BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION


Tel-Save, Inc.,

 Complainant,

v.

U S WEST Communications, Inc.,

 Respondent.	)
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	)	No.  UT-980861
		
		
		U S WEST's Memorandum in Support of its Motion to Dismiss
		   

 COMES NOW, U S WEST Communications, Inc. (U S WEST), by and through 
undersigned counsel, and in support of its Motion to Dismiss states as follows: 
INTRODUCTION
 This is a case about slamming, i.e., the unauthorized change of a customer’s 
telecommunications carrier selection.  Slamming has become prevalent because 
developments in technology allow carriers to gain access to the data necessary 
to make unauthorized changes in a customer's choice of carrier.  In the Matter 
of Implementation of the Subscriber Carrier Selection Changes Provisions of the 
Telecommunications Act of 1996, 12 FCC Rcd. 10674, ¶ 4  (July 15, 1997).  As 
the Federal Communications Commission (FCC) has noted: 
Carriers have an economic incentive to slam because they have high fixed costs 
for network equipment and low marginal costs for providing service to 
additional customers.  Thus, providing service to additional consumers, even 
without authorization, adds to a carrier’s cash flow with little additional 
cost.  Moreover, carriers may provide service to slammed customers for a 
considerable time before the consumers become aware of the unauthorized PIC 
change. 

12 FCC Rcd. 10674, ¶ 4.
 Slamming has been a problem nationwide.  Accordingly, in the 
Telecommunications Act of 1996 (the Act), Congress gave the FCC authority to 
establish and enforce procedures designed to prevent slamming.  47 U.S.C. § 
258.  In this case, Tel-Save asks the Washington Utilities and Transportation 
Commission (the Commission) to exercise authority it does not have but rather 
is conferred exclusively on the FCC.  For the reasons that follow, Tel-Save’s 
Complaint should be dismissed on the ground that the Commission does not have 
jurisdiction to grant the relief Tel-Save requests.
ARGUMENT
 Tel-Save’s Complaint must be dismissed because the Commission does not have 
authority to decide the critical issues it raises or to grant the relief 
Tel-Save has requested.  In particular, the Commission does not have 
jurisdiction to determine what procedures U S WEST should follow in the 
execution of primary interexchange carrier (PIC) changes or to enforce 
procedures with respect to interstate services.  
 Section 258(a) of the Telecommunications Act of 1996 plainly provides:
No telecommunications carrier shall submit or execute a change in a subscriber’
s selection of a provider of telephone exchange service or telephone toll 
service except in accordance with such verification procedures as the 
Commission shall prescribe.  Nothing in this section shall preclude any State 
Commission from enforcing such procedures with respect to intrastate services.  
(Emphasis added).

47 U.S.C. § 258(a).
 By its own terms, section 258(a) applies both to intrastate and interstate 
telecommunications services.  Under the Act, "telephone exchange service" is 
defined as "service within a telephone exchange, or within a connected system 
of telephone exchanges within the same exchange area operated to furnish to 
subscribers intercommunicating service of the character ordinarily furnished by 
a single exchange, and which is covered by the exchange service charge ..."  47 
U.S.C. § 153(47).  Under the Act, the term "telephone toll service" is defined 
as "telephone service between stations in different exchange areas for which 
there is made a separate charge not included in contracts with subscribers for 
exchange service." 47 U.S.C. § 153(48).  This definition clearly encompasses 
interstate services.
 Tel-Save asks the Commission to order U S WEST to stop confirming PIC changes 
submitted by Tel-Save.  Complaint, p. 6.  To grant such relief, the Commission 
must first determine what PIC change procedures are appropriate.  Under section 
258(a), however, the Commission has no such authority.  Section 258(a) confers 
exclusive jurisdiction to the FCC to determine what verification procedures 
must be followed when subscriber changes are submitted or executed.  The FCC 
has already prescribed such procedures for the submission of PIC changes for 
long distance service (See, 47 C.F.R. 64.1100) and intends to prescribe 
procedures to be followed by local exchange carriers  in the execution of PIC 
changes.  See, RCI Long Distance, Inc. v. New York Telephone Company, 11 FCC 
Rcd. 8090, ¶ 21 (July 11, 1996) (upholding reasonableness of verification 
procedures comparable to those presently followed by U S WEST).
 Furthermore, the Commission has only limited authority even to enforce the FCC’
s procedures for the submission and execution of PIC changes.  The second 
sentence of section 258(a) makes it clear that the Commission’s sole power with 
respect to PIC changes is to enforce FCC-prescribed rules with respect to 
intrastate services only.  Since the FCC has not yet proposed procedures for 
LECs in the execution of PIC changes, it is impossible at this juncture for the 
Commission to determine whether U S WEST’s practices are consistent with the 
procedures that the FCC will prescribe.  Moreover, the relief requested by 
Tel-Save necessarily exceeds the scope of the Commission’s authority.  A bar on 
PIC change confirmation applicable to interLATA, intrastate services would 
automatically extend to interLATA, interstate services.  However, the 
Commission has no authority to enforce rules with respect to interstate 
services.  
 In its Complaint, Tel-Save asserts that the Commission has jurisdiction under 
RCW § 80.36.140 and 47 U.S.C. §§ 201 and 202.  See, Complaint, ¶ 1.  However, 
none of these provisions confers jurisdiction to set or enforce procedures 
relating to PIC changes.  RCW 80.36.140 gives the Commission authority to act 
in the event a telecommunications company’s rates or practices are unjust or 
unreasonable.  It does not grant the Commission jurisdiction in the face of 
federal preemption.  Sections 201 and 202 are generic rules applicable to 
interstate services that require just, reasonable and nondiscriminatory charges 
and practices.  
 Since the FCC has not established procedures for the Commission to enforce 
with respect to LECs in the execution of PIC change requests, the Commission 
should decline to exercise the limited authority that it has.  Until the FCC 
issues such rules, there is no way for the Commission to determine whether 
Tel-Save’s Complaint even states a cause of action.  Indeed, any decision in 
this case, whether for or against Tel-Save, may turn out to violate the 
procedures the FCC does prescribe.  
 It should be noted that dismissal of Tel-Save’s Complaint does not deprive 
Tel-Save of a remedy.  Tel-Save clearly has the right to file a complaint with 
the FCC, where this matter should really be decided.  FCC resolution of this 
matter would ensure consistent rules applicable to all fourteen states in U S 
WEST’s territory and would further the interests of judicial economy.  Tel-Save 
has filed identical complaints in thirteen of these states and it makes no 
sense to have multiple and, possibly, conflicting determinations by various 
state commissions.  
 WHEREFORE, U S WEST requests that the Commission dismiss Tel-Save's Complaint 
with prejudice.
 Respectfully submitted this 30th day of September, 1998.

     U S WEST Communications, Inc.

     ___________________________________
     Lisa A. Anderl, WSBA No. 13236