364 lines
19 KiB
Plaintext
364 lines
19 KiB
Plaintext
About litigation involving BBSs in USA.
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On January 29th and 31st, a hearing will be held before an
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administrative law judge concerning the case of the Variety & Spice
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BBS (Gross Point, MI) and Michigan Bell. In March, Michigan Bell
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informed the sysop that they would begin charging him business rates
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for his phone lines because they determined that his charging for
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access does not qualify him for residencial rates.
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Several cases of this nature have, or are currently being faught
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around the country. These files are being circulated to inform those
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who use or run BBS's of pending legislation in Michigan and Indiana.
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For more information, or if you would like to testify before the MPSC
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on the above date, please contact one of the following sources.
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Jerry Cross (voice)313-736-4544
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(bbs) 313-736-3920
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Variety & Spice BBS
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313-885-8377
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or check out one of the many Michigan BBS's that carry the Michigan
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ECHO message system.
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Please send comments or questions to
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G.Cross (Genie)
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JERRYCROSS (DELPHI)
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75046,467 (CompuServe)
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Thanks for your support!
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*** Now read this ***
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GTE TAKES ON INDIANA SYSOPS
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(April 5)
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Unilateral imposition of business rates on Bulletin Board Systems
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continues to spread. BBS operators in Indiana complain that GTE is
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forcing them to accept extra-cost business rates rather than the
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residential rates they have been paying.
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Derry Nelson, sysop of the 1149 BBS in Elkhart, Ind., says that the
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changes were a surprise. The worst part of the surprise seems to be the
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large jump in monthly rates. A typical BBS would find its monthly bill
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increased by almost 200 percent.
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"To the best of my knowledge the BBS Community was not aware of the
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changes GTE requested in their [new] tariff," Nelson said. "I know that
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I personally wasn't aware of anything until I received a letter from GTE
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stating that my rate classification was being changed from Residential to
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Business. I honestly believe that this [tariff] was `slipped' through."
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The Indiana Utility Regulatory Commission (IURC) told Nelson and other
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sysops that a tariff approving business rates for home computer lines was
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approved in January. The consensus among ELkhart BBS operators seems to
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be that the tariff should have considered in open and publicized hearings.
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The new tariff appears to give GTE wide-ranging control over its
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customers. As an example, the company can limit the length of calls "when
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in [GTE's] judgement such action is necessary." GTE claims authority to
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change a BBS to business rates because the service is provided "for use
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[of] the general public."
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Additional information is available from the Utility Consumer Counselor
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at 317/232-2494. The 1149 BBS can be reached at 219/293-1149.
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--James Moran
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----------
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FROM: Mike Marotta Area # 9 ( Michigan )
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TO: Bbs Users MSG # 130, Apr-7-90 0:31am
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SUBJECT: Why Business Rates
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These excerpts are from MPSC documents. It is established in
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regulatory commission administrative law that the PROVIDER files
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a tariff. For instance, it is a principle of regulatory law that
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a tariff cannot be effective prior to its filing date. A tariff
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that allowed this would "jump out" at a regulator who read it.
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Generally, however, the regulators ACCEPT the filing of the
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carrier and leave it to competing carriers or clients to file a
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complaint.
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-----------------------------------------------------------------
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Michigan Bell Telephone Company Tariff MPSC No. 7 was issued on
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November 21, 1966. Its age alone speaks volumes.
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<quote> "Original Sheet 11.
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GENERAL REGULATIONS
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CLASSIFICATION AND USE OF TELEPHONE SERVICES
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A. APPLICATION IS BUSINESS AND RESIDENCE RATES (Formerly Sheet
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15)
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1. The determination as to whether telephone service is Business
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or Residence is based on the character of the Use to be made of
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the service. Service is classified as business service where the
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use is primarily or substantially of a business, professional,
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institutional, or otherwise occupational nature. Where the
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business use, if any, is incidental and where the major use is of
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a social or domestic nature, service is classified as residence
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service if installed in a residence.
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"2. Business rates apply at the following locations, among
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others:
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a. In offices, stores and factories, and in quarters occupied by
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clubs, lodges, fraternal societies, schools, colleges, libraries,
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hospitals and other business establishments.
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b. In residence locations where the place of residence is in the
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immediate proximity to a place of business and it is evident that
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the telephone in the residence is or will be used for business
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purposes; and in the residence locations where an extension is
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located at a place where business rates would apply.
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c. In the residence of a practicing physician, dentist,
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veterinary, surgeon or other medical practioner who has no
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service at business rates at another location.
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d. In any residence location where there is substantial business
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use of the service and the customer has no service elsewhere at
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business rates.
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"B.1.a.(2). A customer engaged in furnishing services of a
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secretarial nature may not use Telephone Company facilities to
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receive messages for one party to be forwarded to another party,
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unless such forwarding is of a temporary or occasional nature."
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<end quote>
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---
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FROM: Mike Marotta Area # 9 ( Michigan )
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TO: All Bbs users MSG # 131, Apr-7-90 0:32am
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SUBJECT: more on rates - 2
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As a result of the "Variety and Spice BBS" incident of March
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1990, the MPSC issued a statement. Excepts follow:
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<quote>"FORM LETTER FOR COMPUTER BULLETIN BOARDS
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"If bulletin boards or access to bulletin boards is provided to
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calling parties at no charge other than that which may be
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associated with the telephone call, and are not provided in
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conjunction with a business, a profession, an institution or
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other occupation, then it would appear that the service should
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not be classified as a business. If, however, there is a charge
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associated with any level of access to the bulletin board,
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whether the charge is rendered to cover costs or produce a
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profit, then the service would be considered a business or
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classification as such. This would also apply if any of the
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previous conditions mentioned were not met." <END QUOTE>
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FROM: Mike Marotta Area # 9 ( Michigan )
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TO: All Users MSG # 134, Apr-7-90 0:25am
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SUBJECT: Michigan Bell and You
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04/06/1990 This statement was specially prepared by Michigan
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Bell to explain to the bulletin board user community their
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position on the question of business rates. The statement was
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given to me at my request by Michigan Bell's district manager for
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state government. -- Mike Marotta.
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<quote>"Telephone Service Classifications
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"Recently the question has arisen whether Michigan Bell is
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attempting to charge commercial rates to all computer bulletin
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boards in the state. Michigan Bell has not instituted a
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"program" to impose a specific class of service on any group of
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customers, i.e., computer bulletin boards. In fact, the decision
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on which class of service is required for computer bulletin
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boards is no different than it is for any other service. In
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making the decision, Michigan Bell is required to comply with
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tariffs approved by the Michigan Public Service Commission, which
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cover the matter of appropriate classification of telephone
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service.
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"The applicable tariffs require Michigan Bell to classify service
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primarily in accordance with the use that is to be made of the
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service. The tariffs specify the conditions under which a
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service is classified, for rate purposes, as business or
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residence service. For example, service is classified as
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business where the use is primarily that of a business. In the
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case of computer bulletin boards, for instance, is there is a
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charge associated with any level of access to the board, or money
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is solicited in conjunction with the board, that is considered
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conducting a business within the meaning of Michigan Bell's
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tariffs. The service, therefore, would be classified as business
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and business rates would apply. On the other hand, service that
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is used primarly for domestic purposes is classified as residence
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service. Again, using the example of computer bulletin boards,
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if the board is not associated with a business and no charge is
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assessed or solicited for access to the board, then service may
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be classified as residence in accordance with the application
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tariffs." <quote>
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*** And this ***
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STATE OF INDIANA
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INDIANA UTILITY REGULATORY COMMISSION
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IN THE MATTER OF THE COMPLAINT OF )
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TEN INDIVIDUALS AGAINST GTE NORTH ) CAUSE NO. 39005
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INCORPORATED PERTINENT TO CERTAIN )
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CHARGES FOR TELEPHONE SERVICE )
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RENDERED BY GTE NORTH INCORPORATED )
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BY THE COMMISSION:
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__________________
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James R. Monk, Chairman
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Mark W. Cooper, Chief Administrative Law Judge
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On June4, 1990, Randy Wilson, Derald A. Nelson, Clamies J.
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Lambright, David A. Reynolds, Thomas Battler, Don Billey, Jeff
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Jacobs, Jean Ludwig, George Himebaugh, Jr., and Delmar Mineard, Jr.
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(Complainants") filed a complaint with the Commission pursuant to IC
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8-1-2-54 against GTE North Incorporated ("Respondent"). By their
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complaint, the Complainants state that certain of the provisions of the
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Respondent's tariffs on file with this Commission are unjustly
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discriminatory and unreasonable to the Complainants" detriment.
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Pursuant to notice duly published as required by law, a
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Prehearing Conference was held in this Cause on July 27, 1990 at 1:30
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P.M., EST, in Room 908, State Office Building, Indianapolis, Indiana.
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At the Prehearing Conference, the parties informally agreed as to
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procedural and scheduling matters to be operative in this Cause.
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However, counsel for the Respondent indicated that it would be
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subsequently submitting a motion to dismiss herein and the Commission
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withheld the issuance of the Prehearing Conference Order pending the
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submission and ruling upon Respondent's Motion to Dismiss.
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On August 10, 1990, the Respondent filed its Answer and Motion
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to Dismiss, which filing appears in the following words and figures,
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to-wit:
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(H.I.)
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Based upon the applicable law and the filings of the parties,
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the Commission now finds as follows:
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1. Commission Jurisdiction. The Respondent is a "public
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utility" within the meaning of the Public Service Commission Act, as
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amended. IC 8-1-2-54 provides the complaints may be filed against
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public utilities with the Commission pertinent to the practices and acts
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of those utilities. The complaint initiating this Cause was filed under
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the provisions of IC 8-1-2-54 and appears to satisfy the requirements
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thereof. The Prehearing Conference was conducted pursuant to notice
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duly published as required by law. IC 8-1-2 et seq. and the
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Commission's Rules and Regulations of Practice provide the Commission
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with the authority to appropriatley adjudicate and dispose of cases
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pending before it. Therefore, the Commission has jurisdiction over the
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parties and subject matter herein.
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2. Commission Discussion and Findings. The Complainants allege
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that certain provisions of Respondent's tariffs are unjustly
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discriminatory and unreasonable and the Complainants have been caused
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harm thereby. The Complainants state that they are customers of the
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Respondent and are engaged in the hobby of operating a Computer Bulletin
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Board System ("BBS"). The Complainants allege that pursuant to these
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tariff provisions the Respondent is billing them at a business rate
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rather that a residential rate whic is inappropriate and to their
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detriment. The Complainants contend that the operation of a BBS is a
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hobby and not a business venture. The Complainants also contend that
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applying a business rate to them consititutes a rate change which must
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be subjected to public hearing prior to the application thereof.
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Respondent points out that the tariff complained of by the Complainants
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was approved by the Commission on January 31, 1990 pursuant to IC
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8-1-2-42. Respondent also points out there is no dispute between the
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parties as to whether this is the appropriate tariff under which the
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Complaintant's service should be provided. Complainant citees certain
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language set forth at Section 6.5 of the tariff which reads, as follows:
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The Company shall determine if business or residence rates apply
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to a customer service.
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Respondent goes on to set forth additional language from the
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tariif which set forth situations under which a business reate is
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properly applied. Respondent concludes that BBS clearly fits the
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categories set forth by the tariff under which a business rate applies
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Respondent goes on to set forth additional language from the
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tariif which set forth situations under which a business reate is
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properly applied. Respondent concludes that BBS clearly fits the
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categories set forth by the tariff under which a business rate applies
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and the fact that Complainants allege that BBS is a hobby does not
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remove it from the categories as defined within the tariff.
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Respondent's Motion to Dismis does not clearly set forth the
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authority or rule under which the Motion is brought. Therefore, we must
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first determine the precise character of the Motion that we may know the
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criteria under which its propriety is to be considered. Although
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Respondent's filing is denominated as a "Motion to Dismiss", a review of
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that Motion reveals that it does not clearly fall within the parameters
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of the familiar request for involuntary dimissal under T.R. 41 or
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matters properly raised under T.R. 12 (B). It appears that Respondent's
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filing is most akin to a Motion for Judgement on the Pleadings as
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provided by T.R. 12(C) or a Motion for Summary Judgement pursuant to
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t.R. 56. In any event, a review of T.R. 12(C) directs that a motion
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brought under that rule in circumstances such as these should be treated
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as one for summary judgement and be disposed of as provided by T.R. 56.
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T.R. 56(C) sets forth the standard under which a moving party may
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prevail on motion for summary judgement. The Rule provides that the
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judgement sought shall be rendered if there is no genuine issue as to
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any material fact and that the moving party is entitled to a judgement
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as a matter of law. This standard appears to be applicable in this
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situation. A review of the Complaint and Respondent's filing indicates
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that the parties agree upn the operative facts and that there exist no
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genuine dispute as to any material fact. The question remaining to the
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Commission is no then fact sensitive but whether Respondent's tariif
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provisions which allows the Respondent to bill the Complainants under a
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business rate constitutes the improper charging of a reate without prior
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Commission approval and/or whether that tariff provision is unjust and
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discriminatory. Both of which are conclusions of law for the Commission
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as contemplated by T.R. 56 (C).
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The Complainants allege that the Respondent's application of a
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business rate to the Complainants constitutes a rate change for which
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prior Commission approval must be obtained after holding a public
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hearing. The cleand and unambiguous terminology of Respondent's tarriff
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which was approved by this Commission allows the Respondent to determine
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wheter a particular service is appropriatley billed under a residence
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rate or a business rate. Clearly the tariff approved by the Commission
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authorizes the appropriate rate. The Complainants have not alleged that
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Respondent acted in a fashion inconsistent with the tariff. Therefore,
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when information comes to the Respondent that leads it to believe that a
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particular customer's situation has changed it is authorized under the
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tariff to impose a rate change consistent with the terms of the tariff.
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The Respondent's review of circumstances and decision to impose a
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different rate authorized under the tariff clearly does not constitute a
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rate change as contemplated by IC 8-1-2-42. Therefore, considering the
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undisputed facts the Complainants would not be entitled to prevail on
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this issue.
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The Complainants next allege, without specifically stating the
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reasons therefor, that Respondents tariff in question is unreasonably
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discriminatory. This Commission has for many decades been charged with
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the duty to review utility tariffs under the mandate that utility
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services should not be discriminator and must serve puble interest. A
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review of the official files of the Commission disclosed the provisions
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of Respondent's tariff in question are of a standard type and kind for
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local exchange telephone service. Further, we note that such tariff
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provisons were reviewed by the Commission's Engineering Division which
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was properly delegated with the authority to consider the propriety of
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that tariff and make ultimate approval or rejection thereof. Base upon
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a review of Respondent's tariff, we find that the tariff provisions are
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not unreasonable and discriminatory either as written or by their
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application. Therefore, we find that the Complainants are not entitled
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to prevail upon this issue as a matter of law.
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Based on forgoing, we find that Summary Judgement should be
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granted in favor of the Respondent and the Complaintants request to
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investigate the acts, practices and rates of the Respondent and for the
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holding of public hearing on the matter of the imposition of a business
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rate to the Complainants should be DENIED.
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IT IS THEREFORE ORDERED BY THE INDIANA UTILITY REGULATORY
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COMMISSION THAT:
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1. The Respondent shall be deemed to have prevailed on the
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matters at issue herein and that Complaintants request for an
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investigation into the acts, practices and rates of the Respondent and
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the holding of public hearing upon the Respondent's imposition of a
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business rate upon the Complainants shall be, and hereby DENIED.
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2. This Order shall be effective on and after the date of its
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approval.
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NOV 21, 1990
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