BEFORE THE PUBLIC SERVICE COMMISSION OF WYOMING APPEARANCES HEARD BEFORE

Transcription

1 BEFORE THE PUBLIC SERVICE COMMISSION OF WYOMING IN THE MATTER OF THE FORMAL ) COMPLAINT OF RON AND ALYCE CARTER ) AGAINST QWEST CORPORATION D/B/A ) CENTURYLINK QC ALLEGING UNRELIABLE ) AND INTERMITTENT TELEPHONE SERVICE ) IN ZONE 3 of THE LUSK, WYOMING ) EXCHANGE ) DOCKET No TC-16 (RECORDN ) APPEARANCES For the Complainants, Ron and Alyce Carter (Carters or Complainants) Lusk, Wyoming. For Company, Qwest Corporation d/b/a CenturyLinkQC (CenturyLink QC or the Company) William?Tre? Hendricks, Senior Corporate Counsel, Hood River, Oregon. HEARD BEFORE Chairman WILLIAM F. RUSSELL Deputy Chair KARA BRIGHTON FORNSTROM Commissioner ROBIN SESSIONS COOLEY LORI L. BRAND, Assistaiit Secretary, Presiding pursuant to a Special Order of the Commission. MEMORANDUM OPINION, FINDINGS OF FACT, DECISION AND ORDER (Issued October 6, 2017) This matter is before the Wyoming Public Service Commission (Commission) upon the Carter's formal Complaint against CenturyLink QC alleging unreliable and intermittent telephone service in Zone 3 of the Lusk, Wyoming exchange. The Commission, having reviewed the formal Complaint and attached exhibits, the Company's Response, the Carter' s Reply, the evidence introduced at the public hearings held on February 8, 2017, and July 13, 2017, its files regarding the Company, applicable Wyoming telecommunications law, having heard the arguments of the Parties, and otherwise being fully advised in the premises, FINDS and CONCLUDES: I l Docket No TC-16

2 Summary of Decision 1. Based on the Complaint, the hearing testimony and exhibits, the Commission finds that the quality of telecommunications service provided to the Complainants, is not "reasonably adequate service," as required by Wyo. Stat (b) in that it is not?safe, adequate, and continuous? nor is it "reasonably comparable? to the service provided in the Company' s Wyoming urban areas. The Commission directs CenturyLink QC to address and remedy the issues raised in the Carter's Complaint by providing them a 50o/o bill credit from the date of the Carter's initial filing on September 21, 2016, until a qualifying alternative backup telecommunications service is installed at CenturyLink QC's expense. The Cornrnission further finds the Company must submit a report indicating that the qualifying requirements have been, or cannot be, met prior to cessation of the 50% bill credit. CenturyLink QC is further directed to pay all installation and subscription expenses, except internet costs, associated with the alternative backup telecommunications service for the Complainants. The Company shall continue to pay these costs until it submits a report demonstrating that the Carters have safe, adequate and continuous landline service "reasonably comparable? to the service provided in the Company' s Wyoming urban areas. Introduction and Course of Proceedings 2. CenturyLink QCis duly authorized by the Commission to provide telecommunications service in its Wyoming service territories pursuant to Certificates of Public Convenience and Necessity (CPCN) as issued and amended by the Commission. CenturyLink QC is a telecommunications company as defined in Wyo. Stat (a)(xi), subject to the Commission's general and exclusive jurisdiction pursuant to Wyo. Stat et seq. 3. OnSeptember21,2016,theCartersfiledaformalComplaintandrequestforpublic hearing against CenturyLink QC alleging unreliable and intermittent telephone service at their residence and place of business on Hat Creek Road in Zone 3 of the Lusk, Wyoming exchange. A copy of the Complaint was sent to the Company advising of the Complaint and that its Response was due within 20 days of receipt. On October 10, 2016, CenturyLink QC filed its Response generally denying the Complaint. The Carters filed a Reply to the Company's Response on October 25, On November 28, 2017, the Commission issued a Special Order Authorizing One Commissioner and/or Presiding Officer to Conduct Public Hearing. s. On November 28, 2016, the Commission issued a Scheduling Order establishing the procedural schedule and setting a public hearing to commence on February 8, On January 9, 2017, the Commission issued a Notice and Order Setting Public Hearing for February 8, OnJanuary23,2017,theCartersf-iledtheirexhibits.(Exs.l-4). 2 Docket No TC- l6

3 8. OnFebruary8,2017,anexhibitconferencewasheldandthefollowingexhibits were received into evidence. Carter's Exhibit Nos. 1-4 (Tr., p 8). CenturyLink QC's Exhibit No (Tr., p. 10). Commission Exhibit Nos (Tr., pp. 7, 86). 9. OnFebruary8,2017,apublichearingwasheldintheCommission'sHearingRoom in Cheyenne pursuant to the Wyoming Administrative Procedure Act (WAPA), Wyo. Stat , et seq. The Carters appeared and provided testimony regarding their telecommunications service. Dave Johnson, Area Operations Manager, testified on behalf of CenturyLink QC. Sworn public comments and testimony were offered by Lusk Exchange CenturyLink QC customers Matt Dockery, County Commissioner Pat Wade, Kerry Sheaman, Debbie Sheaman, Ginger Webb, Buddy Webb, and Daniel E. Ritter. Generally, the Carters and customer testimony voiced concerns for the reliability and adequacy of landline service in the Hat Creek area, particularly during emergencies, and noted the lack of cell phone service in the area. At the close of the hearing, at the request of the Carters, the Commission tabled its decision for 90 days to allow CenturyLink QC time to address and resolve service issues discussed during the hearing. CenturyLink QC was directed to provide the Commission with a report of the Company's efforts to further address service reliability for the customers on Hat Creek Road. 10. On March 27, 2017, pursuant to its commitment made at the February 8, 2017, public hearing, CenturyLink QC filed its "punch list" of work items the Company would rindertake to further address service reliability for the customers on Hat Creek Road. 11. OnMay9,2017,CenturyLinkQCfiledareportwithattachmentsinformingthe Commission of the work the Company had completed and inspected on or before March 24, On June , the Commission issued a Notice and Order Setting Public Hearing for July 13, OnJulyl3,2017,anexhibitconferencewasheldandthefollowingexhibitswere received into evidence: Carter's Exhibit Nos. s-7 (Tr., pp. 7 and 68). CenturyLink QC's Exhibit Nos (Tr., p. 9). 14. ThecontinuedpublichearingwasheldJulyl3,2017,intheCommission'sHearing Room, pursuant to WAPA. The Carters again appeared and provided testimony regarding their telecommunications service and their use of a voice capable internet back-up service called NetTalk that had been installed. No one testified on behalf of CenturyLink QC, but the Company offered its report on the work completed on Hat Creek Road to address service quality issues. Sworn p?iblic comments and testimony were offered by Iusk Exchange CenturyLink QC customers County Commissioners Pat Wade, Richard Ladwig, and John Midkiff who described 3 Docket No ?633-[C- 16

4 continuing service quality issues. At the conclusion of the hearing, the Commission closed the record. 15. TheCommissionheldpublicdeliberationsonJuly24,2017,pursuanttoWyo.Stat The Commission then directed the preparation of an order consistent with its decision. Contentions of the Parties and Resulting Issues 16. The Carters' Complaint alleges unreliable and intermittent telecommunications service going back more than 20 years. They assert that after several weeks, CenturyLink QC eventually patches the problems, but there is never a permanent fix and they continue to experience service quality issues such as dropped calls, static or other noise on the line, phantom rings and periods of no dial tone. The Carters express concern that in an emergency they would be unable to call for assistance because they have no cell phone coverage. 17. In its Response, CenturyLink QC generally denies the allegations in the Complaint. It states it has conducted a review of its repair history on Complainants' account. CenturyLink QC notes that the Complainants are in a remote location and are served with a very long copper loop, which utilizes an "Anaconda" carrier system. This is the only system available to serve the Complainants other than wireless and fiber solutions, the latter of which CenturyLink QC claims it does not offer and the former of which it claims would be extremely costly. CenturyLink QC states in its Response that Complainants have reported ten issues over the last thirty-four months. Those issues have, to a large extent, involved exogenous events, such as cattle damage, rodent chews and weather events. CenturyLink QC asserts it has been responsive to these issues, quickly deploying technicians, and resolving the troubles within one to three days of the report. 18. CenturyLinkQCfurtherstatesinitsResponsethat,whileitwouldbeextremely costly to replace the facilities that serve the Complainants (with technologies that CenturyLink QC currently employs), new technologies may currently be available, or may become available, that would allow CenturyLink QC or a competitor to offer upgraded or enhanced telecommunications services to Complainants. 19. As an affirmative defense, CenturyLink QC states that the area in which Complainants receive service is extremely remote, making it difficult and costly to serve. Natural features and forces of nature contribute to the Complainants' service issues, including weather events, damage caused by livestock and wildlife, and the geographic and topographic features in the area. CenturyLink QC asserts it has been very responsive when alerted of service issues, especially given the remoteness of the area, and will continue to be responsive to any trouble reports. 20. In Reply to CenturyLink QC's Response, the Carters explain that not all of their outages are logged in CenturyLink QC's list because if the service is out for a day they may not report it. The Carters note that some of the troubles listed were attributed to cattle rubbing on pedestals and they assert it was CenturyLink QC's responsibility to ensure there was adequate 4 Docket No l633-TC-16

5 protection around the pedestals. They dispute CenturyLink QC's claim that issues were resolved in 1-3 days and state that sometimes they could not call to lodge a complaint for several days resulting in a longer total outage. The Carters note that their own log indicates their telephone service is getting progressively worse and reiterate their concerns that CenturyLink QC's efforts have not given them necessary, reliable telephone service in case of an emergency. 21. The issue is whether the Complainants are receiving reasonably adequate telecommunications service from CenturyLink QC as required by Wyoming statutes and the Commission's Rules, and, if not, whether there is a technically feasible and economically reasonable remedy to ameliorate the problem and provide the required service. Findings of Fact 22. We find the Complainants and other witnesses who testified in these proceedings were credible. 23. Prior to the February hearing, Complainants submitted a daily log of their CenturyLink QC telephone service from October 6, 2016, to January 19, 2017, and February 10, for a total of 95 days. (Ex. 2). For 54 of those 95 days, telephone service was either adequate, or the Carters were not home to use the service. For the remaining 41 days there were: 22 days with multiple dropped calls; 21 days with static or other noise on the line; 18 days with phantom rings or other ringing abnormalities; and 9 days with periods of no dial tone. The log shows that the Carters typically have fewer than 9 days of consecutive telephone service before experiencing a service issue. (Id.; Tr., p. 21, ). 24. During the February hearing, Complainants testified to the unreliability, frequent outages, and general service inadequacy of landline service in the Hat Creek area, particularly during emergencies. (Tr., pp ; 33; 47-49; 52-53; 73-74). 25. The Carters' neighbor, Matt Dockery (Tr., pp ), County Commissioner Pat Wade (Tr., pp ), Kerry Sheaman (Tr., pp ), Debbie Sheaman (Tr., pp ), Ginger Webb (Tr., pp ), Buddy Webb (Tr., pp ), and Daniel E. Ritter (Tr., pp., ) also testified, voicing concerns and complaints regarding the unreliability, and general inadequacy of landline service in the Hat Creek area, particularly during emergencies. 26. Complainants lack reliable cell phone service in the area and are unable to use a signal booster to achieve any cell coverage where they live. (Tr., p. 19, ; Ex. 4). Accordingly, the Carters drive between 17 and 18 miles before they have cell phone coverage. (Tr., p. 29, ). 27. CenturyLink testified it would not be economically feasible to extend fiber telecommunications lines to the 12 customers, including the Carters, that live on Hat Creek Road. At the February hearing, Cent?iryLink QC committed to provide an itemized "punch list" of work items to address service reliability problems in the Carters' neighborhood. (Tr., pp. 170, s Docket No TC-16

6 1. 23, and ). As a result, and at Mr. Carter's request, the hearing was continued to allow CenturyLink QC the opportunity to compile the punch list and complete the work. (Tr., pp ). 28. Following the February hearing, CenturyLink QC identified the work items it had completed, which primarily involved installing or rebuilding cattle protection for 8 pedestals. The work was finished by CenturyLink QC's contractor by the end of March and the Company submitted a Report detailing the work completed. (Exs. 201 and 202). 29. The hearing reconvened on July 13, The Complainants submitted a continuation of their daily telephone log from February 10, 2017, through June 30, 2017, for a total of 140 days. (Ex. 5). For 58 of the 140 days, telephone service was adequate, or the Carters were not home to use the service. For the remaining 82 days there were: 49 days with multiple dropped calls; 42 days with static or other noise on the line; and 25 days with phantom rings or other ringing abnormalities. (Id.). 30. BetweentheFebruaryandJulyhearing,asreflectedintheirdailylog,Complainants experienced continued unreliability, frequent outages, and general service inadequacy of landline service in the Hat Creek area. (Tr., pp. 14, , 1. 24, and 27, 11. l-24). They explained there had been no improvement in the service during that time. (Tr., pp ). Ultimately, over the course of the last year, the Carters' telephone did not work properly 50-60% of the time in an average month. (Tr., pp ). 31. TheCarters'neighborsandCountyCommissionersPatWade(Tr.,pp.56, l), Richard Ladwig (Tr., pp. 58, ), and John Midkiff (Tr., p. 62, ) also experienced the continuing service quality issues and expressed complaints regarding the unreliability of landline service by CenturyLink QC and concerns regarding access to emergency services. 32. Following the hearing in February, CenturyLink QC representatives helped the Carters install NetTalk, an Internet-based telephone service. ' (Ex. 6; Tr., p., 16, and 34, ). NetTalk can be used as a back-up telephone system when the CenturyLink QC landline is out. (Tr., pp. 28, ; 34, ). The NetTalk service used by the Carters has a 308 (Nebraska) area code, does not connect with local (Lusk) emergency services when 911 is dialed, and requires external power to place or receive calls when the power is out. (Tr., pp ; 31-34;, 41-42). 33. The Carters are very satisfied with the service technicians assigned to the Lusk exchange and we find them to be competent field technicians. (Tr., p. 26, 11. l-23). ' Internet service at the Carters' location is available through satellite. (Tr., p. 32, ). 6 Docket No TC-16

7 34. CenturyLink QC does not routinely dispatch service technicians on weekends or holidays, which prolongs service outages experienced by the Carters and other customers in the area. (Tr. pp , ; ; and l-8). 35. CenturyLink QC acknowledged its duty to provide reasonably adequate service. (Tr., pp. 70, , 72, , and 73, ). 36. Any conclusion of law set forth below which includes a finding of fact may also be considered a finding of fact and therefore incorporated herein by reference. Principles of Law 37. In regulating telecommunications services, Commission powers are set forth in Wyo. Stat , which provides, in part: (a) In addition to the powers exercised pursuant to the provisions of Wyo. Stat , the commission has the power to: (i) Investigate the methods and practices of any telecommunications company; (ii) Require any telecommunications company to conform to the laws of this state and to all rules, regulations and orders of the commission not contrary to law; *** (v) Hold hearings on complaints, or for good cause, upon notice and subject to the provisions of the Wyoming Administrative Procedure Act[.] 38. Additionally, Wyo. Stat (b) provides: (b) Any customer, and the commission on its own motion, may complain concerning the quality of service provided by a telecommunications company. A complaint shall be noticed and heard as provided for in the Wyoming Administrative Procedure Act. The commission, after notice and hearing, may direct the telecommunications company to take whatever remedial action is technically feasible and economically reasonable to provide reasonably adequate service. The commission shall authorize a telecommunications provider to recover the cost of compliance as reasonably determined by any commission order under this section. 39. Commission Rule Chapter 4, Section 2, relating to Quality and Adequacy of Service, provides: (a) The Company shall employ pr?ident management, engineering and maintenance practices, including budgeting and prioritizing resources, to assure that 7 Docket No l633-tc- 16

8 sufficient equipment and personnel are available to provide safe, adequate and continuous telecommunications service. (b) Acceptable standards for the basic elements of telecommunications service, which are technically feasible and economically reasonable to provide safe, adequate and continuous service, include at a minimum, the following: (i) The Company shall construct, operate and maintain all local access lines used for individual line telecommunications service so that the transmission loss does not exceed 8.5 db measured at a frequency within 2% of 1,000 Hz (l,ooo+/- 20). Loss is measured at the interface with the Company's network at the customer's network interface device and must account for all losses between the central office and the customer's premises; (ii) All local access lines shall receive a minimum of 20 milliamperes of line current into an assumed station resistance of 430 ohms. Total line resistance, excluding station equipment, shall not exceed the basic operational limits of the central office. Range extension equipment shall be applied to customer lines which are longer than the basic working limits of the central office; (iii) Local access lines shall be capable of transmission of a bandwidth of 2,700 Hz with a frequency range of 300 Hz to 3,000 Hz; (iv) Dual tone multi-frequency signaling (DTMF), or its functional equivalent, shall be supported for all access lines; (v) Single party telecommunications service shall permit the user to have exclusive use of a wireline subscriber loop or local access line channel for each call placed or, in the case of wireless telecommunications, a dedicated message path for the duration of a user's particular transmission; and (vi) Local access lines shall be capable of accessing operator, directory assistance, toll services and emergency (911 and E91 1 where implemented) telecommunications services. (c) The Company shall maintain its network so as to minimize customer trouble reports for telecommunications services and shall not exceed five reports per 100 access lines, per month per specific local exchange area for any consecutive threemonth period. (d) This section does not establish a level of telecommunications service quality to be achieved during periods of emergency, catastrophe and natural disaster affecting large numbers of customers, nor shall it apply to extraordinary or abnormal conditions of operation, such as those resulting from work stoppage, civil unrest or force 8 Docket No TC-16

9 ma3eure. 40. Commission Rule Chapter 4, Section 5(b)(ii), relating to maintenance standards, provides: Each Company shall adopt and comply with maintenance programs, including periodic testing, inspections and prevention, to ensure efficient operation of its system for the rendering of safe, adequate and continuous telecommunications service. 41. Section254(b)(3)ofthefederalTelecommunicationsActofl996states: (3) ACCESS IN RURAL AND HIGH COST AREAS- Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, including interexchange services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas. 42. "The language of the WAPA does not expressly provide a standard of proof in contested case hearings. See Wyo. Stat. Ann (c). We have previously recognized that the standard applicable to an adjudicatory hearing before an agency, unless otherwise stated, is the 'preponderance of the evidence' standard customarily used in civil cases. Willadsen v. Christopulos, 731 P.2d 1181, 1184 (Wyo ). A 'preponderance of the evidence' is defined as 'proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence."' Judd v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 85, 31, 233 P.3d 956, 968 (Wyo. 2010). Accordingly, where, as in Wyo. Stat , the evidentiary standard is not specifically stated, the complainants' burden of proof must be met by the preponderance of the evidence standard. Conclusions of Law 43. CenturyLink QC is duly authorized by the Commission to provide telecommunications service in its Wyoming service territories pursuant to CPCNs issued and amended by the Commission. CenturyLink QC is a telecommunications company as defined in Wyo. Stat s-103(a)(xi), subject to the Commission's general and exclusive jurisdiction to regulate it in Wyoming pursuant to Wyo. Stat through 502. CenturyLink QC is a telecommunications company required to provide reasonably adequate service to its customers, as has been acknowledged by the Company. 44. Proper public notice of these proceedings was provided in accordance with the Wyoming Administrative Procedure Act at Wyo. Stat. F which sets parameters for due process in Commission cases, including providing reasonable notice. Wyo. Stat and Commission Rule Chapter 2, Section 5(b). The public hearings were held and conducted pursuant 9 DocketNo TC-16

10 to Wyo. Stat , , , and applicable sections of the Commission's Rules. 45. AlthoughtheComplainants,theirneighbors,andothersthattestifiedatthehearing reside in rural and high cost areas of Wyoming, they are entitled to receive "reasonably comparable" telecommunications service to that provided by CenturyLink QC to its customers in Wyoming urban areas. It is incumbent upon all telecommunications companies in Wyoming to provide service sufficient for customers to communicate with friends and family, transact their business, and access emergency services when necessary. 46. CenturyLink QC's customers reported frequent and extended time periods when their "telephone service quality is such that the customer cannot effectively originate or receive calls, or otherwise use the service" and was thus by definition "out of service" as defined by Commission Rule Chapter 4, Section 1 (a)(xix). 47. The Complainants have shown, by a preponderance of the evidence, that the quality of telecommunications service provided to the Complainants is not "reasonably adequate service," as required by Wyo. Stat (b) in that it is not?safe, adequate, and continuous" and it is not "reasonably comparable" to the service provided in the Company's Wyoming urban areas. 48. The record demonstrates that in regard to the Carters' service, CenturyLink QC has not employed "prudent management, engineering and maintenance practices in accordance with industry standards to assure that sufficient equipment and personnel are available to provide adequate service," as required by Commission Rule Chapter 4, Section The record demonstrates that, in providing service to the Complainants, CenturyLink QC has not maintained its system in a manner to meet service adequacy standards in accordance with the general practices and standards of the telecommunications industry in compliance with Commission Rule Chapter 4 Section 5(b), which provides: "programs, including inspections and prevention to ensure efficient operation of its system for the rendering of safe, adequate and continuous service." The record includes extensive evidence of the Company's failure to adopt and implement an adequate maintenance program. 50. We conclude CenturyLink QC should be directed to take the following technically feasible and economically reasonable actions to improve the quality, reliability and availability of the telecommunications service for the Carters and to ameliorate the issues listed in their Complaint: a. Address any remaining maintenance and repair requests in the Hat Creek Road area no later than November 1, If CenturyLink QC is unable to address these matters as directed, it should report its progress to the Commission on a quarterly basis. 10 Docket No l633-tc- l6

11 b. Provide the Carters a 50% bill credit from the date of the Complaint filing, September 21, 2016, until a qualifying alternative backup telecommunications service is installed, at CenturyLink QC's expense. C. To qualify for cessation of the 50o/o bill credit, the alternative backup telecommunications service installed must, to the extent they are technically feasible and economically reasonable: [i] provide a 307 area code telephone number; [ii] provide fullyfunctional access to local (Lusk) emergency services when 911 is dialed; and [iii] include a battery back-up system to ensure service during power outages. The Commission further concludes that CenturyLink QC should submit a report indicating that these requirements have been, or cannot be, met prior to cessation of the 50% bill credit. d. CenturyLink QC should pay all installation and subscription expenses, except internet costs, associated with the alternative backup telecommunications service for the Complainants, until the Company submits a report demonstrating that the Carters have adequate and continuous landline service "reasonably comparable" to the service provided in the Company's Wyoming urban areas. 51. TheCommission'sfindingandconclusionssetforthhereinabovearesupportedby a preponderance of the evidence. NOW THEREFORE, IT IS ORDERED: 1. Pursuant to action taken at deliberations conducted July 24, 2017, CenturyLink QC is hereby ordered to: a. Address any remaining maintenance and repair requests in the Hat Creek Road area no later than November 1, If CenturyLink QC is unable to address these matters as directed, they should report their progress to the Commission on a quarterly basis; b. Provide the Carters a 50% bill credit from the date of the Complaint filing, September 21, 2016, until a qualifying alternative backup telecommunications service is installed at CenturyLink QC's expense as specified above in paragraph 49(c); c. Pay all installation and subscription expenses, except internet costs, associated with the alternative backup telecommunications service for the Complainants, until the Company submits a report demonstrating that the Carters have adequate and continuous landline service "reasonably comparable" to the service provided in the Company's Wyoming urban areas. 2. This Order is effective immediately. ll Docket No TC-16

12 MADE and ENTERED at Cheyenne, Wyoming, on October 6, PUBLIC SERVICE COMMISSION OF WYOMIISTG.i?'(X.:,iJ,'/',.r/7/2'p2...7Y7- WILLIAM F. RUSSELL, Chairman <;g., ', la..,?.e ( Th'T.,,:i '-#7 0FFiClAL )' CL: :;0" i ('ral : (QT. A T-3(IIL. ; i.s'ghn5eal..;y l'l?-.. l(4,. B. a? KARA BRIGHTON FORNSTROM, Deputy Chair 2?! ROBN ESSIONSCOOLEY, ommissio er,.4 <L to'] I L. BRAND, Assistant Secretary 12 DocketNo TC-16