November 8, 2011 Commission's Vote.1
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Patnck W. Turner ATST South Carouna T: 003.401-2900 General Attorney-South Carolina 1600 Williams Street ru 803.254.1731 Legal Department Suite 5200 pt1285@att. corn Columbia, SC 29201 www.att.corn November 8, 2011 The Honorable Jocelyn Boyd Chief Clerk of the Commission Public Service Commission of South Carolina Post Office Drawer 11649 Columbia, South Carolina 29211 Re: Complaint and Petition for Relief of BellSouth Telecommunications, Inc. d/b/a AT&T Southeast d/b/a AT&T South Carolina v. Affordable Phone Services, Inc. d/b/a High Tech Communications, Dialtone & More, Inc., Tennessee Telephone Service, LLC d/b/a Freedom Communications USA, LLC, OneTone Telecom, Inc., dPi Teleconnect, LLC and Image Access, Inc., d/b/a New Phone Docket No. 2010-14-C, Docket No. 2010-15-C, Docket No. 2010-16-C, Docket No. 2010-17-C, Docket No. 2010-18-C, & Docket No. 2010-19-C Dear Ms. Boyd: Yesterday, the Resellers filed a letter asserting, among other things, that "the Louisiana Public Service Commission recently rejected a proposed decision adopting AT&T's positions, and remanded the case to the administrative law judge." AT&T South Carolina respectfully submits this short letter explaining why it disagrees with this characterization of the Louisiana Commission's vote. 1 In the oral argument that immediately preceded the Louisiana Commission's vote, NewPhone (a reseller) argued among other things that the ALJ's Final Recommendation lacked any analysis or reasoning supporting its conclusions,2 and the Staff argued that the Final Recommendation merely summarized the parties'ositions and adopted AT&T's position. AT&T South Carolina obviously disagrees with the remainder of the arguments in the Resellers'etter but does not address them here because it has squarely addressed — and refuted— them in various filings in these dockets. See attached Excerpt of Transcript at 80, 99. See also Attached Newphone's Request for Oral Argument at p.2, $4. Id. at 98-99. The Honorable Jocelyn Boyd November 8, 2011 Page Two Immediately following oral argument, Commissioner Holloway made "a motion that we remand this to the ALJ,* and Chairman Field added "[o]n the narrow issue of this formula methodology to be utilized."ns Commissioner Boissiere then made a substitute motion to accept the ALJ's recommendation.'ommissioner Campbell seconded this substitute motion, and Commissioner Skrmetta voted no. Commissioner Holloway abstained, stating that he "made the motion to remand it," and then Chairman Field stated "I would like to remand it so I'm going to vote no.'*n9 Accordingly, two Commissioners voted to accept the ALJ's Final Recommendation adopting AT&T Louisiana's positions, one voted not to accept the ALJ's Final Recommendation, and one voted "no" for the express purpose of accommodating a remand to the ALJ "for (urther consideration of the calculation methodology to be applied to cash back promotions.*'T&T South Carolina respectfully submits that this is a far cry from the Resellers'rroneous characterization that "the Louisiana Commission recently rejected" the ALJ's Final Recommendation. Sincerely, ('~d. (~. Patrick W. Turner PWT/nml Attachments cc: All Parties of Record 969126 Id. at 124. Id. Id. at 124-25. Id. at 125. Id. Id. at 126. 10 See attached Remand Order at 2 (emphasis added). TRANSCRIPT OF THE LOUISIANA PUBLIC SERVICE COMMISSION BUSINESS AND EXECUTIVE OPEN SESSION HELD ON SEPTEMBER 7, 2011, IN BATON ROUGE, LOUISIANA. PRESENT WERE: CHAIRMAN JAMES FIELD, COMMISSIONER LAMBERT BOISSIERE, COMMISSIONER ERIC SKRMETTA, COMMISSIONER FOSTER CAMPBELL AND COMMISSIONER CLYDE HOLLOWAY. Exhibit Docket Announcements T-31905 o T-31921 T-31121 Bellsouth Telecommunications, Inc. D/B/A ATJtT Southeast D/B/A AT&T Louisiana versus Image Access, inc. D/B/A Ncw Phone; Budget Prepay, Inc. D/B/A Budget Phone D/B/A Budget Phone, Inc.; BLC Management, LLC D/B/A Angles Communications Solutions D/B/A Mexicall Conmtunications; dPi Telcconnect, LLC; and Tennessee Telephone Sctvice, inc. D/B/A Freedom Communications USA, LLC. U-31952 Atmos Energy Cotporation, ex parte LPSC Ban Ot en Seeunn Soptontttet L Oll Baton Rnnae. La LPSC Btt,'K Open Soot inn Septonttoei 1, 011 Baton Bon . LA 1 TRANSCRIPT OF THE LOUISIANA PUBLIC SERVICE COMMISSION 2 BUSINESS AND EXECUTIVE OPEN SESSION HELD ON SEPTEMBER 3 7, 2011, IN BATON ROUCE, LOUISIANA. PRESENT WERE: 4 CHAIRMAN JAMES FIELD, COMMISSIONER LAMBERT BOISSIERE, 5 COMMISSIONER ERIC SKRMETTA, COMMISSIONER FOSTER t) CAMPBELL AND COMMISSIONER CLYDE HOLLOWAY. 8 CHAIRMAN JAMES FIELD: The Commission will come to order. 1 will lead 9 us in prayer and then Commissioner Holloway will lead us in thc plcdgc. 10 (CHAIRMAN FIELD LEADS 1N PRAYER) 11 (COMMISSIONER HOLLOWAY LEADS IN THE PLEDGE) 12 CHAIRMAN FIELD: General Counsel, you want to go ahead with the — read 13 the agenda? 14 MR. DENNIS WEBER: Commissioners, Exhibit Number 1 is announcements. 15 We have 21 items on the agenda this morning. Items 13, 14, and 17, I have been 16 advised will be passed. The next B & E is scheduled for October 13m in New 17 Orleans, Louisiana. 18 CHAIRMAN FIELD: Where will it be? Will it be in the Montelconc? 19 MR. WEBER: No, sir. Commissioner Sknnetta has that information. 20 COMMISSIONER ERIC SKRMFTTA: Mr. Chairman, the B & E will be held 21 in the Chambers of the Louisiana state Supreme Court on the comer of St. Louis 22 and Royal Street. Also anybody who needs information can talk to Ingrid LPSC BBE Open Session Sn&tentber ", util l Bntoll aou *sn LA 1 sat tluough it and your Staff made a recommendation that just says look, it's not 2 that complicated. 3 CHAIRMAN FIELD: Well, the ALJ didn't agree with Staff, so that's what 4 we'e trying to resolve. 5 MR, GUARISCO: But it's perplexing fiom the ALJ's perspective, because the 6 ALJ doesn't have — there's no reasoned analysis in thc ALJ opinion at all. Thc 7 ALJ simply summarizes the Staff's position, summarizes AT&T's position and 8 summarizes the reseller's position. But she doesn't take issue with positions or 9 doesn't analyze issues. 10 CHAIRMAN FIELD: Commissioner Sknnetta, you have a question? 11 COMMISSIONER SIMMETTA: You know, 1 guess my question is more 12 along the lines of, you know, if the state through the LPSC has established the 13 profitability at 20,74% and the application of the discount or rebate. Hoxvever 14 you look at it, that's actually altering thc ultimate revenue, dollar for dollar versus 15 percentagewise that the CLECs recover, is that right? 16 MR. GUARISCO: If I understand correctly, I think what you'e saying is, I think 17 it's correct if— 18 COMMISSIONER SKRMETTA: I mean we'rc looking at the first month too 19 because I do agree with Mr. Field that, you know, the issue for everybody is how 20 this thing plays out in the immediacy versus thc long-tenn. But what I'm looking 21 at is, if we arc looking at how the Telecom Act is reflected tltrough Sanford on thc 22 ultimate revenue for the CLEC. Then are we looking at it on a — I'm looking at a 23 dollar recovery versus a percentage issue. And that originally it would have been 80 ( ( r( Ban OJN'll Spec r Il Se(rtcnr(rer L SO(1 Baton Bongo, L.( 1 COMMISSIONER BOISSIERE: Was this argument made before the ALJ? 2 This particular argument'! 3 MR. GUARISCO; This argument? Absolutely. 4 COMMISSIONER BOISSIERE: Or has this only come up since — this 5 particular argument was made before the ALJ. 6 MR. FREY: Yes. And in post hearing briefs and in the exceptions to the 7 recommendation that was filed and also through the testimony of Mr. Gallan as 8 the correction to the AT&T methodology. 9 COMMISSIONER BOISSIERE: So the ALJ had all this information and still 10 made the decision. ll MR. FREY: Yes. 12 MR. GUARISCO: We had a witness, Mr. Joseph Gillan, who termed this 13 methodology as the AT&T method corrected for thc math error. 14 COMMISSIONER BOISSIERE: And the ALJ heard all of that evidence and 15 testimony. 16 MR. FREY: Wcll— 17 MR. GUARISCO: Ycs, the witness, Gillan, proposed — had a summary of his 18 testimony and we briefed it and he also put togcthcr an exhibit, Number Four,— 19 MR. FREY: Well, no, here's one point though and I think I get what you are 20 getting to thcrc. Actually I alii liot sul'e that thc ALJ did consider all of this and 21 thc reason why I say that is, in thc proposed recommendation, there is a summary 22 of the parties'ositions and then a statement that basically AT&T position is 23 adopted. You would presume that those were considered. Ilowever in the Lpsc Das oani sceeion sesteDu)er 7, sal i uBI'Ojl u01L \'. La 1 proposed recommendation, AT&T — the ALJ made a specific point of harping on 2 AT&T's comments in its post hearing brief, that what Staff proposed as a 3 calculation was a ncw calculation, could not be considered for lhat reason, so it is 4 possible that the ALJ did not put weight on Staffs recommendation — proposal. 5 And it was only in the post hearing exceptions where and it was stated, "Wait, this 6 is not a novel concept. This did come out in testimony." But AT&T did a good 7 job of discrediting Staff s post hearing filing to the ALJ. 8 COMMISSIONER BOISSIERE: So even though the evidence was raised 9 during the hearing before thc ALJ, you think it might not have been considered 10 properly in the decision making.