ORDER NO. 96-238

ENTERED SEP 9 1996

THIS IS AN ELECTRONIC COPY

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UT 128

DISPOSITION: APPLICATION FOR RECONSIDERATION DENIED

On July 15, 1996, U S WEST Communications, Inc., filed an application to reconsider the Commission's Order No. 96-128, issued May 16, 1996. The order was issued following a public meeting on April 30, 1996, in which the Commission ordered USWC to cease and desist from requiring customers to pay special construction charges exclusively based on the square footage and type of the customer’s premises. The Commission concluded in the order that USWC misconstrued its authority under its Network and Exchange Access Tariff PUC Oregon No. 25, 4.6.A.2. That tariff allowed USWC to impose special construction charges to protect itself "against loss in revenue from service furnished to subscribers engaged in projects of an unusually financially hazardous nature."

At the same public meeting, the Commission also suspended tariff changes proposed by USWC that would specify the conditions under which USWC would bill customers special construction charges when the customer requests installation of access lines to homes or business locations.

USWC asks reconsideration of the first ordering paragraph of the Commission's order that states:

Until completion of the Commission's investigation in UT 128, U S WEST Communications, Inc. shall cease and desist from requiring customers to pay special construction charges exclusively based on the square footage and type of the customer’s premises.

 

USWC claims the Commission acted improperly because Order No. 96-128 was entered without notice to USWC and without any finding of facts as required by ORS 756.558. USWC further claims that the Commission's order contravenes ORS 756.565 in that it improperly sets aside USWC's tariff or application of its tariff without findings.

Although not stated in the order, the Commission’s authority to issue Order No. 96-128 can be found in ORS 756.515. Section (1) provides the Commission authority to summarily investigate any matter relating to a public utility, with or without notice. Subsection (4) allows the Commission to make findings and orders, after a subsection (1) investigation, without notice or hearing. Subsection (5) allows a party aggrieved by an order issued under subsection (4) to request a hearing. The Commission's actions were consistent with that statute.

We conclude that USWC's application for reconsideration must be rejected. In the first place, USWC did receive notice of the Commission's proposed action. The Commission sent USWC a copy of the Staff public meeting memorandum, dated April 22, 1996. The Staff memo contained Staff’s recommendation that the Commission issue a cease and desist order. In fact, USWC appeared at the public meeting and argued that the cease and desist order should not be issued.

In addition, Order No. 96-128 provided USWC the opportunity to rebut the single fact underlying the order. The order states that the Commission reviewed its files and found that USWC has required some customers to pay construction costs only because those customers requested a number of lines that USWC did not deem appropriate for the size and use of the building. The Commission took official notice of the material in its files that formed the basis for this finding and gave USWC 15 days to explain or rebut the noticed fact. Order No. 96-128 at 1, footnote 1. USWC did not take advantage of that offer.

Finally, we do not believe that any factual finding was necessary to issue Order No. 96-128. The order merely informs USWC how the Commission interprets the tariff. If USWC persists in its interpretation, a customer or Commission Staff could file a complaint under ORS 756.500 et seq. or the Commission could initiate an enforcement action under ORS 756.160 et seq. The company is not prejudiced in any way by knowing the Commission's interpretation in advance of an enforcement action.

We conclude there is no basis for USWC's application for reconsideration. The application is denied.

ORDER

IT IS ORDERED that the application for reconsideration is denied.

Made, entered, and effective _____________________________.

A party may request judicial review of this order pursuant to ORS 756.580.