BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of: CAMELOT SQUARE MOBILE HOME PARK NO. UT-960832 In the Matter of: SKYLARK VILLAGE MOBILE HOME PARK NO. UT-961341 In the Matter of: BELMORE MOBILE HOME PARK NO. UT-961342 BRIEF OF COMMISSION STAFF I. BACKGROUND This matter arises from complaints filed against US West Communications, Inc. (“US West” or “the company”) by Camelot Square Mobile Home Park, Skylark Village Mobile Home Park and Belmore Mobile Home Park (“the parks”). Each park filed a separate complaint against US West. The complaints were consolidated by the Commission by order dated November 22, 1996. In essence, the parks have alleged that buried telephone cable at the parks has deteriorated and that US West will not repair (or replace) the cable until the parks provide access to a trench or provide conduit. Petitions at ¶ 5. The parks further allege that US West, by requiring the parks to provide access to a trench or conduit before it will repair or replace the cable, is in violation of the company’s tariff and the statutes and rules governing telecommunications companies in the state of Washington. Id. at ¶¶ 6-12. US West claims that it is not required to repair or replace the telephone cable until the parks provide access to a trench or conduit. US West’s position in this case is summarized as: U S WEST’s current tariffs clearly state that the property owner is to provide support structure, such as trench, conduit or poles, for placement of U S WEST facilities on private property whether it be for new construction or for maintenance reasons. Exhibit T-43, Direct Testimony of Theresa A. Jensen, at 1, ll. 12-14. US West relies on Section 4.6.A.2.f and Section 2.5.2.C of its WN U-31 tariff in support of its position. Id. at 2-3. Further, US West claims that tariff language supporting its position has existed since 1961. The Commission Staff does not agree with US West’s interpretation of its tariff. According to its tariff, US West is required to repair and maintain the telephone facilities within the parks, which includes the excavation of a trench and placement of conduit if necessary to effectuate the repair. Exhibit T-71, Direct Testimony of Mary M. Taylor, at 2. II. WN U-31 REQUIRES US WEST TO PROVIDE THE TRENCHING OR CONDUIT NECESSARY TO REPAIR THE FACILITIES AT THE PARKS A. Section 2.5.2.C Does Not Require US West’s Customers to Excavate the Trench or Provide Conduit to Repair the Company’s Existing Facilities WN U-31, Section 2.5.2.C reads: Any existing or new structures or work required to support telephone services on the customer’s premises shall be provided at the expense of the customer. Such structure or work may include the placement or use of trenching, conduit and/or poles to support telephone services provided on the customer’s premises. Attached as Attachment A. Contrary to US West’s assertions, this tariff provision applies only to installation and repair of facilities within buildings. See Exhibit T-71 at 4, l. 10. First, this tariff section falls under the general heading “Building Space and Electrical Power Supply.” Therefore, this section relates to situations within buildings. Despite Ms. Jensen’s testimony to the contrary, Transcript at 251, tariff headings must necessarily limit application of tariff sections to the subject matter of the heading. Tariff headings are an important tool in reading tariffs because they allow anyone reading the tariff to know the subject matter to which the language applies. US West’s WN U-31 tariff is over 700 pages long. In fact, the record reflects that US West’s WN U-31 tariff is about four inches thick. Transcript at 253. US West’s customers should not be required to wade through this lengthy document to identify each tariff section that the company could interpret as being applicable to the customer’s specific situation. If a US West customer wanted to determine the company’s policies with respect to maintenance and repair, the customer could look at the table of contents and index and find the entry “Maintenance and Repair,” which would refer the customer to Section 2.4.2. No other entry in the table of contents or index references maintenance and repair. The customer should not have to review the entire tariff to see if other sections might apply. It is also interesting to note Ms. Jensen’s testimony that “tariffs are frequently interpreted to meet a given situation, and it depends on the interpreter as to how they are interpreted.” Transcript at 251, ll. 19-21. Customers should not have to rely exclusively on the company (or staff) to interpret the tariff. Ms. Jensen stated that the language in that section was placed under the heading “Building Space and Electric Power Supply” when the tariff was converted from one format to another. Transcript at 250. This is incorrect. The tariff was converted from one format to another in Advice 2546T, effective August 11, 1994. See Exhibits 64; 72; 73, p 2. US West then modified this section in Advice 2555T, effective August 25, 1994, to read as it does today. Exhibit 74. Therefore, this language was deliberately placed under the heading “Building Space and Electric Power Supply.” It did not appear there by accident. Second, as stated in Ms. Taylor’s direct testimony, this language was approved with the understanding that it would be applied in three situations. Exhibit T-71, pp. 5-6. First, it would be applied in a situation where a customer requests service within a building, where a support structure does not exist. In this situation, the building owner would be responsible for providing the support structure within the building. Id. at 5. Second, it would apply in situations where new or additional service is requested within a building, and the existing support structure is unusable. Here, the tariff makes the building owner responsible for providing a usable support structure. Id. Finally, if the company’s facilities are inaccessible, such as enclosed within a wall, the owner is responsible for opening the wall and providing access to the company. Id. While Section 2.5.2 applies to situations within buildings, other sections apply for service outside of buildings. In situations outside the base rate area (BRA), Section 4.2 applies. In situations inside the BRA, Section 4.6.A applies. Third, US West changed the language in Section 2.5.2 as a result of the company’s discussions with staff during the Minimum Point of Presence (“MPOP”) case, Docket No. UT-920474. Washington Utilities and Transportation Commission v. U S WEST Communications, Inc., Docket No. UT-920474. Complaint and Order Suspending Tariff Revisions was issued by the Commission on July 22, 1992. On May 3, 1993 the Commission issued its Third Supplemental Order, which accepted a stipulated settlement of this case. In a July 28, 1994, e-mail memorandum to Mary Taylor, Ms. Jensen stated that this filing was intended to modify US West’ s IntraBuilding Wire and Cable Tariff and that the language did not reflect new policy, but rather clarified existing tariff language found in Section 4.6.A.1.a. When asked by Ms. Taylor to provide the docket number for the original case, Ms. Jensen identified Docket No. UT-920474. Exhibit 76. The language in Section 2.5.2 was intended to clarify the existing language in Section 4.6.A.1.a, This e-mail memorandum was sent on July 28, 1994, and the follow-up messages were dated August 3 and 8, 1994, before the August 11, 1994, effective date of the WN U-31 tariff. The message referred to Section 4.6.A.1.a, which was the section number in the pending WN U-31, rather than the section number in WN U-24, which was in effect when the e-mail was sent. therefore, it was not intended to hold property owners responsible for repair and maintenance of support structure after service was installed. Section 4.6.A.1.a, which is under the headings “Other Construction or Conditions” and “New Construction” reads: If a supporting structure is required on the private property of the applicant, it will be the applicant’s responsibility to provide the structure. The structure must meet Company standards. Upon acceptance, the ownership shall vest in the Company. (Emphasis added.) Copy attached as Attachment B. This tariff section does not support the company’s argument that property owners are responsible for repair and maintenance of support structure after the service is installed. This tariff section addresses new construction, not existing facilities. Also, this section is written to state the responsibilities of applicants, not the responsibilities of customers. Customers and applicants are each defined in the tariff and the definitions are significant here. An “applicant” is “[a] n individual or legal entity making application to the Company for service except as defined in 4.2.1.B.1.” A “customer” is “[a] person or legal entity who has applied for, been accepted, and is currently receiving service.” WN U-31 Section 2.1. Because this section applies to applicants, not customers, it does not support US West’s argument that current customers must provide trenching or conduit for the maintenance, repair or replacement of existing service. This section also states that once the support structure is placed and accepted by the company, ownership of it vests with the company. It is not reasonable for US West to obligate the customer for the repair, maintenance or replacement of the company’s property. Clearly, the language in Section 4.6.A.1.a does not support the argument that existing customers are responsible for trenching or conduit when their existing service requires repair or replacement. The tariff history of the language contained in Section 2 of WN U-31 is illustrative. The language contained in this section of the tariff historically has applied to “special structural work.” Exhibit T-71, at 6; Exhibit 73. Given this history, and the heading under which this language was placed when the company converted its tariff to the WN U-31 format, the Commission Staff had no reason to believe that the company would later apply this tariff to any situation other than installations requiring electrical supply and building space. Exhibit 76, at 6. This language was intended to apply to special installations only. As evidenced by the company’s advice letter with respect to Advice 2555T. In that letter, the US West indicated that this tariff addressed “special structural provisions on private property.” Exhibit 74. See Exhibit 72 for the resulting tariff sheet. Trenches, conduits and poles are not “special” structural provisions. They are routine requirements for the provisioning of telephone service. Exhibit T-71, at 7; see also WN U-31, Section 2.1, 1st Revised Sheet 17 (Definition of “structure”). US West cannot rely on Section 2.5.2.C for its argument that customers must provide a trench or conduit in order to repair or replace existing service. This section is limited to situations within buildings. B. Section 4.6.A.2.f Does Not Require US West’s Customers to Excavate a Trench or Provide Conduit to Repair the Company’s Existing Facilities In addition to claiming that Section 2.5.2.C supports its argument, US West argues that Section 4.6.A.2.f makes the property owner responsible to provide trenching or conduit to repair the company’s existing facilities. Exhibit T-43, at 2-3. Once again, this section does not support the company’s position. Section 4.6.A.2.f, which falls under the headings “Other Construction or Conditions,” “New Construction,” and “Buried Construction” states: The property owner is responsible for the installation, maintenance and repair of the trench or conduit utilized for the Company facilities to provide service within the owner’s private property. Exhibit 77; Attachment B. This tariff is under the heading “New Construction” which indicates that it is intended to apply in situations where a customer is requesting new or additional service, rather than repair of existing service. See Exhibit T-71, at 10. This language was adopted as a result of the MPOP case. Id. As Ms. Taylor testified: The language [in Section 4.6.A.2.f] is intended to address situations where existing support structure is unusable. The language only applies to new construction, specifically when a customer requests new or additional services which would require the installation of additional facilities, such as when existing facilities at a premise are at capacity. The intent of the language was that if the customer’s existing support structure was unusable, the customer would be responsible for repairing the structure or providing a new structure for termination of the new facilities. This language was not meant to be applied to repair situations. Id. at ll. 12-20. US West’s tariff does not define replacement of existing facilities as “new construction.” Ms. Jensen testified: Q. Can you point me to any place in the tariff that says that the replacement of deteriorated cable constitutes new construction rather than a repair? A. If you’re looking for the specific language that you’ve addressed, I don’t believe that specific language exists in the tariff. But I have not looked for it. Transcript at 295, ll. 4-10. US West’s argument that replacement of existing facilities constitutes new construction does not comport with the tariff. The argument should be rejected. C. US West Cannot Rely on Its “300 feet Policy” in Support of Its Position. In her direct testimony, Ms. Jensen stated that when repair activities require trenching of more than 300 feet, the customer must provide the support structure (trenches and conduit) Exhibit T-43, at 8. However, when the repair activity required trenching of less than 300 feet, the company opens the trench and effectuates the repair. Id. Ms. Jensen stated that this is not documented as a written policy, but is a guideline practiced by technicians in the state of Washington. Id. at n. 2. On cross-examination, Ms. Jensen stated that this “policy” is not a policy or a guideline, but is an accounting practice. Id. at 236. Ms. Jensen testified that US West’s general practice in Washington is to expense repair when that activity requires trenching of less than 300 feet, rather than capitalize it. Id. at 220. However, it is clear from the transcript that the company’s determination as to whether it will hold its customers responsible for the trenching associated with a repair depends on whether that trenching is in excess of 300 feet: Q. Who would open the trench [when the company is not placing new facilities]? A. In a case where we’re not replacing the entire facility and it was, as I understand it, less than 300 feet, the company would do it. . . . Q. What if the repair requires trenching in excess of 300 feet? Who is responsible for opening the trench or paying for the trench to be opened? A. In that case the job would be sent to engineering. It would require design work. In most instances it would require total placement of facility. You’re talking about - - 300 feet is significant in terms of lot size, and the customer would be asked by our business practice to open a trench or provide a trench or conduit. Q. Is this current company practice tariffed? A. No. Transcript at 289-91. The record shows that US West provided trenching at the parks in excess of 300 feet. See, e.g., Exhibit T-29 at 7. US West is prohibited from charging its customers for the trenching associated with repair unless that charge is in its tariff. US West’s practice to charge customers for trenching in excess of 300 feet in a repair situation is a violation of RCW 80.36.100, which provides, in relevant part: Every telecommunications company shall file with the commission and shall print and keep open to public inspection at such points as the commission may designate, schedules showing the rates, tolls, rentals, and charges of such companies for messages, conversations and services rendered and equipment and facilities supplied for messages and services to be performed within the state between each point upon its line and all other points thereon . . .The schedules printed as aforesaid shall plainly state the places between which telecommun-ications service, or both, will be rendered, and shall also state separately all charges and all privileges or facilities granted or allowed, and any rules or regulations which may in anywise change, affect or determine any of the aggregate of the rates, tolls, rentals or charges for the service rendered. Therefore, US West cannot rely on this practice as authority to charge customers for trenching with respect to repair activities. D. US West’s Line Extension Tariff Supports Commission Staff’s Position that US West Cannot Charge Customers for the Trenching or Conduit Necessary for Repair Line extension charges apply to the initial installation of facilities outside the BRA. A “line extension” is: The extension of outside plant or facilities required for the establishment of service outside of the Base Rate Area (BRA). Line extension includes the facilities and the drop or buried service wire necessary to complete the local loop in order to provide a protector/SNI at the customer premises. WN U-31, Section 2.1, Original Sheet 10. According to the tariff, the company owns and maintains all line extensions. Section 4.2.1.A. Attached as Attachment C. The applicant for service can avoid line extension charges pursuant to Section 4.2.1.B.2, which provides: An applicant may elect to furnish and set the required poles or provide a trench on their own property in accordance with the construction standards of the Company, in lieu of the applicable charges. For charges, see C., following. However, in all instances the ownership of facilities shall be entirely vested in the Company. It is clear from the tariff that the company owns and maintains all line extensions once they are installed. Ownership and maintenance of the line extension means that US West owns and maintains the facilities necessary to complete the local loop. The tariff defines “Facilities” as: Supplemental equipment, apparatus, wiring, cables and other materials and mechanisms necessary to or furnished in connection with telephone service. WN U-31, Section 2.1, 1st Revised Sheet 7. At the hearing, Ms. Jensen testified that the tariff defines “facility” as the “material, generally copper cable, that furnishes service from US West central office to the customer’s premises . . . the facility is the wire that literally goes from the office that provides the dial tone to the customer’s point of demarcation.” Ms. Jensen’s definition is much more narrow than the definition contained in the tariff, which would include poles and conduit. Prior to April 8, 1988, the definition of “facilities” included poles. Poles were removed from the definition by Advice 1900, Docket No. UT-881873, effective April 8, 1988. Advice 1900 made numerous text changes for clarification. It did not change rates, charges or conditions of service. Therefore, it is Staff’s position that “poles” are still included within the definition of “facilities” as “supplemental equipment, apparatus, . . . and other materials and mechanisms.” It is clear that an applicant for service would pay the initial line extension charges; thereafter, once ownership of the facilities vests in the company, US West is responsible for the maintenance and repair of the facilities, including excavation of the facilities, if necessary. See Exhibit T-71, at 12. It is not reasonable to hold customers responsible for the costs associated with repair and maintenance of US West’s property. E. The Land Developer Agreement Section Supports Commission Staff’s Position that US West Cannot Charge Customers for the Trenching or Conduit Necessary for Repair Under the provisions of US West’s Land Developer Agreement (“LDA”) tariff, any developer, whose residential development meets the criteria set forth in Section 4.4.1.A.1, must pay facility charges, provide US West with an easement for installation of distribution facilities, and either provide the trench and backfill or pay US West’s portion of joint trenching and backfill costs associated with distribution facilities. WN U-31, Sections 4.4.1.A.1, .6, .7; Exhibit T-71, at 12-13. The LDA tariff applies to distribution facilities. Drop facilities, which are the facilities between the pedestal terminal on the streets and the customer’s network interface, are addressed in Section 4.6.D. Exhibit T-71, at 14. “Drop wire” is defined at WN U-31, Section 2, Original Sheet 5. Section 4.4 is attached as Attachment D. The agreement is for a five year term, during which time US West remits to the developer an annual facility charge and trenching and backfill refund. Section 4.4.1.A.5, .6, .7; Exhibit T-71, at 13. As stated by Ms. Taylor in her direct testimony, in this situation, US West is actually crediting the developer for providing the trench. Exhibit T-71, at 13. The LDA tariff strongly indicates that US West, not its customers, are responsible for the repair and maintenance (including replacement) costs of the company’s facilities. For example, Section 4.4.1.A.3 provides that US West will place, own and maintain network facilities in residential developments. US West requires a legally sufficient easement to accommodate the placement and maintenance of distribution facilities. Section 4.4.1.A.7.a. US West refunds to the developers facility and trenching costs, indicating that the company is taking ownership of the facilities. It makes little sense for the developer to be responsible for the costs of repair and maintenance of facilities the company owns. F. Whether the Facilities are on Public or Private Right of Way Is Irrelevant to the Issue of Whether US West is Responsible for Costs Incurred for Maintenance and Repair US West draws a distinction between facilities located on public or private right of way and facilities located on the private property of its customers. Exhibit T-43, at 3-4. With respect to maintenance and repair of its facilities, this distinction is meaningless. In her direct testimony, Ms. Jensen states that US West would provide support structure on public and private right-of-way. Id. She also states that the company would provide support structure on privately owned streets (not deeded over to the city or county) in a subdivision if the service in that subdivision was to individual pieces of property. Id. Ms. Jensen’s testimony speaks in terms of US West’s current LDA tariff. WN U-31, Section 4.4.1, Extensions for New Real Estate Additions. See Attachment D. The LDA tariff clearly applies to mobile home parks, including additions of four or more lots to existing mobile home parks. Staff does not contend that the service to the complainants was provided under the provisions of the LDA tariff, which was established in 1991. However any new addition of four or more lots would be provided under the LDA tariff. Attachment C, Section 4.4.1.A.1. The LDA tariff applies regardless of whether the lots will be sold to individual lot owners or whether the original developer or property owner retains ownership of the individual lots. The LDA tariff also provides that US West will place, own and maintain common communications serving facilities. Id. at Section 4.4.1.A.3. Examples of common communications serving facilities are feeder and distribution cables, terminal pedestals or like devices, and access point cabinets. Id. at Section 4.4.1.A.7.a. To provision buried or underground communications facilities to residential developments, US West requires a legally sufficient easement to accommodate the placing and maintaining of the common communications servicing facilities. Id. The LDA tariff clearly indicates that the developer or owner must provide a trench and support structure for the surface streets of the development. Once US West’s facilities are placed, US West is responsible for the maintenance and repair, including the trenching and conduit necessary to effectuate the repair, regardless of whether (1) the developer retains ownership of the property and (2) the street is public or private. G. US West’s Assertion That It Has Required Customers to Provide the Trench or Conduit for Repair and Maintenance Since 1961 Is Not Supported by Its Tariff History US West argues that tariff language requiring customers or property owners to provide trenching or conduit for repair and maintenance has been in place since 1961. A review of the history of pertinent sections of US West’s Some of the prior tariffs were filed by US West’s predecessor, Pacific Northwest Bell. prior tariffs refutes this assertion. 1. History of language contained in WN U-31, Section 2.5.2.C The subject now addressed by Section 2.5.2.C was previously contained in WN U-14, Rule and Regulation 1, Description of Service, General, Original Sheet R1-2, Effective December 29, 1980, and subsequently in WN U-24, Rule and Regulation 1, Description of Service, General, Effective January 1, 1991. In both of these prior tariffs, that language read: Any special structural work required for supporting telephone equipment or telephone wiring on the customer’s premises shall be provided at the expense of the customer. See Attachment E. This language was included in the company’s WN U-31 tariff, effective August 11, 1994, when the company reformatted its WN U-24 tariff. It was not changed until US West filed Advice No. 2555T, effective August 25, 1994. Nothing in the history of this tariff indicates that the company had ever intended to apply this tariff to maintenance and repair situations. The language change in Advice No. 2555T was a result of the MPOP case. See discussion supra at 3. As discussed above, the Commission Staff have never interpreted pipes, conduit and poles to be “special” structure. These are structures normally used to provide telephone service. See supra at 6. US West contended in an e-mail message to Mary Taylor that the language in Section 2.5.2.C was to clarify language in Section 4.6.A.1.a. See supra at 4, and n. 6. Nothing in the history of the language of Section 4.6.A.1.a supports the company’s argument that customers have been responsible for trenching and conduit for repairs since 1961. 2. History of Language Contained in WN U-31, Section 4.6.A.2.f The language currently in WN U-31, Section 4.6.A.2.f, was contained in WN U-24, Schedule 9, 1st Revision of Sheet 9-5. This language was added to WN U-24 as a result of the MPOP case, and was effective July 1, 1993. See Attachment F; Exhibit 75. The MPOP case essentially addressed inside wire. US West cannot argue that this change was intended to required US West’s customers to be responsible for the costs associated with repair and maintenance of the company’s facilities. This language has always been under the heading “New Construction.” The history of this language does not support an argument that this language applies in any context other than new construction. 3. History of Language Contained in WN U-31, Section 4.2 This tariff addresses line extension charges. Historically, US West’s tariff has required customers to pay construction charges outside the BRA. WN U-14, Schedule 17, Original Sheet 17-1, Section I, effective August 31, 1981. Attached as Attachment G. Also included in the former tariff is the language “All line extensions are owned and maintained by the Company.” Because line extension are owned and maintained by US West, customers should not be held responsible for the costs associated with the maintenance and repair of US West’ s property. H. US West’s WN U-31, Section 2.4.2.C Applies to Maintenance and Repair of US West’s Facilities Maintenance and repair is addressed in US West’s tariff. WN U-31, Section 2.4.2.C. Attached as Attachment G. This section reads: The customer is responsible for loss or damage to any facilities furnished by the Company unless the customer proves that such loss or damage was caused by the negligence or intentional misconduct of others or was otherwise due to causes beyond the customer’s control. If it becomes necessary to bill for recovery of damages, the estimated cost for replacing such facilities will apply. This section places the responsibility of maintenance and repair on the company unless the customer caused the damage. In a situation where service has deteriorated, at no fault of the customer, US West is responsible for the repair of that service, even if replacement would be required in order to restore service. Maintenance and repair would include access to a trench or conduit. III. THE COMMISSION IS AUTHORIZED TO INTERPRET US WEST’S TARIFFS At the heart of this case is the interpretation of US West’s tariff. Specifically, the issue is whether any of the tariff provisions relied upon by US West support its position that customers are required to provide the trench or conduit when the company’s facilities require maintenance or repair, or ultimately, replacement. It is well within the Commission’s authority to interpret the tariffs of the public service companies it regulates. The Commission has statutory jurisdiction over tariff issues and interpretation. Re US West Communications, Inc., Docket No. UT-910785 (Oct. 17, 1991); see also RCW 80.36 and 80.04. The Commission has authority to hear complaints against pubic service companies. RCW 80.04.110(1) provides, in pertinent part: Complaint may be made by the commission of its own motion or by any person or corporation, chamber of commerce, board of trade, or any commercial, mercantile, agricultural or manufacturing society, or any body politic or municipal corporation, or by the public counsel section of the office of the attorney general, or its successor, by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any public service corporation in violation, or claimed to be in violation, of any provision of law or of any order or rule of the commission . . . . (emphasis added.) The Commission also is authorized to review the rates, rules, regulations and practices of telecommunications companies. RCW 80.36.140. This statute authorizes the Commission to determine whether US West is applying its tariffs in a lawful manner. IV. THE COMMISSION IS AUTHORIZED TO REQUIRE US WEST TO FILE A CLARIFYING TARIFF US West has unlawfully applied its tariff to require customers to provide a trench or conduit in situations where the company’s facilities need to be maintained, repaired or replaced. US West holds its customers respo