BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, Complainant, v. U S WEST COMMUNICATIONS, INC. Respondent. ) ) ) ) ) ) ) ) ) ) ) DOCKET NO. UT-970766 U S WEST’S REPLY TO PUBLIC COUNSEL AND STAFF ANSWERS TO U S WEST’S PETITION FOR RECONSIDERATION U S WEST Communications, Inc. (U S WEST) files this reply to address the issues of service quality standards and directory assistance revenues as discussed by Staff and Public Counsel in their February 20, 1998 answers. Service Quality Standards In its petition for reconsideration and clarification, filed January 26, 1998, U S WEST specifically requested clarification from the Commission on the service quality standards it must meet in order to demonstrate the service quality improvements required by the Commission in both this docket and in UT-950200. The Commission had, in Docket No. UT-950200, ordered U S WEST to show “substantial” and significant” improvements in service quality, with the goal being a level “equivalent to” the service provided in 1991. At page 28 of the Fifteenth Supplemental Order in Docket No. UT-950200, the Commission stated: The Company will be expected to demonstrate that its service quality in terms of held orders, in terms of missed or incomplete appointments, in terms of repair service in compliance with the rule, and in terms of customer complaints to the Commission, all have returned to and remain stable at levels comparable with the Company’s experience prior to 1991 and consistent with other local exchange companies within the State. U S WEST had not earlier sought clarification of those standards, as U S WEST believed it knew what the Commission meant by the requirements it imposed at page 28. U S WEST presented its case in this docket believing that it had shown substantial and significant improvements, but acknowledging that it had not yet attained 1991 service levels. The Company had hoped the Commission would recognize its progress and provide for partial relief (i.e. recognition of the Team and Merit Award expenses) contingent upon a continued demonstration of improvement. The Commission, in its Tenth Supplemental Order, disagreed with U S WEST. The positions of Staff and Public Counsel on brief, and during this post-hearing process, have made it abundantly clear that these terms do need further definition if U S WEST is to have any hope of knowing the standards and meeting them. The parties suggest that the benchmarks set forth by U S WEST are “far too narrow”, “insufficient”, “too few” and “poorly cast”. Yet the benchmarks identified by U S WEST mirror those addressed in the Commission’s Fifteenth Supplemental Order in UT-950200. The parties further suggest that U S WEST is proposing a “new” standard - this simply is untrue. The 1990 standards offered at page 6 of U S WEST’s Petition for Reconsideration and Clarification and Exhibit A, identify the Company’s performance in terms of held orders, repair and customer complaints. Exhibit A was filed in Docket No. UT-970766 as Exhibit 167. U S WEST has simply updated Exhibit 167 to reflect 1997 end of year results. U S WEST referred to this Exhibit in its testimony as the data available for comparison to 1990 service quality performance. The Company does not have data on the level of missed appointments in 1990; the earliest data available is 1993 data which indicated U S WEST missed 4.2% of its provisioning commitments. WAC 480-120-051, -500, -505, -510, -515, -520, -525, -530 and -535 do not specify a missed appointment service standard, therefore the Commission may need to set forth a benchmark for this standard. Contrary to Staff’s and Public Counsel’s assertion, U S WEST is seeking clarification, and is not asking the Commission to rule on a new issue. The Commission clearly had in mind a standard when it concluded that U S WEST’ s customer service performance had deteriorated significantly since 1991. See Page 130 of the Fifteenth Supplemental Order in Docket No. UT-950200. U S WEST has set forth its understanding of the measurable standards that must be attained to achieve pre-1991 levels of service. U S WEST is simply asking the Commission to clarify whether those are in fact the standards, or if some other or additional measurements will be held to be the standard. U S WEST is in the process of evaluating necessary changes it must make to its workforce, investment priorities, processes and procedures in order to attain pre-1991 service levels. U S WEST is prepared to make necessary changes to attain the standards set forth by this Commission by end of year 1998. U S WEST will not focus solely on the situations for which the Commission has established criteria as suggested by Public Counsel (Answer at p. 3). U S WEST has already experienced the brunt of competition for its most valued customers and knows exactly what it must do to retain its customer base. Both Staff and Public Counsel suggest that a service standard clarification is unnecessary, that U S WEST should know when it has improved service to an acceptable level. Staff and Public Counsel seem to want a nebulous, vague standard, which will only encourage litigation and protracted proceedings. Public Counsel contends that U S WEST must bear responsibility for knowing when the target is met, (Answer at p. 2), but then states that the general standard of 1991 levels is sufficient guidance for now (Answer at p. 3). These positions are fundamentally inconsistent, and U S WEST submits that such an approach serves no one. Staff also advocates an undefined standard. While it is clear that Staff and Public Counsel would like to see service improve, and should have every reason to help the Company attain measurable standards, it is puzzling that neither party seems to want to see those standards defined. It is clear that unless the Commission sets forth the benchmarks U S WEST must attain, the parties will continue to argue for new benchmarks or will question the benchmark measurement. The Commission has established an incentive for the Company if it attains the service quality goals, and a penalty for failure to do so. As such, it is necessary that the Company know what it must do to receive the reward and avoid the penalty. Establishment of readily identifiable criteria by which service improvements can be measured should be the goal of the Commission and all parties to this case. In fact, so important is this goal, that the United States Supreme Court has had occasion to address this issue, and has held that administrative orders must set forth the requirements with clarity, and may be vacated on the grounds of vagueness: If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. . . . We must know what a decision means before the duty becomes ours to say whether it is right or wrong. Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 91 L.Ed. 1995, 1999 (1946) (citation omitted). Federal District Courts within the Ninth Circuit have echoed the Supreme Court’s requirement of definiteness for administrative agency orders. See Friends of the Wild Swan, Inc. v. U.S. Fish and Wildlife Serv., 945 F. Supp. 1388, 1396 (D. Ore. 1996), (vacating administrative action on grounds of vagueness). Washington courts have also held that administrative actions must be specific and definite. Stastny v. Board of Trustees, 32 Wn. App. 239, 252, 647 P.2d 496 (1982) (“Any statute, including a rule or regulation of an administrative agency, which forbids an act in terms so vague persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of the law”). Thus, regulatory decisions which are unduly vague can be challenged on the grounds that they violate due process under the Federal and Washington constitutions. Service Quality Index Public Counsel’s answer on this issue also misunderstands the basic premise of U S WEST’s filing, and addresses the issue of how and when to establish comprehensive service quality standards. Public Counsel supports the development of a comprehensive service quality index. It is unclear if Public Counsel envisions an index unique to U S WEST or an index to which all telecommunications carriers are subject. U S WEST objects to being held to unique service standards (outside of an AFOR) not required of other telecommunications companies in Washington. U S WEST does not object to establishing those standards, for example, in an AFOR. Here, U S WEST simply seeks clarification of standards that the Commission has already imposed, and much of Public Counsel’s discussion is therefore irrelevant to this limited issue. Consumer Complaints Public Counsel also suggests that Commission compare like quantities of complaints over time, including both internal complaints to the Company and external complaints to the Commission. The Commission has never measured internal customer complaints for a given Local Exchange Company. It is only when the customer is dissatisfied with the Company and complains to the Commission that a “complaint” is registered. If the Company representative resolves the customer concern, the customer has no complaint with U S WEST. The Commission encouraged U S WEST to strengthen its Ombuds program and it has done so. On February 18, 1998, the Company shared with Public Counsel its plan to enhance its current Consumer Appeals organization and stated that the organization will be operational as of March 1, 1998. Rather than focus on the benefit such an organization will provide to both the Commission and Public Counsel, Public Counsel focused on the improvement such a change will make on U S WEST service results and herein Public Council now expresses a concern that the “improvement” not be measured as such. Clearly, the Commission should only be interested in the number of Commission complaints that are filed. When U S WEST Commission complaints are significantly reduced, the Commission can conclude that U S WEST is taking care of its customers appropriately. Held Order Measurement U S WEST has proposed a held order standard ratio of held orders to total new (N) & transferred (T) orders. N&T orders are those orders for installation of basic exchange access lines only, not orders for vertical services and disconnects as suggested by Public Counsel (Answer at p. 6). Staff also has misunderstood the Company’s proposed held order standard of measurement. Exhibit A provides both measurements - held orders to total orders and held orders to N & T orders; U S WEST proposed the later as the measurement at page 6. At page 6 of the U S WEST Petition, the Company suggested a measurement of “Less than .15% held orders to total orders for new or relocated service” in other words N & T orders. It appear the parties did not review Exhibit A and therefore they misunderstood the proposal of the Company. The Company did not propose to measure held orders based on total orders. Directory Assistance Revenues U S WEST here has simply asked for permission to approach the Commission with additional data if such data show that the premise of the Tenth Supplemental Order was incorrect as to the level of DA calls. Such a filing would be more along the lines of a petition for reconsideration upon a showing that a mistake was made. However, the time for reconsideration will have run by the time the Company is able to ascertain that answer. Thus, the Company simply sought to address the issue in this manner. Respectfully submitted this 26th day of February, 1998. U S WEST COMMUNICATIONS, INC. By: _________________________________ Lisa A. Anderl, WSBA No. 13236