handled” toll service if AT&T was not also
providing operator service as a component of those toll services. AT&T‟s position
simply is not credible.
42
Finally, AT&T maintains that T-Netix, not AT&T, had the direct contact with the
consumers of the operator services through the facilities those consumers physically
used to connect to AT&T‟s toll service. This is the case in all telecommunications
resale circumstances. The company that provides the actual service has direct
physical contact with the subscribers, but the reseller is the company the consumer
identifies as the service provider. AT&T identified itself as the service provider
through its branding of, and bills for, the operator-assisted collect calls. There is no
evidence that any consumers knew or had reason to know that T-Netix was involved
in those calls. AT&T, not T-Netix, had the direct business relationship with those
consumers.
43
Based on the undisputed record evidence, we find that AT&T provided operator
services as a component of the operator-assisted intrastate toll telecommunications
services it provided from the public telephones located at the Correctional Facilities
standard live operator services to connect the inmate‟s call to the called party until it is able to
provide ICS.”). AT&T responded to Bench Request No. 12 that to the best of AT&T‟s
knowledge, the company did not provide its standard live operator services to any of the
Correctional Facilities.
41
See Bench Request No. 7.
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during the time period at issue in this proceeding. AT&T, therefore, was the OSP for
these calls.
44
There is no evidence in the record, however, that T-Netix billed consumers for
operator services or operator-assisted calls, was identified to consumers as the
provider of those services, or otherwise had any direct business relationship with the
consumers of the collect calls at issue in this proceeding. To the contrary, T-Netix
asserts that it had no such relationships,42 and no party offered contradictory evidence.
Accordingly, we agree with the conclusion in Order 23 that T-Netix was not the OSP
for these calls.43
3. AT&T Was Not Exempt from the Definition of “OSP.”
45
AT&T claims that it could not have been an OSP for any of the collect calls at issue
between 1997 and 1999 because AT&T was registered to provide local exchange
services and the version of WAC 480-120-021 in effect at that time expressly
excluded LECs from the definition of OSPs.44 We disagree.
46
Order 23 concluded that the LEC exemption from the OSP definition in the 1991 rule
does not apply to AT&T, a carrier that was registered as both an interexchange
carrier45 and a LEC beginning in 1997,46 because AT&T was not acting as a LEC in
connection with the collect calls at issue. The order observes that in the rule adoption
order, the Commission stated that the reason for the LEC exemption in WAC 480120-021 was that “[c]onsumers often expect that they are using their LEC when they
use a pay phone; requirements that apply to [a] non-LEC compan[y] to inform the
42
T-Netix Responses to Bench Request Nos. 7 & 14.
43
This conclusion, however, is based on the record before the Commission and should not be
interpreted to preclude a finding in the Superior Court that T-Netix was an OSP if evidence is
produced in the judicial proceeding sufficient to demonstrate that T-Netix had a direct business
relationship with any consumers who accepted collect operator-assisted calls from any of the
Correctional Facilities during the relevant time period.
AT&T‟s argument is limited to this time period because AT&T was not registered as a LEC
prior to 1997, and the Commission amended the rule in 1999 to remove the LEC exemption.
44
45
See AT&T‟s Response to Bench Request No. 2 at 1.
46
Id. at 2.
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consumer that it is not the LEC are reasonable.”47 Order 23 concluded, “AT&T was
not acting as a LEC in the correctional facilities in question and the consumers would,
therefore, have no reason to believe that they were using AT&T‟s services absent
disclosure.48
47
AT&T seeks Commission review of this determination. AT&T contends that the rule
expressly states that LECs are excluded from the definition of “OSP,” and AT&T was
registered as a LEC. The rule does not state that a LEC is not an OSP only if the LEC
is acting as a LEC, and serious due process concerns result, according to AT&T, if the
Commission now interprets the rule to include additional conditions that are not part
of its plain language.49
48
AT&T also observes that in addition to the justification quoted in Order 23, the
Commission explained when it adopted the rule in 1991 that “[u]nlike LECs, [OSPs]
can be seen as entering and [exiting] markets at will.” AT&T argues that the
Commission recognized that OSPs were less stable than LECs and thus required
greater regulation. AT&T maintains that if an applicant for registration as a
telecommunications company “has sufficient financial resources and stability to
qualify as a LEC, then the justification for giving the exemption is achieved,
regardless of what kind of traffic the applicant might be handling at any particular
time.” 50
49
We affirm Order 23 on this issue. As discussed above, both the legislature‟s and the
Commission‟s concern with OSPs is to ensure that consumers know the identity of
the company providing the service they are using and the rates they are being
charged. The 1991 rule adoption order demonstrates that the Commission initially
exempted LECs from the definition of OSPs primarily because consumers either
assumed or were already aware that the LEC serving that area provided the operator
services.51 The intent of the rule, therefore, was to exclude LECs only to the extent
47
Id. at 107.
48
Order 23 ¶ 121.
49
AT&T Petition for Administrative Review ¶¶ 39-42.
50
Id. ¶ 43.
51
The Commission also expressed the concern that OSP rates are often higher than the rates
LECs charged for operator services. We observe that the rates reflected in AT&T‟s bills for
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that they were providing the local exchange service as well as the operator service for
the calls placed from the call aggregator location.
50
AT&T‟s arguments to the contrary ignore the historic context of the 1991 rule. Only
incumbent LECs (ILECs) were LECs when the exemption was included in the rule.
Indeed, the Commission at that time interpreted Washington statutes to grant
exclusive service territories to ILECs and refused to authorize any other company to
provide competing local exchange service.52 There was no need to state in the rule in
1991 that LECs were not OSPs if they also provided the local exchange service used
in connection with operator-assisted calls because those were the only circumstances
that existed when the rule was enacted. Not surprisingly, the Commission revised the
rule to remove the LEC exemption shortly after competitive LECs (CLECs) such as
AT&T began entering the local exchange market. CLECs, too, could enter and exit
markets at will and as competitively classified companies were subject to reduced
regulation of their service rates, terms, and conditions.
51
Nor do we give any credence to AT&T‟s claim that interpreting our rule as we have
would deprive AT&T of settled expectations in its status as a LEC in violation of due
process. AT&T presented no evidence that it was aware of the exemption while it
was in effect or that AT&T relied in any way on its status as a LEC to fulfill its
obligations with respect to collect calls from the Correctional Facilities. Indeed,
AT&T entered into the initial contract with the DOC long before AT&T registered as
a CLEC, and none of the amendments to the contract in the record reference AT&T‟s
subsequent registration to provide local exchange services, much less indicate that
registration had any impact whatsoever on AT&T‟s rights or responsibilities with
respect to operator services.
operator-assisted toll service included in Exhibit A to Complainants‟ response to Bench Request
No. 7 are significantly higher – in some cases several times higher – than the rates in the Verizon
and Qwest bills for comparable calls.
52
See In re Consolidated Cases Concerning the Registration of Electric Lightwave, Inc., and
Registration and Classification of Digital Direct of Seattle, Inc., 123 Wn.2d 530, 869 P.2d 1045
(1994). Congress rendered the issue moot in the Telecommunications Act of 1996 when it
opened all local exchange markets to competition. See 47 U.S.C. §§ 251, et seq.
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52
PAGE 22
Because AT&T was not the provider of local exchange services at any of the
Correctional Facilities, AT&T cannot claim the LEC exemption from the
Commission rules governing OSPs.
B. AT&T Violated Commission Rules Requiring OSPs to Make Rate Quotes
Available to Consumers of Operator-Assisted Collect Calls.
53
The Superior Court‟s second question to the Commission is whether any Commission
rules were violated during the relevant time frame if AT&T or T-Netix was an OSP.53
Order 23 did not reach that question, concluding that the Administrative Law Judge
had “yet to hear evidence on whether AT&T, as the OSP, violated our disclosure
regulations.”54 We disagree with this aspect of Order 23 and find sufficient
undisputed evidence in the record to enable us to respond to the Court‟s question at
this time.
54
The Commission rules in effect between June 20, 1996, and December 30, 2000,
required an OSP to make available rate information to consumers of operator-assisted
calls. Specifically, the rule in effect until 1999 stated that during each such call,
The [OSP] shall immediately, upon request and at no charge to the
consumer, disclose to the consumer:
(A) A quote of the rates or charges for the call, including any
surcharge;
(B) The method by which the rates or charges will be collected;
and
(C) The methods by which complaints about the rates, charges, or
collection practices will be resolved.55
The revised rule that became effective in 1999 was even more specific:
53
In the context of this proceeding and the case before the Court, we construe this question as
asking whether either company violated the Commission rules requiring OSPs to disclose rate
quotes to consumers of operator-assisted calls.
54
Order 23 ¶ 129.
55
WAC 480-120-141(5)(a)(iv) (1991).
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Verbal disclosure of rates. Before an operator-assisted call from an
aggregator location may be connected by a presubscribed OSP, 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 message must precede any further
verbal information advising the consumer how to complete the call,
such as to enter the consumer‟s calling card number. 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. After hearing an OSP‟s message, a consumer may waive
their rights to obtain specific rate quotes for the call they wish to make
by choosing not to press the key specified in the OSP‟s message to
receive such information or by hanging up. The rate quoted for the call
must include any applicable surcharge. Charges to the user must not
exceed the quoted rate.56
55
All toll providers, including AT&T, used the P-III Premise software platform to
provide automated operator services in conjunction with the operator-assisted toll
services they provided at the Correctional Facilities between June 20, 1996, and
December 31, 2000.57 Indeed, the DOC-AT&T contract required the use of such an
automated operator services platform,58 and AT&T confirmed that it did not provide
its standard live operator services that the contract required if an automated platform
was not in place.59 No party contests these facts.
56
Similarly, no party disputes that the P-III Premise software platform did not make rate
information available to consumers. The record includes a detailed call flow of an
inmate-initiated operator-assisted collect call from the Correctional Facilities, and at
no time during that call flow is there any indication that either the inmate or the party
receiving the call was notified of the ability to obtain a quote of the rates or charges
for that call.60 Correspondence between AT&T and T-Netix confirms that as of
56
WAC 480-120-141(2)(b) (1999).
57
E.g., AT&T Response to Bench Request No. 12 and record citations therein.
58
Ex. A-8, Amendment No. 2, Attachment B.
59
AT&T Response to Bench Request No. 12.
60
Ex. A-20HC ¶ 14; Ex. A-19HC ¶ 18.
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August 2000, T-Netix had not implemented the platform‟s capability to make rate
quote information available to consumers.61 As late as September 2000, Verizon and
Qwest sought and received temporary waivers of the Commission rule requiring
OSPs to provide rate quotes from automated operator services platforms, specifically
including the platforms in use at state correctional facilities. Verizon and Qwest
explained that the waivers were necessary because the companies were “still in the
process of developing the technology to allow the receiving party but not the
originating party access to verbal rate disclosure.”62
57
The Commission orders granting Qwest and Verizon waivers of WAC 480-120-141
make abundantly clear the Commission‟s position that an OSP violates Commission
rules when it fails to provide rate quotes to consumers of operator-assisted collect
calls.63 Indeed, the Commission in those orders initiated investigations into Verizon‟s
and Qwest‟s compliance with that requirement, and both companies agreed to pay
penalties for the rule violations uncovered as a result of those investigations.64
58
We observe that the revised rule governing rate disclosures promulgated in 1999 uses
different language than the prior rule. The 1999 rule required the OSP not just to
provide a rate quote upon request but to “verbally advise the consumer how to receive
a rate quote.” The 1991 rule mandated only that the OSP provide rate quotes “upon
request and at no charge to the consumer.” This discrepancy is a distinction without a
difference under the circumstances of this case. The P-III Premise software platform
in use at the Correctional Facilities did not advise the consumer how to receive a rate
quote, which is a violation of WAC 480-120-141(2)(b) (1999). That platform,
however, also was not able to receive a consumer request and provide a rate quote,
which violated both the 1999 rule and WAC 480-120-141(5)(a)(iv) (1991). Operator
61
Ex. C-4C.
62
In re Request for a Waiver of Certain Provisions of WAC 480-120-141(2)(b), Docket UT990043, Qwest Amendment to Petition for Waiver at 3, lines 11-12 (September 20, 2000); accord
id., Order Granting Full and Partial Temporary Waiver of WAC 480-120-141(2)(b) at 2 (“The
waiver is necessary in order for the Company to deploy the technology in the correctional
facilities throughout the state.”) (included in the record as Ex. A-14).
63
64
Exs. A-13 through A-15.
WUTC v. Qwest, Docket UT-990043, Commission Order Accepting Settlement Agreement;
WUTC v. Verizon, Docket UT-990401, Commission Order Accepting Settlement Agreement.
Neither order is in the record in this proceeding, but the Commission takes administrative notice
of these orders.
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services provided using the P-III Premise software platform, therefore, failed to
comply with Commission rules both before and after 1999.
59
In sum, Commission rules have consistently required OSPs to make rate quotes
available to consumers of operator-assisted calls. AT&T used the P-III Premise
software platform to provide operator services as a component of the intrastate toll
services AT&T provided to the Correctional Facilities between June 20, 1996, and
December 31, 2000. During that time period, the platform did not provide consumers
of collect calls the ability to request or receive a rate quote for those calls. AT&T,
therefore, violated WAC 480-120-141 each time AT&T used the P-III Premise
software platform in conjunction with an operator-assisted collect call that AT&T
carried.
60
Our conclusion, however, is necessarily a broad one. We have made no attempt to
quantify the number of AT&T‟s violations or to identify any affected calls or
consumers. Such a factual inquiry is beyond the scope of the Superior Court‟s
referral. The court, not the Commission, is the appropriate forum for determining the
extent of AT&T‟s violations and the resulting harm, if any, to Complainants or other
consumers. Accordingly, we leave those determinations to the Superior Court.
FINDINGS OF FACT
61
Having discussed above in detail the evidence received in this proceeding concerning
all material matters, and having stated findings upon issues in dispute among the
parties and the reasons therefore, the Commission now makes and enters the
following summary of those facts, incorporating by reference pertinent portions of the
preceding detailed discussion:
62
(1)
In 1992, AT&T Communications of the Pacific Northwest, Inc., entered into a
contract with the State of Washington Department of Corrections to provide
telecommunication services and equipment for various inmate correctional
institutions and work release facilities.
63
(2)
The original contract was amended in 1995 to require AT&T to arrange for the
installation of call control features for intraLATA, interLATA, and
international calls through its subcontractor, Tele-Matic Corporation.
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64
(3)
In 1995, the Commission recognized the acquisition of Tele-Matic
Corporation by T-Netix, Inc.
65
(4)
The P-III Premise software platform T-Netix installed at the Washington State
Reformatory (a/k/a Monroe Correctional Complex), Airway Heights, McNeil
Island Penitentiary, and Clallam Bay correctional facilities provided call
control services including automated operator services.
66
(5)
AT&T provided operator-assisted toll services to consumers of collect calls
originated by inmates at the Washington State Reformatory (a/k/a Monroe
Correctional Complex), Airway Heights, McNeil Island Penitentiary, and
Clallam Bay correctional facilities between June 20, 1996, and December 31,
2000.
67
(6)
AT&T had the direct business relationship with the consumers of operatorassisted collect calls AT&T carried that were originated by inmates at the
Washington State Reformatory (a/k/a Monroe Correctional Complex), Airway
Heights, McNeil Island Penitentiary, and Clallam Bay correctional facilities
between June 20, 1996, and December 31, 2000.
68
(7)
AT&T was not providing local exchange service or otherwise acting as a local
exchange company in connection with any of the operator-assisted calls
originated by inmates at the Washington State Reformatory (a/k/a Monroe
Correctional Complex), Airway Heights, McNeil Island Penitentiary, and
Clallam Bay correctional facilities between June 20, 1996, and December 31,
2000.
69
(8)
All toll providers, including AT&T, used the P-III Premise software platform
to provide automated operator services in conjunction with the operatorassisted toll services they provided at the Washington State Reformatory (a/k/a
Monroe Correctional Complex), Airway Heights, McNeil Island Penitentiary,
and Clallam Bay correctional facilities between June 20, 1996, and December
31, 2000.
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70
(9)
PAGE 27
During the period from June 20, 1996 through December 31, 2000, the P-III
Premise software platform did not allow the consumer receiving an operatorassisted collect call from an inmate at the Washington State Reformatory
(a/k/a Monroe Correctional Complex), Airway Heights, McNeil Island
Penitentiary, and Clallam Bay correctional facilities to request or obtain the
rates applicable to the call, nor did that platform verbally advise the consumer
how to receive a rate quote.
CONCLUSIONS OF LAW
71
Having discussed above all matters material to this decision, and having stated its
findings, the Commission now makes the following summary conclusions of law,
incorporating by reference pertinent portions of the preceding detailed conclusions:
72
(1)
Summary judgment is properly entered if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
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.
73
(2)
With regard to AT&T‟s and T-Netix‟s Amended Motions for Summary
Determination, none of the nonmoving parties raised questions of material fact
as to whether AT&T or T-Netix were operator services providers for the
operator-assisted collect calls originated by inmates at the Washington State
Reformatory (a/k/a Monroe Correctional Complex), Airway Heights, McNeil
Island Penitentiary, and Clallam Bay correctional facilities between June 20,
1996, and December 31, 2000.
74
(3)
No party raised questions of material fact as to whether there were violations
of Commission rules governing disclosure of rate quotes to consumers of
operator-assisted collect calls originated by inmates at the Washington State
Reformatory (a/k/a Monroe Correctional Complex), Airway Heights, McNeil
Island Penitentiary, and Clallam Bay correctional facilities between June 20,
1996, and December 31, 2000.
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75
(4)
An operator services provider under the Commission rules in effect between
June 20, 1996, and December 31, 2000, was an entity that provided operator
services to consumers. More specifically, the operator services provider was
the entity that had the direct business relationship with the consumer who used
and/or paid for the operator services.
76
(5)
AT&T was the operator services provider for all collect calls from inmates at
the Washington State Reformatory (a/k/a Monroe Correctional Complex),
Airway Heights, McNeil Island Penitentiary, or Clallam Bay correctional
facilities for which AT&T provided operator-assisted toll service between
June 20, 1996, and December 31, 2000.
77
(6)
AT&T was not entitled to the exclusion of local exchange companies from the
definition of an operator services provider under WAC 480-120-021 (1991)
because AT&T did not provide local exchange services in conjunction with
any of the collect calls from inmates at the Washington State Reformatory
(a/k/a Monroe Correctional Complex), Airway Heights, McNeil Island
Penitentiary, and Clallam Bay correctional facilities between June 20, 1996,
and December 31, 2000.
78
(7)
AT&T violated WAC 480-120-141(5)(a)(iv) (1991) for each collect call from
an inmate at the Washington State Reformatory (a/k/a Monroe Correctional
Complex), Airway Heights, McNeil Island Penitentiary, or Clallam Bay
correctional facilities for which AT&T used the P-III Premise software
platform to provide automated operator services in conjunction with the
operator-assisted toll service AT&T provided from June 20, 1996, until the
rule was amended in 1999 by failing to allow the consumers to request or
obtain the rates or charges for the call.
79
(8)
AT&T violated WAC 480-120-141(2)(b) (1999) for each collect call from an
inmate at the Washington State Reformatory (a/k/a Monroe Correctional
Complex), Airway Heights, McNeil Island Penitentiary, or Clallam Bay
correctional facilities for which AT&T used the P-III Premise software
platform to provide automated operator services in conjunction with the
operator-assisted toll service AT&T provided from the effective date of the
rule until December 31, 2000, by failing to verbally advise the consumers how
DOCKET UT-042022
ORDER 25
PAGE 29
to receive a rate quote or allow the consumers to request or obtain the rates or
charges for the call.
ORDER
THE COMMISSION ORDERS:
80
(1)
The Commission denies AT&T Communications of the Pacific Northwest,
Inc.‟s Amended Motion for Summary Determination.
81
(2)
The Commission grants T-Netix, Inc.‟s Amended Motion for Summary
Determination.
82
(3)
The Commission grants or denies all other motions filed since entry of Order
23 as stated in this Order or in Order 24. All motions not expressly granted in
this Order are denied.
83
(4)
The Commission responds to the Superior Court‟s first question as follows:
AT&T was the operator services provider for all collect calls from inmates at
the Washington State Reformatory (a/k/a Monroe Correctional Complex),
Airway Heights, McNeil Island Penitentiary, or Clallam Bay correctional
facilities for which AT&T provided operator-assisted toll service between
June 20, 1996, and December 31, 2000.
84
(5)
The Commission responds to the Superior Court‟s second question as follows:
AT&T violated WAC 480-120-141(5)(a)(iv) (1991) or WAC 480-120141(2)(b) (1999) for each collect call from an inmate at the Washington State
Reformatory (a/k/a Monroe Correctional Complex), Airway Heights, McNeil
Island Penitentiary, or Clallam Bay correctional facilities for which AT&T
used the P-III Premise software platform to provide automated operator
services in conjunction with the operator-assisted toll service AT&T provided
by failing to verbally advise the consumer how to receive a rate quote and/or
failing to allow the consumers to request or obtain the rates or charges for the
call.
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ORDER 25
PAGE 30
85
(6)
The Commission refers further factual inquiry and the ultimate disposition of
Complainants‟ claims to the Superior Court. Because Complainants initiated
this proceeding in response to the Superior Court‟s referral, we direct them to
file this Order with the Court and to serve the Commission with a copy of that
filing.
86
(7)
This docket is closed.
Dated at Olympia, Washington, and effective March 31, 2011.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
JEFFREY D. GOLTZ, Chairman
PATRICK J. OSHIE, Commissioner
PHILIP B. JONES, Commissioner
NOTICE TO PARTIES: This is a Commission Final Order. In addition to
judicial review, administrative relief may be available through a petition for
reconsideration, filed within 10 days of the service of this order pursuant to
RCW 34.05.470 and WAC 480-07-850, or a petition for rehearing pursuant to
RCW 80.04.200 and WAC 480-07-870.
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ORDER 25
PAGE 31
Appendix A
