Prison Phone Justice

No. 57015-3-1
IN THE COURT OF ApPEALS
OF THE STATE OF WASHINGTON
DIVISION I

SANDY JUDD, et ClE.,

Appellants,

v.
AMERICAN TELEPHONE & TELEGRAPH, et aE.,

Respondents.

REPLY BRIEF OF RESPONDENT T-NETIX, INC.

BADGLEY - MULLINS LAW GROUP
Duncan C. Turner, WSBA #20597
Attorneys for Respondent T-NETIX, Inc.
701 Fifth Avenue, Suite 4750
Seattle, Washington 98104
Telephone: (206) 621-6566
Telecopier: (206) 621-9686
Of Counsel:
Glenn B. Manishin
Stephanie A. Joyce
KELLEY DRYE & WARREN LLP
1200 19th Street, NW., Suite 500
Washington, D.C. 20036

TABLE OF CONTENTS

I.

NATURE OF THE CASE ............................................................. 1

II.

SUMMARY OF ARGUMENT ...................................................... 4

III.

COUNTERST ATEMENT OF ISSUES ......................................... 5

IV.

COUNTERSTATEMENT OF THE CASE .................................... 6
A. Inmate Telecommunications Services ...................................... 6
B. Procedural History .................................................................. 10

V.

STANDARD OF REVIEW .......................................................... 12

VI.

ARGUMENT ................................................................................ 13
A. Plaintiffs Have Failed and Continue to Fail to Satisfy
Their Burden of Demonstrating Standing to Pursue Their
CPA Claim .............................................................................. 13
B. The Washington Supreme Court Upheld the
Exemptions Obtained by GTE, US West and CenturyTel From
the Rate Disclosure Rule ......................................................... 16
1. Plaintiffs concede that the waivers operated during the
entire relevant period of this case..................................... 16
2. The waivers evidence the WUTC's decision that the
charges Plaintiffs paid for inmate calls were not contrary
to the public interesL. ....................................................... 17
3. Plaintiffs' argument would render the WUTC exemptions
and waivers, and this Court's affirmed decision on appeal,
meaningless ....................................................................... 19

"

C. The Superior COUli Had Undisputed Evidence That Every
Documented Call Received by Plaintiffs Was Carried,
Rated, and Billed by GTE, US West, or CenturyTel ............ ,.20

1. Plaintiffs concede that T-NETIX did not provide calling
services at any facility from which the allegedly unlawful
calls arose ...... , ................................................................... 20
2. Plaintiffs' bare, unsupportable, and late-filed allegation
that Tara Helivel received an interLA T A call not covered
by the exemptions was insufficient as a matter oflaw to
defeat summary judgmenL .............................................. 22
D. The Superior Court Correctly Concluded That the Waivers
Exempted All Calls Received by Plaintiffs from the Rate
Disclosure Rule ............... ,., ... ,', ........ " ..................... ,', .. ".,', .. ,.. 26
E. This Court Already Rejected Plaintiffs' "Contracting With"
Argument in 2003 ................................................................... 28

II

TABLE OF AUTHORITIES
Federal Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ..................... 25
Arney v. Simmons, 26 F. Supp. 2d 1288 (D. Kan. 1998) ............................ 7
AT&Tv. Central Office Tel. Co., 524 U.S. 214, 23 (1998) ...................... 18
Benzel v. Grammer, 869 F.2d 1105 (8th Cir. 1989) ................................... 7
Johnson v. California, 207 F.3d 650 (9th Cir. 2000) .................................. 7
Lane v. Hutcheson, 794 F. Supp. 877, 881 (E.D. Mo. 1992) ...................... 7
Lujan v. Defenders of Wildlife, 504 U.S. 555, 556 (1992) ....................... 14
Miranda v. Michigan, 168 F. Supp. 2d 685 (E.D. Mich. 2001) .................. 7
United States v. AT&T Co., 552 F. Supp. 131 (D.D.C. 1982) .................... 9
Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) .......................... 7
Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994) .............. 18
Wooden v. Norris, 637 F. Supp. 543, 555-56 (M.D. Tenn. 1986) .............. 7

State Cases

Allan v. Univ. of Wash. , 140 Wash.2d 323, 329,
997 P.2d 360,363 (2000) .................................................................... 14,20
Blenheim v. Dawson & Hall Ltd., 35 Wn. App. 435,439,667 P.2d 125,
128(1983) ........................................................................................... 12,27
Bowers v. T-NETIX, 837 A.2d 608 (Pa. Commw. 2003) ............................ 7

111

CURE ofPa. v. Pub. Uti!. Comm'n., 569 A.2d 863 (2002) ........................ 7
Feigley v. Pub. Uti!. Comm'n, 794 A.2d 428 .............................................. 7
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co.,
105 Wash.2d 778, 785, 719 P.2d 531 (1986) ................................ 13,20,27
Juddv. AT&T Co., 116 Wn. App. 716, 66 P.3d 1102 (2003), aff'd 152
Wn.2d 195, 95 P.3d 337 (2004) ................................................ ......... passim
Judd v. AT&T Co., 152 Wn.2d 195,95 P.3d 337 (2004) ................ 3,19,29
Retail Store Employees Local 631 v. Totem Sales, Inc., 20 Wn. App. 278,
281,579 P.2d 1019, 1021 (1978) ............................................ 13,22,24,25
Valdez v. New Mexico, 54 P.2d 71 (N.M. 2002) ......................................... 7
Vallandigham v. Clover ParkSch. Dist. No. 400, 154 Wash.2d 16,26,
109 P.3d 805, 810 (2005) ........................................................................ 12
Washington State Physicians Ins. & Exch. Ass'n v. Fisons Corp., 122
Wn.2d 299, 311-12, 858 P.2d 1054 (1993) ............................................... 13
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982) ............. 13

Federal Statutes
47 U.S.C. § 151 ........................................................................................... 9

State Statutes
RCW 19.86 ................................................................................................. 1
RCW 19.86.120 ........................................................................................ 16
RCW 80.36.520 ................................................................................. passim
RCW 86.30.520 ........................................................................................ 28

IV

State Regulations
WAC 480-120-021 ...................................................................................... 9
WAC 480-120-121 ................................................................................ 6, 21
WAC 480-120-141 ............................................................................. passim
WAC 480-120-141(2)(b) ...................................................................... 7, 17
WAC 480-120-262 ...................................................................................... 1
WAC 480-140-121 .................................................................................... 10

Other Authorities
Amendment of Policies and Rules Concerning Service Providers and
Call Aggregators, 10 FCC Red. 1533 (1995) ............................................. 7
Billed Party Preference for InterLATA 0+ Calls, Second Report & Order
and Order on Reconsideration, 13 FCC Red. 6122 (1998) ......................... 7
Policies and Rules Concerning Operator Service Providers, 6 FCC Red.
2744 (1991) ................................................................................................. 7

v

I.

NATURE OF THE CASE
This is the second appeal in a lawsuit filed almost six years

ago alleging that several telephone companies, including respondents TNETIX and AT&T, as well as US West, Verizon, violated the Washington
Consumer Protection Act, RCW 19.86 et seq. ("CPA"). Plaintiffs alleged
that these entities carried inmate-initiated calls during the period 1996 to
2000 without complying with RCW 80.36.520, as implemented in state
regulations, WAC 480-120-141, I requiring audible, pre-connect disclosure
of the rates charged for such calls. According to this Court's decision in
the prior appeal, unless Plaintiffs demonstrate a violation of WAC 480120-141, they have no CPA claim. Judd v. AT&T Co., 116 Wn. App. 716,
66 P.3d 1102 (2003), aff'd 152 Wn.2d 195,95 P.3d 337 (2004).
The question now before the Court is one oflaw, not of
fact: were Plaintiffs entitled to rate disclosures on the inmate-initiated calls
they received, given the uncontested fact that the telecommunications
carriers which actually transported, completed, rated and billed for the
calls had obtained waivers of WAC 480-120-141 from the Washington
Utilities and Transportation Commission ("WUTC")? In other words,
having now through discovery demonstrated that the calls in question were

This regulation was substantially revised in 2002 and re-codified at
WAC 480-120-262.

all handled by telecommunications carriers exempt from the rate
disclosure requirement, have Plaintiffs suffered any legally cognizable
injury suppD11ing standing to sue as a matter of law? The Supelior Court
(Ramsdell, J.) answered both questions in the negative and, as a result,
entered summary judgment for T-NETIX and revoked the King County
Superior Court's "primary jurisdiction" referral of the claims against TNETIX and AT&T to the WUTC.
The complex procedural history of this case began in 2000,
when the Superior Court dismissed Plaintiffs' claims against US West
(now Qwest), GTE (now Verizon) and PTI (now CenturyTel) with
prejudice. The Superior Court held that, as a matter of law, all of these
entities were exempt from WAC 480- I 20-141, and had no obligation to
include audible, pre-connect disclosures on inmate-initiated calls. These
exemptions, the Court concluded, precluded a finding of CPA liability and
required dismissal of US West, GTE and CenturyTeL
The Superior Court also referred two subissues to the
WUTC under the doctrine of primary jurisdiction, seeking a detennination
whether T-NETIX and AT&T are subject to WAC 480-120-141 anywhere
in the State of Washington. At that time, Plaintiffs had not disclosed the
correctional facilities or phone numbers involved in their claims. In
November 2000, the Superior Court dismissed T-NETIX and AT&T
2

without prejudice and imposed a stay on the lawsuit until the WUTC
completed its inquiry. CR 29-30 (Order (Nov. 9, 2000)).
In 2003, this Court affirmed the dismissal of US West,
GTE and CenturyTel, rejecting Plaintiffs' attempt to attack the validity of
the waivers. The COUlt first held that Plaintiffs could not challenge the
waivers collaterally, in a civil lawsuit, rather than by direct appeal of the
WUTC's waiver decisions. It then upheld the waivers as a lawful exercise
of the WUTC's authority and discretion over matter of telecommunications regulation. Judd v. AT&T Co., 116 Wn. App. 716, 66 P .3d 1102
(2003). In 2004, the Washington Supreme Court affirmed that decision.
Judd v. AT&T Co., 152 Wn.2d 195, 95 P.3d 337 (2004).

Only well after the Supreme Court's affirmance did
Plaintiffs tum their attention to T-NETIX and AT&T. Plaintiffs initiated
the Superior Court's November 2000 primary jurisdiction referral in
November 2004. These issues could easily have been pursued by
Plaintiffs at the WUTC during the four-year appeals process, but were not.
In 2005, the WUTC proceeding began and T-NETIX
finally learned, via discovery, the nature of the conduct for which it had
been sued. It became readily apparent that Plaintiffs had suffered no
injury because every inmate call they had received was covered by the
WUTC waivers obtained by US West, GTE and CenturyTel. Moreover,

3

T-NETIX had maintained from the inception ofthis case that as an
equipment provider to these local exchange carriers ("LECs"), it is not a
telecommunications carrier subject to WAC 480-120-141. This
conclusion became starkly clear when Plaintiffs finally identified the
facilities from which they received calls, all of which were correctional
institutions served by the LECs under WUTC waivers of the rate
disclosure regulation.
In sum, Plaintiffs' CPA claim fails because they had no
right to rate disclosures on any of the calls they received. Plaintiffs
suffered no injury, and thus have legal no interest to protect here, because
none of the calls in question were subject to WAC 480-120-141. The
Superior Court was therefore correct in entering summary judgment on
grounds oflack of standing as a matter oflaw, and that decision should be
affirmed.

II.

SUMMARY OF ARGUMENT
Plaintiffs appeal the Superior Court's entry of summary

judgment for T-NETIX, arguing that an equipment manufacturer should
be subject to telephone service regulations that do not even apply to the
telephone service providers that carried, rated, and billed for the calls.
Having litigated this case for six years -

including unsuccessful previous

appeals to this Court and the Washington Supreme Court 4

Plaintiffs now

seek to avoid the consequences of their previous en·ors by extending a
regulation that exempted the inmate calls they received to an entity,
namely T-NETIX, that did not carry any of those calls. Judge Ramsdell
did not accept Plaintiffs ill-founded reasoning, nor should this Court.
In order for Plaintiffs to prevail, they must convince this
Court of two things. First, that the LECs operating in the State of
Washington had no reason to seek and obtain a waiver from WAC 480120-141, because they were in fact not bound by that rule at alL Second,
that the WUTC expended its resources and expertise to grant waivers that
had no effect as a matter oflaw. These are questions oflaw, and not of
fact.
Plaintiffs cannot plausibly persuade this Court on these two
questions oflaw, and in fact devote only two paragraphs of their 22-page
argument to the waiver issue. That Plaintiffs scarcely attempt to address
these issues, which the Superior Court found dispositive, itself illustrates
the futility of this appeaL

III.

COUNTERSTATEMENT OF ISSUES
Do Plaintiffs that receive inmate-initiated collect calls that

are transported, rated, and billed by entities exempt from WAC 480-120121, the rate disclosure rule, have any cognizable interest in hearing rate

5

disclosures that would grant them standing to enforce WAC 480-120-121
against an entity that supplied the payphone from which the calls
originated?
IV.

COUNTERSTATEMENT OF THE CASE
A.

Inmate Telecommunications Services

A brief description of the inmate telecommunications
services industry may assist the Court in reviewing Judge Ramsdell's
decision. Inmate telecommunications service is a unique, highly
specialized submarket of telecommunications, and is the only market that
respondent T-NETIX serves.
The most distinguishing feature of inmate
telecommunications is its security component: inmate-initiated calls are
lawfully restricted as to the persons that may be called and the length of
each call, and can only occur on a person-to-person basis. Inmates cannot,
according to regulations universally adopted by federal, state, and local
correctional authorities throughout America, initiate or participate in
three-way calls, or conference calls, or calls to judges, jurors or witnesses.
These types of restrictions have routinel y been endorsed by the Federal

6

Communications Commission 2 and WUTC,) and affinned by dozens of
courts across the county. 4
For purposes of this appeal, four conectional facilities in
Washington are relevant: Washington State Refonnatory in Monroe, WA;
McNeil Island Detention Center; Airway Heights Conectional Center; and
Clallam Bay Conectional Center. Plaintiffs received calls only from these
four conectional facilities. CR 254 (T-NETIX Motion for Summary
2

Billed Party Preferencefor InterLATA 0+ Calls, Second Report &
Order and Order on Reconsideration, 13 FCC Red. 6122 (1998) (holding
that inmate payphones are not required to pennit access to alternative
telecommunications carriers); Policies and Rules Concerning Operator
Seniice Providers, 6 FCC Rcd. 2744 (1991), afJ'd, Amendment ofPolicies
and Rules Concerning Service Providers and Call Aggregators, 10 FCC
Red. 1533 (1995) (holding that 47 U.S.c. § 226 requirements for
unblocking 1-800 calls from payphones do not apply to inmate
payphones).
Request for Petition of Waiver ofAdministrative Rules for Qwest
Corp., Docket UT-990043, Order Granting Full and Partial Temporary
Waiver of WAC 480-120-141(2)(b) (Sept. 27, 2000). The Court relied
upon and quoted this order in its previous review of this case.
4
E.g., Johnson v. California, 207 F.3d 650 (9th Cir. 2000);
Washington v. Reno, 35 F.3d 1093, 1100 (6 th Cir. 1994) (telephone access
is subject to limitations based on legitimate security interests of the
facility); Benzel v. Grammer, 869 F.2d 1105 (8 th Cir. 1989) (upholding
phone restriction that resulted in inmates being unable to call any nonattorney, non-family males because it served a legitimate security
purpose); Miranda v. Michigan, 168 F. Supp. 2d 685 (E.D. Mich. 2001);
Arney v. Simmons, 26 F. Supp. 2d 1288 (D. Kan. 1998); Lane v.
Hutcheson, 794 F. Supp. 877, 881 (E.D. Mo. 1992); Wooden v. Norris,
637 F. Supp. 543, 555-56 (M.D. Tenn. 1986); Valdez v. New Mexico, 54
P.2d 71 (N.M. 2002); Bowers v. T-NETIX, 837 A.2d 608 (Pa. Cornrow.
2003); Feigley v. Pub. Uti!. Comm 'n, 794 A.2d 428 (Pa. Commw.), appeal

7

Judgment ("MS],,) at 13)5 For ease of reference, T-NETIX refers to these
facilities as "Monroe," "McNeil Island," "Ainvay Heights," and "Clallam
Bay." All four facilities involved in this case McNeil Island and Clallam Bay -

Monroe, Airway Heights,

were served by GTE, US West or

CenturyTel.

It is undisputed that T-NETIX did not carry, set the rate of,
or bill the charges for any of the calls Plaintiffs received. CR 254-55 (TNETIX MSJ at 13-14); PI. Br. at 34-35. Rather, T-NETIX sold the
equipment used by the LECs to originate and carry the calls from these
facilities. PI. Br. at 17. The contracts to provide calling services at these
facilities were held by GTE, US West and CenturyTel. CR 248 (T-NETIX
MSJ at 7). These LECs installed the telephone lines, set the call rates,
billed Plaintiffs, and collected Plaintiffs' money for every call at issue in
this case.

denied sub. nom. CURE ofPa. v. Pub. Uti!. Comm 'n., 569 A.2d 863
(2002).
5
Plaintiffs' sworn interrogatory responses did not list Clallam Bay as a
facility from which calls were received. Plaintiffs' telephone bills produced in
discovery, however, listed one call from Clallam Bay. Despite T -NETIX
bringing this fact to Plaintiffs' attention, they did not update or amend their
interrogatory responses. T-NETIX nonetheless has included Clallam Bay as a
relevant facility in all of its papers challenging Plaintiffs' standing. Even if
Plaintiffs include the Clallam Bay call in their claim, they still lack standing to
pursue any claim. CenturyTel served Clallam Bay at the time of the call, and
was exempted from WAC 480-120-141 at that time. CR 20 (T-NETIX Mot. for
Summ. Deterrn. at 20 n.2).

8

In the lexicon of Washington telephone regulation, GTE,
US West and CenturyTel are providers of "telecommunications," defined
as "the offering of telecommunications for a fee directly to the public[.]"
WAC 480-120-021. More specifically, these entities are, or were during
the relevant period ofthis case, the local exchange carriers ("LECs")
serving the four correctional facilities from which Plaintiffs received calls.
They were licensed to provide local calling service and intraLATA calling
service throughout Washington. An "intraLATA" call, sometimes called
"local long distance," is one that both originates and terminates within one
LATA-local access and transmission area - drawn according to the
boundaries established by District Judge Harold Greene as part of the
AT&T divesiture. United States v. AT&T Co., 552 F. Supp. 131 (D.D.C.
1982). Under the terms ofthe AT&T divestiture decree, LECs were
permitted to carry only local and intraLATA calls. Id. at 188-89. 6
The WUTC rule upon which Plaintiffs rely for their CPA
claim is WAC 480-120-141, which applied to "[ajll telecommunications
companies providing operator services (both live and automated)." As

6

The Telecommunications Act of 1996,47 U.S.c. § 151 et seq.,
included a provision whereby a LEC could obtain permission to provide
interLATA services (for transmissions crossing a LATA boundary) if they
met several competitive benchmarks. No LEC in Washington had
obtained this interLATA permission during the relevant period of this case
(August 1996 to August 2000).

9

this Court and the Washington Supreme Court have already affinned in
this case, GTE, US West and CenturyTel were exempt from this rule
during the relevant period of the Complaint.

B.

Procedural History

This appeal marks the second time that this Court has been
asked to review a decision by the King County Superior Court in this case.
In 2001, Plaintiffs appealed the Superior Court's dismissal of every LEC
defendant -

GTE, CenturyTel and US West-on the ground that they

were exempt from the rate disclosure rule, WAC 480-140-121, by virtue
of exemptions and waivers granted by the WUTC. This Court rejected
Plaintiffs attempt to collaterally attack those WUTC regulations, deciding
in 2003 that the WUTC's decision not to enforce the rate disclosure rule
was valid. 7 In 2004, the Washington Supreme Court affinned that
decision. 8 Now in 2006, Plaintiffs ask this Court to impose those rate
disclosure obligations on T-NETIX, an equipment provider, having lost
GTE, US West and PTI as sources of damages.
Plaintiffs' claims against T-NETIX languished for four
years, without discovery or any WUTC proceedings, while Plaintiffs

7

Juddv.AT&TCo., 116Wn.App. 716, 66 P.3d 1102 (2003), aff'd
152 Wn.2d 195, 95 P.3d 337 (2004).
8
Id.
10

appealed the Superior COUli's dismissal of the three LECs, Months after
the Washington Supreme Court affim1ed that dismissal, on November 14,
2004, Plaintiffs returned to the Washington WUTC to seek a finding of
liability against T-NETIX as the provider of the phones from which
inmate telephone calls originated. The WUTC then opened a proceeding
to review the questions certified by Superior Court Judge Kathleen
Learned. For the first time, T-NETIX obtained discovery to understand
Plaintiffs' allegations and ascertain precisely the calls at issue.
T-NETIX filed a Motion for Summary Determination at the
WUTC, arguing that Plaintiffs lack standing to proceed on their CPA
claim, thus obviating any need for the WUTC to complete the November
2000 primary jurisdiction referral. The WUTC Administrative Law Judge
held that the Commission had no jurisdiction or authority to decide the
issue of standing. She instructed the parties to raise standing if and when
the case retumed to the Superior Court.
T-NETIX immediately returned to the Superior Court,
moving for a lift of the stay and for summary judgment on the ground that
neither Plaintiff has standing to pursue a CPA claim. T-NETIX presented
a factual analysis of Plaintiffs' phone bills demonstrating conclusively that

every call Plaintiffs received was carried, rated, and billed by US West,

11

GTE or PTI -

the entities already exempt from WAC 480-120-141.

Plaintiffs did not challenge the accuracy ofT-NETIX's analysis.
On August 26, 2006, Judge Jeffrey Ramsdell heard
argument on T -NETIX' s motion. See generally Verbatim Report of
Proceedings (Aug. 26, 2005) ("VRP"). Reasoning at argument that
Plaintiffs' attempt to enforce WAC 480-120-141 against T-NETIX
"logically makes no sense," id. at 52, Judge Ramsdell entered summary
judgment for T-NETIX on September 6,2006. CR 330-31. Judge
Ramsdell subsequently clarified his order to include AT &T, and rescinded
the November 2000 primary jurisdiction referral to the WUTC. CR 34650.

V.

STANDARDOFREVIEW
Courts of appeals employ the same standard of review on

appeal of summary judgment as applied by the trial court. E.g.,

Vallandigham v. Clover ParkSch. Dist. No. 400, 154 Wash.2d 16,26,109
P .3d 805, 810 (2005). Summary judgment will be granted "if the
pleadings, depositions, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter oflaw." Blenheim

v. Dawson & Hall Ltd., 35 Wn. App. 435, 439, 667 P.2d 125, 128 (1983).
"The court must consider all facts submitted and all reasonable inferences
12

from the facts in the light most favorable to the nonmoving paliy." Wilson
v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Further, "[aj

party may not avoid an opponent's motion for summary judgment by
resting on mere allegations of its complaint but must set forth specific
facts showing that there is a genuine issue of material fact." 129 Retail
Store Employees Local 631 v. Totem Sales, Inc., 20 Wn. App, 278, 281,

579 P.2d 1019, 1021 (1978).

VI.

ARGUMENT
A.

Plaintiffs Have Failed and Continue to Fail to Satisfy
Their Burden of Demonstrating Standing to Pursue
Their CPA Claim
Plaintiffs must have standing to pursue their CPA claim,

The Washington Supreme Court established in 1986 that all private CPA
plaintiffs must show "injury to plaintiff in his or her business or property"
in order to pursue their claim, Hangman Ridge Training Stables, Inc. v.
Sa/eco Title Ins. Co" 105 Wash.2d 778, 785, 719 P.2d 531 (1986); see
Washington State Physicians Ins. & Exch. Ass 'n v. Fisons Corp., 122

Wn.2d 299, 311-12, 858 P.2d 1054 (1993) (holding that doctors have
standing to sue drug manufacturer when prescribed drug harms their
patients).

13

Plaintiffs bear the burden of proving facts sufficient to
demonstrate standing. Allan v. Uni\'. of I·rash., 140 Wash.2d 323, 329,
997 P.2d 360, 363 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555,566 (1992)). This burden includes '''a factual showing of perceptible
harm. '" Id. (holding that wife of professor lacked standing to challenge
amendments to the University of Washington faculty disciplinary code).
Plaintiffs apparently acknowledge this burden. See PI. Br. at 17.
For purposes of this case, Plaintiffs would have a
cognizable interest if they received a call that should have included an
audible, pre-connect rate disclosure but did not. In the Complaint,
Plaintiffs alleged that they received inmate calls and that they do not recall
hearing an audible disclosure. See PI. Br. at 2. Yet Plaintiffs have been
unable to show that, as a matter oflaw, the calls should have included
audible disclosures under the WUTC rule, WAC 480-120-14l.
As analyzed in greater detail below, every single call of
which Plaintiffs produced evidence was carried, rated, and billed by
QwestlUS West, GTENerizon, or CenturyTellPTI. All of these LECs
were exempt from WAC 480-120-141 for every call Plaintiffs receiveduntil 1999, the rule contained an express clause exempting these carriers,
and after 1999, the WUTC granted waivers of the rule that covered the

14

entire time period in which Plaintiffs received inmate calls. CR 245 (TNETIX MSJ at 4 CT-NETIX MSJ")).
Plaintiffs therefore must establish that WAC applies as a
matter oflaw to T -NETIX and AT&T. Plaintiffs' brief is rife with
uncorroborated technical discussion, the validity of which has never been
accepted by any tribunal, to argue that T-NETIX or AT&T were indeed
the entities to which WAC 480-120-141 had always applied. Via this
technical analysis, Plaintiffs attempt to manufacture disputed material
facts -

yet the Superior Court relied upon none of it, and none of it is

necessary to deciding the questionsoflaw before this Court.
Plaintiffs' exercise is immaterial and pointless as a matter
oflaw. As the Superior Court expressly recognized, Plaintiffs' argument
would lead to two absurd results: first, that the WUTC simply wasted its
time in crafting the exemptions that operated during the relevant period of
this case; and second, that an equipment vendor selling equipment to a
phone company should be regulated as a telecommunications service
provider. See VRP at 52. Focusing on the obvious flaws in this approach,
the Superior Court held that Plaintiffs were not entitled to hear audible
disclosures on the contested calls, and thus had no right to bring a claim
under the CPA. Plaintiffs' Brief, which offers exactly the same logic and

15

purported "evidence" available to the Superior Court, provides this Court
no reason to disturb the Superior Court's ruling.

B.

The Washington Supreme Court Upheld the
.Exemptions Obtained by GTE, US West and
CenturyTel From the Rate Disclosure Rule

Every LEC involved in Plaintiffs' claims - GTE, US West
and CenturyTel -

was exempt from the rate disclosure rules for every call

that Plaintiffs received. Plaintiffs have never disputed this ultimate fact.
Rather, Plaintiffs attacked those exemptions, here and before the
Washington Supreme Court, because the exemptions deprive Plaintiffs of
any cognizable injury under RCW 80.36.520. Those exemptions were,
however, upheld, and they bar Plaintiffs from pursuing their claims against
T-NETIX now. Any contrary finding would render the WUTC's review
and grant of the LEC exemptions, as well as this Court's decision on
appeal, a nullity.
1.

Plaintiffs concede that the waivers operated
during the entire relevant period of this case.

Plaintiffs have never challenged the conclusion that the
relevant period of this case is August 1, 1996 to August 1, 2000 by
operation ofRCW 19.86.120. See CR 245 (T-NETlX MSJ at 4 n.3).
Plaintiffs concede that the rate disclosure rule did not apply to GTE, US
West or CenturyTel until 1999. PI. Br. at 21. Plaintiffs also concede that
16

GTE and US West obtained waivers lasting through 2000. Id. at 37; CR
500 (Pis.' Opp. to T-NETIX MSJ at 17). Thus, the exemptions and
waivers, which this Court and the Supreme Court have deemed valid,
operated during the entire peliod in which Plaintiffs received inmate calls.

2.

The waivers evidence the WUTC's decision that
the charges Plaintiffs paid for inmate calls were
not contrary to the public interest.

A good deal of Plaintiffs' brief is devoted to decrying
inmate telephone rates in order to lend a sympathetic component to their
appeal. PI. Br. at 2,18. Plaintiffs' intent, it seems, is to avert attention
away from their failure to demonstrate any cognizable interest or harm in
this suit by collaterally challenging the rates they paid for inmate calls.
Yet while the enactment of RCW 80.36.520 indicates the Washington
Legislature's concern that collect calls from payphones - including
public payphones -

were high, that legislative finding has no bearing on

this case, according to both the WUTC and this Court.
The WUTC expressly held when granting US West a
waiver in September 2000 that "QwestfUS West's operator-assisted rates
have not been a source of complaints for this Commission, [and] have
not harmed the public." Requestfor Petition of Waiver ofAdministrative
Rules for Qwest Corp., Docket UT-990043, Order Granting Full and
Partial Temporary Waiver ofW AC 480-120-141 (2)(b) (Sept. 27, 2000)
17

(emphasis added). The WUTC also found that Qwest's petition for waiver
made "a sound request since the Company's operator-assisted rates
compare favorably to other carrier's [sic] rates that serve inmate
phones." Id. (emphasis added). This Court quoted and relied upon this
finding in affirming the validity of the LEC waivers. Judd, 116 Wn. App.
at 773, 66 P.3d at 1108-09. Consequently, the essence of Plaintiffs'
lament -

that the calls they received were somehow priced "too high" -

was expressly rejected in the waiver proceedings that exempted the LECs
from the rate disclosure regulations.
According to T-NETIX's uncontroverted analysis of
Plaintiffs' phone bills, approximately half of the calls Plaintiffs received
were QwestlUS West calls. CR 20 (T-NETIX Mot. for Summ. Determ. at
8). The WUTC manifestly had no concern regarding the amounts charged

for these calls. Moreover, Plaintiffs likely know that any attempt to attack
those rates in court would immediately fail under the filed rate doctrine,
which provides that an approved, tariffed rate "is per se reasonable and
unassailable in judicial proceedings brought by ratepayers." Wegoland
Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994). See also AT&Tv.
Central Office Tel. Co., 524 U.S. 214, 23 (1998).

As such, the Court should grant no consideration to the
public policy contentions that Plaintiffs offer in support of their claim.
18

Rather, the Court's focus should remain on whether Plaintiffs were
entitled to pre-connect rate disclosures on any of the inmate-initiated calls
they received. Unless they were so entitled, Plaintiffs have no standing to
seek relief of any kind, against any defendant.

3.

Plaintiffs' argument would render the WUTC
exemptions and waivers, and this Court's
affirmed decision on appeal, meaningless.

Plaintiffs pursued GTE, US West and CenturyTel all the
way to the Washington Supreme Court, arguing that the exemptions these
LECs obtained could not shield them from liability under RCW 80.36.520.
Judd, 152 Wn.2d at 205,95 PJd at 342; Judd, 116 Wn. App. at 767, 771,
66 P .3d at 1105-06, 1108. Discovery finally obtained by T -NETIX in
April 2005 demonstrates that one of these exempted carriers was the
telecommunications company for every inmate call they received. CR 20
(T-NETIX Mot. for Summ. Determ. at 8). Plainly, Plaintiffs recognized
that if the rule exemptions were upheld, their claim would be
extinguished. In 2004, the Washington Supreme Court, the tribunal oflast
resort, upheld the waivers. Judd, 152 Wn.2d at 206-07,95 P.3d at 343.
Now Plaintiffs pretend that the exemptions are irrelevant
because neither GTE, nor US West, nor CenturyTel are the entities
Plaintiffs are now suing. Plaintiffs devote only two paragraphs to the

19

waiver issue in an effort to minimize its crucial, and dispositive, impOlt in
this case. PI. Br. at 37-38. In effect, Plaintiffs argue that the WUTC had
no reason to grant GTE, US West and CenturyTel exemptions from WAC
480-120-141 because that rule applies to a multitude of different entities.
At bottom, Plaintiffs ask this Court to tell the WUTC that
its efforts were wasted, and the entire waiver inquiry was needless. Unless
Plaintiffs can effect this obviously absurd result, they have no standing to
pursue their rate disclosure claims. Being unable to do so, and having set
forth no facts to demonstrate an injury to any "showing of perceptible
harm," Allan, 140 Wash.2d at 329, 997 P.2d at 363, Plaintiffs have failed
their burden to demonstrate CPA standing. Hangman Ridge, 105 Wash.2d
at 785,719 P.2d at 535.

C.

The Superior Court Had Undisputed Evidence That
Every Documented Call Received by Plaintiffs Was
Carried, Rated, and Billed by GTE, US West, or
CenturyTel
1.

Plaintiffs concede that T -NETIX did not provide
calling services at any facility from which the
allegedly unlawful calls arose.

Plaintiffs acknowledge that T -NETIX did not carry, set the
rates of, or bill for any of the calls they received. PI. Br. at 35. They
nonetheless maintain that T -NETIX is subject to WAC 480-120-141 as an
operator services provider ("OSP"). Plaintiffs also imply that T-NETIX
20

has admitted it perfonns operator services, PI. Br. at 15, which is a flat
misstatement. T-NETIX has maintained, since the inception of this case
in 2000, that as a mere equipment vendor it is not an OSP. It reiterated
this position at the WUTC and in Superior Court. But for purposes of this
appeal, now that we know the facilities and calls involved in Plaintiffs'
claim, there is no need to prove out this conclusion.
Here again the LEC waivers are the dispositive ultimate
fact. The very existence of the waivers demonstrate that T-NETIX is not
an OSP under Washington law at the correctional facilities in questionthe LECs are the OSPs. The rate disclosure rule, WAC 480-120-121,
applies to OSPs. GTE and US West obtained waivers from that rule,
demonstrating that they are the OSPs. T -NETIX, which is a vendor to
these two entities at every correctional facility involved in this case, thus
cannot be an OSP. Otherwise, there would be two OSPs at these facilities.
That conclusion plainly cannot be correct, yet it necessarily is Plaintiffs'
position in this case.
The undisputed fact is this appeal is that Plaintiffs have not
contested the veracity or accuracy ofT-NETlX's analysis of their phone
bills. T-NETIX recorded every inmate call appearing on every phone bill
Plaintiffs produced - numbering more than 40 -

and noted the LEC that

carried and billed the call. T-NETIX then researched each call to
21

detennine whether they were local, intraLAT A, or interLA T A. As
demonstrated in the designated record on appeal, every call recorded on
Plaintiffs' phone bills is local or intraLAT A. That means that GTE, US
West or CenturyTel were the telecommunications carriers for whom WAC 480-120-141 was written -

the entities

for every call Plaintiffs

received. Thus, unless the Court concludes that two asps served the
facilities at issue in this case, an obviously absurd notion, then Plaintiffs
again fail to demonstrate any cognizable interest under the CPA.

2.

Plaintiffs' bare, unsupportable, and late-filed
allegation that Tara Herivel received an
interLATA call not covered by the exemptions
was insufficient as a matter of law to defeat
summary judgment.

Plaintiff Tara Herivel continues to rely on a mere allegation
- one can never be corroborated -

that she received one call not covered

by the LEC rule exemptions that included no audible rate disclosure, and
thus has suffered "injury" under the CPA. PI. Br. at 29-30. This naked
allegation is insufficient to defeat summary judgment, especially when
compared to the contrary evidence T -NETIX submitted in.the record. 129
Retail Store Employees Local 631, 20 Wn. App. at 281, 579 P.2d at 1021
("A party may not avoid an opponent's motion for summary judgment by

22

resting on mere allegations of its complaint but must set forth specific
facts showing that there is a genuine issue of material fact. ").
Ms. Herivel alleged, after the close of briefing on this issue
at the WUTC, that she received an interLATA call. Plaintiffs did not
contest any part ofT-NETIX's analysis of their phone bills -

which

demonstrates that every inmate call was carried by a carrier exempt from
the rate disclosure rule -

and merely contended in a supplemental filing

that Ms. Herivel received one call from a prison located across a LATA
boundary from her home: Airway Heights 9 If Ms. Herivel could advance
any evidence of that call, she may have a claim against an interLATA
carrier - a carrier other than GTE, US West and PTI - because that carrier
would have been subject to the rate disclosure rule, WAC 480-120-141.
Nonetheless, Airway Heights, like the other three prisons at
issue in this case, is one for which T-NETIX sold the phones and other
telecommunications equipment. T-NETIX would therefore have a record
of the call, because part of the service it renders is keeping a log of all
calls that originate on its payphones. T-NETIX tried twice to find any
record that Ms. Herivel received a call from Airway Heights during the
stated period. It never found one. Thus, under the prevailing summary

9

A call from Airway Heights to Plaintiff Judd would not be an
interLATA call.

23

judgment standard, which rejects bare allegations having no factual
support, 129 Retail Store Employees Local 631, 20 Wn. App. at 281, Ms.
Herivel has no standing to pursue her CPA claim against T-NETIX.
T -NETIX researched its database twice, because Ms.
Herivel's recollection about the call changed. First, she alleged that the
call occurred at some time in October 1998. T -NETIX responded that it
found no such call between October 1 and December 31,1998. CR 25556 (T-NETIX MSJ at 14-15). Ms. Herivel then alleged that the call came
at some time during 1998. CR 269 (Herivel Dec!. '\16). T-NETIX thus
broadened its search. It found no call from Airway Heights to Ms.
Herivel on any day between January 1 and December 31, 1998. Id.
The T-NETIX Vice President of Billing Services provided two sworn
affidavits to verify the results of this research. CR 280-281 (Dec!. of
Nancy Lee).
Faced with this evidence, which the Superior Court found
sufficiently compelling to conclude that there was no material disputed
question offact as to any call, Plaintiffs now assert on appeal that TNETIX's call research was incomplete. P!. Br. at 29. They observe that
"T-NETIX didn't bother to research calls placed earlier [than January I,
1998]- despite Ms. Herivel's statement that the call may have been
placed sometime after August 26, 1997." Id. For Plaintiffs to make this
24

argument is shocking: Ms. Herivel's second declaration states that "my
best estimate of when I receive the telephone call is somewhere between
Jnne and December 1998." CR 268. Hence T-NETIX researched the
entire 1998 time period. It is unfortunate that Plaintiffs persist in this
obvious gamesmanship with respect to the alleged interLAT A call, and it
IS Improper.
Ms. Herivel has admitted that she has no record of the
purported interLAT A call and will never be able to provide one. PI. Br. at
29-30. Thus, other than T-NETIX's records, which refute the existence of
this alleged call, there is no factual evidence supporting Ms. Herivel's
contention. Her bare allegation cannot defeat summary judgment. 129

Retail Store Employees Local 631, 20 Wn. App. at 281,579 P.2d at 1021.
Plaintiff concededly will not be able to demonstrate via admissible
evidence that the inter LATA call actually occurred, rendering the
allegation a "mere scintilla" of evidence that as a matter oflaw does not
present a disputed material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). The Superior Court was thus correct not to give weight
to Ms. Herivel's alleged interLATA call, and to grant summary judgment
forT-NETIX.

25

D.

The Superior Court Correctly Concluded That the
Waivers Exempted AlI Calls Received by Plaintiffs from
the Rate Disclosure Rule
Judge Ramsdell concluded that the waivers and

exemptions, which Plaintiffs concede affected every documented call they
received, had the legal effect of stripping Plaintiffs of any right to relief.
Though Plaintiffs persisted in arguing that T-NETIX or AT&T may be
OSPs subject to WAC 480-120-141, Judge Ramsdell aptly recognized that
"logically it just doesn't make any sense." VRP at 52 (emphasis added).
Counsel for T-NETIX provided a simple analogy at oral
argument to demonstrate the flaw in Plaintiffs' theory. See VRP at 25-26.
Counsel asked Judge RamsdelI to suppose that the WUTC adopted a rule
requiring Internet Service Providers C"ISPs") to disclose their rates and
actual transmission speed at the start of a user's Internet session. Suppose
that under this rule, the WUTC determined that certain well-known ISPs,
such as AOL and Earthlink, deserved waivers from the rule. Months later,
an Internet user sues AOL for failure to disclose its rates and speed. Then,
when AOL is dismissed from the case due to the rule waiver, the Internet
user sues Cisco because it sold the Internet routers and servers to AOL
that AOL used to offer ISP services. Suddenly Cisco, which does not
offer ISP services to consumers, is subject to a telecommunications rule

26

via the extension ofliability from telecommunications providers to
equipment vendors.
That absurd result is what Plaintiffs are trying to achieve in
this appeal. Having lost GTE, US West and CenturyTel as sources of
damages, Plaintiffs tum to the equipment provider to make them whole.
As a matter oflaw, this attempt must fail. Judge Ramsdell plainly
recognized the flaw in Plaintiffs' argument, stating:
It seems to me - what counsel was saying a
moment ago seems to make logical sense, in
essence. If the carrier is not required to
make the disclosure because they are
exempt, does it make any sense to require
somebody else to do it for them? That's
sort of the loop I get myself into. And
logically it just doesn't make any sense.

VRP at 52 (emphasis added).
Plaintiffs simply were not entitled to audible disclosures on
the cans they received and thus have no cognizable interest that permits
them to continue pursuing their CPA claim. Hangman Ridge, 105
Wash.2d at 785. Consequently, on the undisputed facts T-NETIX was
"entitled to a judgment as a matter oflaw." Blenheim, 35 Wn. App. 435 at
439,667 P.2d at 128. The Superior Court's conclusion on this point was
sound, and its entry of summary judgment therefore should be upheld.

27

E.

This Court Already Rejected Plaintiffs' "Contracting
With" Argument in 2003
Recognizing their inability to allege hann from T -NETIX,

Plaintiffs refer to a clause in the CPA, RCW 86.30.520, that authorized the
WUTC to adopt rate disclosure rules affecting those "contracting with" an
OSP. PI. Br. at 35-36. This argument warrants no consideration in this
appeal, because this Court already rejected it in 2003.
RCW 80.36.520 provides, in part, that
[TJhe [WUTC] shall by rule require, at a
minimum, that any telecommunications
company, operating as or contracting with
an alternate operator services company,
assure appropriate disclosure to consumers
of the provision and the rate, charge or fee
of services provided by an alternate operator
services company."
Plaintiffs argue that they have standing "if AT &T and/or T-NETIX
'contracted with' an OSP that failed to disclose rates on calls received by
one of the plaintiffs." PI. Br. at 22. Yet this argument is predicated on the
notion that RCW 80.36.520 is a legitimate ground for assessing liability in
this case. It is not.
In its 2003 decision, this Court reasoned that "[tJhe
language ofRCW 80.36.520 does not specifically require that telephone
companies make contemporaneous disclosures. A plain reading of the
statute indicates that the legislative requirement directed the WUTC to
28

assure 'appropriate disclosure' to consumers through promulgation of
rules." Judd, 116 Wn. App. at 770,66 PJd at 1107 (emphasis added).
This Court thus concluded that "in order for there to be a failure to
disclose that is actionable under the CPA, the failure must violate the
rules adopted by the WUTC." !d. (emphasis added). The Washington

Supreme Court upheld this conclusion. Judd, 152 Wn.2d at 204, 95 P .3d
at 342.
Plaintiffs therefore cannot rely on the language of RCW
80.36.520 to support their claims, but rather must focus on the WUTC's
language in WAC 480-120-141. And nothing in that rule includes the
"contracting with" clause that Plaintiffs believe establishes their standing.
Accordingly, the Court should not devote its attention to Plaintiffs'
"contracting with" strategy for reviving their claims, but rather should
focus on the actual WUTC rules, including the LEC exemptions and
waivers, to discern whether Plaintiffs have alleged or can allege any harm
in this case.
RESPECTFULLY SUBMITTED this

(q~y

of April, 2006.

BADGLEY-MULLINS LAW GROUP

BY~~~
#

Duncan C. Turner,
20597
Attorney for Respondent T-NETIX, Inc.
29

CERTIFICATE OF SERVICE
I certify, under penalty of perjury pursuant to the laws of the
United States and the State of Washington, that on April 19,2006, a true
copy of the Response Brief of Respondent T-NETIX, Inc. was served
upon counsel of record as indicated below:
Jonathan P. Meier
Sirianni Youtz Meier & Spoonemore
7 I 9 Second Avenue, Suite 1100
Seattle, W A 98104
Attorneys for plaintiffs

[x] Via Legal Messenger

Michael P. McGinn
Stokes Lawrence, P.S.
800 Fifth Avenue, Suite 4000
Seattle, WA 98104
Attorneys for AT&T

[x] Via Legal Messenger

Charles H.R. Peters
Schiff Hardin LLP
233 South Wacker Drive
6600 Sears Tower
Chicago, IL 60606-6473
Attorneys for AT&T

[x] Via U.S. Mail

Letty S.D. Friesen
AT&T
919 Congress Avenue, Suite 900
Austin, TX 78701-2444
Attorneys for AT&T

[x] Via U.S. Mail

Laura Kaster
AT&T
One AT&T Way, Room 3A213
Bedminster, NJ 07921
Attorneys for AT&T

[x] Via U.S. Mail

DATE this ~'h of April, 2006 at Seattle, Washington.

{)ut~~
Christina Limon, Legal Assistant
31