TC Telephone v. Pub. Utilities Com.
CourtCalifornia Court of Appeal
Date FiledSeptember 28, 2026
DocketG065980
StatusPublished
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Full Opinion
Filed 9/28/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TC TELEPHONE,
Petitioner, G065980
v. (Cal. P.U.C. Dec. Nos. 25-03-
011, 25-08-025)
PUBLIC UTILITIES
COMMISSION, OPINION
Respondent.
Original proceeding; petition for writ review from decisions of the
Public Utilities Commission. Annulled and remanded.
iCommLaw and Anita Taff-Rice for Petitioner.
Christine J. Hammond, Sophia J. Park and Vanessa C. Adriance
for Respondent.
* * *
Petitioner TC Telephone seeks to annul a decision of respondent
the Public Utilities Commission of the State of California (the Commission)
ordering it to repay millions of dollars it received in allegedly improper
reimbursements.
The Commission administers the Universal LifeLine Telephone
Service Program (LifeLine program), which offers affordable phone service to
low-income households (LifeLine service). LifeLine service providers
(LifeLine providers) can seek reimbursement from the Commission for
certain expenses they incur in connection with the LifeLine program. This
case involves reimbursements from a former type of LifeLine plan called
measured rate service. This plan allowed LifeLine customers to make 60
“untimed” local calls per month (the 60-call threshold), meaning they
incurred no per-minute charges for these first 60 calls.
TC Telephone was a LifeLine provider that offered measured-rate
service. It provided that service by purchasing telephone service from other
carriers and reselling it to its LifeLine customers. Although the first 60 calls
were untimed for customers, TC Telephone incurred per-minute charges for
the service it purchased and resold. The Commission’s rules allowed TC
Telephone to seek reimbursement for “[l]ost revenues caused by providing
[LifeLine] Subscribers with . . . untimed calls.” Based on this rule and
Commission staff’s guidance, TC Telephone sought and obtained
reimbursement from the Commission based on the total number of minutes of
its LifeLine customer’s calls, which the parties refer to as per-minute
reimbursement. The Commission paid these claims for per-minute
reimbursement for several years.
In July 2019, Commission staff raised concerns about TC
Telephone’s per-minute reimbursement calculations and requested
2
supporting data. But Commission staff instructed TC Telephone to continue
submitting claims for per-minute reimbursement until the issue was
resolved. A few months later, the Commission issued a resolution clarifying
that LifeLine providers could not seek per-minute reimbursement (the
resolution). They could only seek reimbursement per call, regardless of its
length, which the parties refer to as per-call reimbursement. The resolution
specified that this clarification would be applied “going forward.”
After the resolution passed, however, the Commission
investigated whether TC Telephone’s per-minute reimbursement claims prior
to the resolution had violated the Commission’s reimbursement rules. The
investigation ended with a decision finding that these pre-resolution claims
violated the reimbursement rules by seeking per-minute rather than per-call
reimbursement, among other things. The Commission ordered TC Telephone
to repay $8,157,469.39 in reimbursements it had received between January
2018 and March 2020. TC Telephone petitioned for rehearing, which the
Commission denied.
TC Telephone filed a writ of review challenging the Commission’s
decisions ordering that it repay the reimbursements and denying its
rehearing petition (collectively, the decisions). 1 We issued the writ and
allowed the parties to submit supplemental briefs. TC Telephone’s brief
argues the decisions must be annulled because the Commission’s
reimbursement rules prior to the resolution were unconstitutionally vague.
We agree. Before the resolution, the applicable rules failed to provide TC
1 As we explain below, a writ of review is the exclusive means of
challenging the Commission’s decisions. (Pacific Bell v. Public Utilities Com.
(2000) 79 Cal.App.4th 269, 272; Pub. Util. Code, §§ 1756 & 1759.) All
undesignated statutory references are to the Public Utilities Code.
3
Telephone with fair notice that it could not seek per-minute reimbursement.
The rules were broadly worded and vague, and the undisputed evidence
shows even Commission staff did not know whether LifeLine providers could
seek per-minute reimbursement. Thus, we annul the decisions and remand
the matter.
FACTS AND PROCEDURAL HISTORY
I.
THE LIFELINE PROGRAM
The Legislature enacted the Moore Universal Telephone Service
Act in 1987 (the Moore Act; § 871, et seq.), which offered affordable phone
service to low-income households. (§ 871.5, subds. (a) & (b).) The Commission
was charged with implementing and administering this program. (§ 871.5,
subd. (d).) It adopted General Order 153 (Order 153), which established the
LifeLine program and the procedures governing it. 2
During the relevant period, Order 153 allowed LifeLine providers
to offer customers two types of local calling plans: a flat rate service and a
measured rate service. 3 The flat rate service provided unlimited local calls for
about $5 a month. The measured rate service allowed LifeLine customers 60
untimed local calls per month for half the rate of the flat rate service. When
the 60-call threshold was met, the service provider could charge the LifeLine
2 Subsequent mentions of Order 153 reference the version in effect from
November 2011 to September 23, 2021, when all the pertinent events
occurred.
3 The Commission eliminated measured rate service from the LifeLine
program in December 2020.
4
customer “‘$0.08 per call for each local call in excess of 60 calls per month.’”
This proceeding and our discussion only concern measured rate service.
Section 9 of Order 153 governed reimbursement of LifeLine
service-related costs incurred by LifeLine providers. Section 9.1.1 allowed
LifeLine providers to submit reimbursement claims for “LifeLine-related
costs and lost revenues.” Section 9.2.1 specified that providers could recover
“LifeLine non-recurring charges,” which included “lost revenue from untimed
calls associated with . . . LifeLine Measured Rate Service.” Section 9.3.1
likewise stated that LifeLine providers could recover “[l]ost revenues caused
by providing subscribers with . . . untimed calls relating to . . . LifeLine
Measure [sic] Rate Service.”
The Commission also created the Universal LifeLine Trust Fund
(the LifeLine fund) to reimburse LifeLine providers for the costs of providing
discounted services to LifeLine customers. The money in the LifeLine fund
comes from telephone bill surcharges. LifeLine providers must file monthly
reimbursement claims with the Commission’s Communications Division (the
Communications Division), detailing the eligible services they provided for
the relevant month.
II.
TC TELEPHONE’S REIMBURSEMENT CLAIMS
TC Telephone was an approved LifeLine provider. To operate its
LifeLine service, TC Telephone purchased telephone service from other
carriers and resold it to LifeLine customers. 4 It incurred per-minute charges
from these carriers for the service that it purchased.
4 The record does not identify the carriers from which TC Telephone
purchased telephone service.
5
In 2013, TC Telephone e-mailed Commission staff seeking
guidance on the types of reimbursement it could request for “‘untimed calls.’”
A Commission staff member replied that “[a]s with many policies established
over decisions spanning a decade or more, the rules are not always clear. I can
explain how carriers have historically requested compensation. What I am
not able to do is give you a set of specific rules because the Commission’s
decisions do not clearly establish policies for staff to follow. For the time being
if you follow what other carriers do we will timely process your claims” (the
2013 e-mail). (Italics added.)
The 2013 e-mail continued, “[f]or first 60 untimed calls [(i.e., calls
within the 60-call threshold])--a carrier may file for lost revenues but are
limited to the measured rate charged by the underlying ILEC [(Incumbent
Local Exchange Carrier[5])][.] For calls in excess of [the 60-call threshold] a
carrier can only charge lifeline [sic] customers $0.08/minute. Carriers may
claim lost revenues for the difference between the rate charged $0.08/minute
and the carrier’s retail rate capped by the underlying ILEC’s rate. . . . [O]ur
current claim form does not have specific lines for all the types of untimed
calls (less than 31 or more than 60). I ask that you work with them on
5 ILEC’s are “[t]he former monopoly provider[s] of local exchange
service in a given service area.” They “existed before the enactment of the
Telecommunications Act of 1996,” which “‘allowed a new class of competitive
local exchange carriers . . . into the local exchange market.’” (BullsEye
Telecom, Inc. v. Public Utilities Com. (2021) 66 Cal.App.5th 301, 304, fn. 1.)
ILEC’s are required “to provide telephone service, upon request, to all to all
residential and business customers within a designated geographic area.”
They must also “interconnect their networks with the networks of
[competitive] local exchange carriers” and “lease portions of their existing
networks to their competitors.” (Core Communications, Inc. v. Verizon
Pennsylvania, Inc. (3d Cir. 2007) 493 F.3d 333, 335–336.)
6
preparing your claim in advance of submitting your claim so we can timely
process your claims.” (Italics added.)
Based on the 2013 e-mail and the text of Sections 9.2.1 and 9.3.1
of Order 153, TC Telephone believed it could seek limited per-minute
reimbursement from the LifeLine fund to cover the per-minute charges it
paid to its carriers. Thus, it filed claims for per-minute reimbursement for
both calls within and above the 60-call threshold for years, which the
Commission all approved.
In September 2018, the Department of Finance contacted the
Commission concerning TC Telephone’s increasing LifeLine reimbursement
claims. The Communications Division investigated the issue. It determined
that the increase resulted from TC Telephone seeking per-minute
reimbursement instead of a per-call reimbursement. For example, if a
LifeLine customer placed 20 calls lasting 10 minutes each, TC Telephone
would seek reimbursement for 200 minutes. A per-call reimbursement claim
would only seek reimbursement for 20 calls without regard to their length.
The claim form’s format obscured the calculation of TC Telephone’s claims
because it did not have a space to list total call minutes. Thus, using the
above example, it appears that TC Telephone would have listed 200 minutes
as 200 calls on the claim form.
In July 2019, the Commission notified TC Telephone for the first
time that its method for calculating LifeLine reimbursements might be
erroneous, and it requested supporting data.
On August 9, 2019, a Communications Division manager sent TC
Telephone a letter (the 2019 letter). The 2019 letter stated that the
“Communications Division . . . [would] continue to review in a timely manner
the invoices TC Telephone submits to the [Commission] for reimbursement of
7
LifeLine subsidy amounts. In addition, [the Communications Division would]
process payments to [TC Telephone] on a per-minute basis until the
Commission addresses in a public process the question of whether an
alternative basis should be used.” (Italics added.)
A few days later, Commission staff instructed TC Telephone via
e-mail to “[p]lease submit the June and July 2019 claim with the Untimed
Call calculation instructions that TC Telephone previously were following
[i.e., per-minute reimbursement]. We will continue to approve this until the
Commission has a resolution. The June and July 2019 claims will be
expedited” (the 2019 claims e-mail). (Italics added.)
III.
THE RESOLUTION
On March 26, 2020, the Commission issued Resolution T-17687
(defined above as the resolution), which “clarifie[d] . . . provisions of [Order]
153, regarding the rules for carrier reimbursement of [LifeLine service]
costs.” Specifically, it “clarif[ied] that . . . [Order] 153 [was] intended to
provide reimbursement to [LifeLine] providers that provide Measured Rate
Service on a per call basis, not a per minute basis. For [LifeLine] providers
offering Measured Rate Service, on a going forward basis we direct staff to
calculate provider reimbursement on a per call basis.” (Italics added.)
The resolution explained that the Commission had “learned that
certain carriers’ LifeLine customers [had] switched to a Measured Rate plan,
and that these carriers [were seeking] reimbursement from the [LifeLine]
fund on a per minute basis for charges on each call under the Measured Rate
plan. . . . The Commission was recently contacted by the California
Department of Finance regarding large dollar amount claims for
reimbursement under the ‘untimed local calls’ provision of [Order] 153 . . . .”
8
“The Commission never explicitly stated that [LifeLine] providers
should seek reimbursement, or be permitted to obtain reimbursement, for the
Measured Rate Service plan . . . on a per minute basis. However, some
carriers have sought such reimbursement in the past. Certain carriers may
be engaging in a form of arbitrage because of what appears to be a lack of
clarity in [Order] 153, seeking reimbursement amounts calculated in a way
that was not contemplated by earlier decisions or [Order 153].” (Italics added.)
The resolution concluded that per-minute reimbursement was
“unfair and inequitable, and unsustainable with regards to the [LifeLine]
fund.” It “order[ed] that this practice be stopped,” and clarified that “[g]oing
forward, [LifeLine] providers will only be permitted to seek reimbursement
from the [LifeLine] fund for lost revenues associated with Measured Rate
Service on a per call basis, not per minute.” (Italics added.)
The resolution also contained comments from various groups and
Commission staff’s responses to those comments. The Public Advocates Office
agreed with the resolution’s conclusions and argued that it was “within the
Commission’s authority to require TC Telephone to return the millions of
dollars that it sought from the LifeLine Fund.” Commission staff appeared to
dismiss this argument, “not[ing] that this Resolution only affects claims on a
‘going-forward basis.’” (Italics added.)
TC Telephone purportedly complied with the resolution in its
subsequent reimbursement requests. But it exited the market and ceased
operations “in November 2020 [purportedly] due to the lack of reimbursement
from the Commission for Lifeline services provided.”
9
IV.
THE DECISIONS
A. The Initial Decision
In October 2022, the Commission issued an Order to Show Cause
and began investigating whether TC Telephone’s reimbursement claims prior
to the resolution had violated the LifeLine program’s rules. TC Telephone
denied any violations. It claimed that it had properly submitted
reimbursement claims from 2013 until March 2020 based on (1) Commission
staff’s guidance, (2) the reimbursement claim forms, and (3) Order 153’s text.
The investigation culminated with Decision 25-03-011 (the initial
decision), issued on March 13, 2025. The initial decision found that TC
Telephone’s reimbursement claims prior to the resolution had violated the
Moore Act and Order 153. TC Telephone had over-collected $8,157,469.39
from the LifeLine fund between January 2018 to March 2020 by improperly
seeking (1) per-minute reimbursement for all calls, and (2) reimbursement for
calls above the 60-call threshold. The initial decision ordered TC telephone to
repay the LifeLine fund this amount plus $1,631,494 in interest.
The initial decision’s reasoning was based on Order 153, which
allowed LifeLine providers to recover reimbursement for nonrecurring
charges, including “‘lost revenue from untimed calls associated with
[LifeLine] Service.’” It noted that section 8.1.5.4 of Order 153 stated that
“‘Subscribers of California LifeLine Measured-Rate Service shall receive 60
untimed local calls per month.’” “As the only recoverable calls identified by
[Order] 153 are ‘untimed calls,’ . . . TC Telephone should not [have sought]
reimbursement for per-minute calls as those do not fit within the plain
meaning of the word ‘untimed’ which does not include a temporal component.
10
The Commission’s interpretation is consistent with the plain meaning of
‘untimed’ which means ‘not timed; not regulated with respect to time.’” 6
The initial decision dismissed TC Telephone’s arguments that
(1) its reimbursement approach had been based on Commission staff’s
guidance, and (2) the resolution had only recently clarified that per-minute
reimbursement would be disallowed “‘going forward.’” As to the first
argument, the initial decision explained that “[t]he guidance of a staffer
cannot bind the Commission since the question of what is required by either
a statute, decision, or general order lies within the province of the five
Commissioners to decide.” It also noted that relying on staff opinions violated
the maxim that ignorance of the law is no excuse.
As to the second argument, the initial decision explained that
“[w]hile [the resolution] is styled as a clarification, the Commission makes its
position clear as to what the law has always been regarding reimbursable
LifeLine Fund claims.” (Italics omitted.) “Tellingly, [the resolution] did not
give any LifeLine service providers a pass for improperly seeking
reimbursement from the LifeLine Fund before [the resolution] was adopted.
At best, [the resolution] acknowledged that it was ‘apparent that language in
[Order 153] was not sufficiently clear for all [LifeLine service] providers.’”
B. Rehearing Petition
TC Telephone filed a rehearing petition with the Commission,
arguing the initial decision had several errors. First, the resolution created a
material change that eliminated per-minute reimbursement, and the initial
6 The initial decision found TC Telephone had improperly sought per-
minute reimbursement from July 2013 to April 2020. It does not explain why
the Commission only ordered TC Telephone to repay the reimbursements
collected from January 2018 to March 2020.
11
decision unlawfully applied this change retroactively. Second, the initial
decision ignored the plain language in the resolution that this material
change would only be applied prospectively. Third, retroactively applying this
material change violated section 728. Fourth, the initial decision violated due
process by penalizing TC Telephone for violating a vague rule. Fifth, the
Commission improperly ordered TC Telephone to pay interest.
The Commission made minor changes to the initial decision, but
rejected TC Telephone’s arguments and denied its rehearing request in
Decision 25-08-025 (defined above with the initial decision as the decisions).
TC Telephone filed this petition for a writ of review of the
decisions under section 1756. We issued the writ, directed the Commission to
certify its record, and allowed the parties to file supplemental briefs. TC
Telephone primarily repeats the arguments from its rehearing petition in
this proceeding. Because we agree the decisions violate due process, we do not
address the other arguments. 7
DISCUSSION
I.
THE SCOPE OF TC TELEPHONE’S ARGUMENTS
TC Telephone contends the decisions should be annulled because
they improperly ordered it to repay $8,157,469.39 to the LifeLine fund. This
sum was calculated based on two allegedly improper practices: (1) seeking
per-minute reimbursement for all LifeLine calls, and (2) seeking
reimbursement for LifeLine calls above the 60-call threshold. TC Telephone
only appears to challenge the first ground in this proceeding.
7 TC Telephone’s requests for judicial notice are denied as irrelevant to
our analysis. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison
(1998) 18 Cal.4th 739, 748, fn. 6.)
12
TC Telephone’s argument revolves around the resolution. It
makes the same general argument using different legal theories: the
reimbursement rules were unclear until the resolution clarified them, and
the Commission unlawfully applied the resolution retroactively to TC
Telephone’s prior claims.
The resolution only addressed per-minute reimbursement. It did
not discuss whether LifeLine providers could seek reimbursement for calls
above the 60-call threshold. Since TC Telephone’s arguments are based on
the resolution, they only address the portion of the decisions concerning per-
minute reimbursement. Indeed, TC Telephone’s due process argument
asserts that “it was completely reasonable [for TC Telephone] to believe that
it could recover its [limited] per-minute lost revenues for the first sixty calls
each month.” (Italics added.)
To the extent TC Telephone does challenge the Commission’s
finding that it improperly sought reimbursement for calls above the 60-call
threshold, it has not met its burden for the reasons above. (See City and
County of San Francisco v. Public Utilities Com. (2025) 108 Cal.App.5th 22,
53 [“[A] petitioner challenging a Commission decision bears the burden of
establishing the grounds for setting aside the decision and that any error was
prejudicial”].)
II.
STANDARD OF REVIEW
The Commission “‘“is a state agency of constitutional origin with
far-reaching duties, functions and powers. [Citation.] The [California]
Constitution confers broad authority on the [C]ommission to regulate
utilities, including the power to fix rates, establish rules, hold various types
of hearings, award reparation, and establish its own procedures.”’” (Gantner
13
v. PG&E Corp. (2023) 15 Cal.5th 396, 401–402.) A writ petition is the only
means for obtaining judicial review of a decision by the Commission. (Pacific
Bell Wireless, LLC v. Public Utilities Com. (2006) 140 Cal.App.4th 718, 728–
729.) Thus, appellate courts should address the merits of such writ petitions
when they are procedurally proper and appear to have merit. (Ibid.)
The issues an appellate court may address are limited to whether
the Commission (1) acted without, or in excess of, its powers or jurisdiction;
(2) proceeded in the manner required by law; (3) issued a decision that was
unsupported by the findings; (4) made findings not supported by substantial
evidence; (5) issued a decision that was procured by fraud or was an abuse of
discretion; or (6) violated a constitutional right. (§ 1757.)
For constitutional challenges, the “court of appeal shall exercise
independent judgment on the law and the facts, and the findings or
conclusions of the commission material to the determination of the
constitutional question shall not be final.” (§ 1760.) As our Supreme Court
has explained, though, section 1760 was not “intended to attempt to transfer
to [the appellate courts] the traditional regulatory functions of the
commission or to constitute the [appellate courts] the arbiter[s] of disputed
questions of fact in matters coming before the commission.” (Pacific Tel. &
Tel. Co. v. Public Util. Com. (1965) 62 Cal.2d 634, 646.) “[T]he question of the
weight of the evidence in determining issues of fact lies with the commission
acting within its statutory authority.” (Ibid.) But “‘[f]indings and conclusions
drawn from undisputed evidence and from which conflicting inferences may
not reasonably be drawn, present questions of law.’” (Id. at p. 647.)
Appellate courts “have jurisdiction to review, reverse, correct, or
annul any order or decision of the commission or to suspend or delay the
execution or operation thereof, or to enjoin, restrain, or interfere with the
14
commission in the performance of its official duties, as provided by law and
the rules of court.” (§ 1759.)
III.
DUE PROCESS
A. Applicable Law
The Fifth Amendment’s Due Process Clause “requires the
invalidation of laws that are impermissibly vague. A conviction or
punishment fails to comply with due process if the statute or regulation
under which it is obtained ‘fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.’” (F.C.C. v. Fox Television
Stations, Inc. (2012) 567 U.S. 239, 253.) “‘[T]he root of the vagueness doctrine
is a rough idea of fairness.’” (Cranston v. City of Richmond (1985) 40 Cal.3d
755, 763.)
“In the administrative law context, the failure to give fair notice
to a regulated entity of what is forbidden or required justifies vacating the
imposed punishment resulting from the alleged violation of a
regulation. [Citation.] [T]he due process clause requires that agencies
bringing an enforcement action “‘provide,’” through written guidance,
regulations, or other activity, ‘“a person of ordinary intelligence fair notice of”’
what is prohibited or required.” (Kerman Telephone Co. v. Public Utilities
Com. (2023) 94 Cal.App.5th 920, 931–932.) Punishment under a regulation
“‘should not attach where one could not reasonably understand that his
contemplated conduct [was] proscribed.’” (Cranston v. City of Richmond,
supra, 40 Cal.3d at p. 764.)
“‘[V]agueness challenges to statutes which do not involve First
Amendment freedoms must be examined in the light of the facts of the case
15
at hand.’” (United States v. Harris (9th Cir. 2013) 705 F.3d 929, 932.) TC
Telephone’s as-applied challenge turns on whether it had “adequate notice
. . . that [its] particular conduct was proscribed.” (Ibid.; Cranston v. City of
Richmond, supra, 40 Cal.3d at p. 765 [“[I]n judging the constitutionality of [a
rule] we must determine . . . whether it is vague as applied to this appellant’s
conduct in light of the specific facts of this particular case”].)
Here, the relevant rules and undisputed evidence show that TC
Telephone was not given fair notice that per-minute reimbursement was
proscribed prior to the resolution.
B. Order 153’s Text
Prior to the resolution, nothing in Order 153 indicated that
seeking per-minute reimbursement was improper. Section 8.1.5.4 of Order
153 stated that measured-rate service subscribers “shall receive 60 untimed
local calls per month.” (Italics added.) Sections 9.2.1 and 9.3.1 then broadly
allowed LifeLine providers to recover “lost revenue” incurred from providing
LifeLine customers with these “untimed calls.” Section 9.2.1 explained that
LifeLine providers could recover “LifeLine non-recurring charges,” including
“lost revenue from untimed calls associated with . . . LifeLine Measured Rate
Service.” Section 9.3.1 likewise stated that LifeLine providers could recover
“[l]ost revenue caused by providing subscribers with . . . untimed calls
relating to [LifeLine service].” (Italics added.)
Order 153 did not identify which specific “lost revenues” from
“untimed calls” were reimbursable. Given this lack of guidance in Order 153
along with Commission staff’s recommendations, “lost revenues” could be
reasonably interpreted to include the limited per-minute costs TC Telephone
incurred for providing its LifeLine customers with untimed calls. These per-
minute costs reasonably reflected “[l]ost revenues caused by providing
16
[LifeLine] subscribers with” untimed calls. Indeed, as we discuss in the next
section, Commission staff did not know that per-minute reimbursement was
prohibited until the resolution was issued.
The initial decision reasoned that since “the only recoverable
calls identified by [Order] 153 are ‘untimed calls,’ a provider such as TC
Telephone should not be seeking reimbursement for per-minute calls as those
do not fit within the plain meaning of the word ‘untimed’ which does not
include a temporal component. The Commission’s interpretation is consistent
with the plain meaning of ‘untimed’ which means ‘not timed; not regulated
with respect to time.’”
The above reasoning concerning pre-resolution requests for
reimbursement is unpersuasive. It improperly conflates the nature of the call
from the customer’s perspective with the service provider’s reimbursement.
The word “untimed” describes the nature of the call for the customer: a
customer with measured rate service receives 60-untimed calls per month.
But “untimed” does not describe the “lost revenues” for which a service
provider may seek reimbursement. While the customer receives 60-untimed
calls, nothing in Order 153 indicates that a LifeLine provider is limited to
reimbursement on an “untimed” basis as well. Rather, it may broadly recoup
“[l]ost revenues caused by providing subscribers with . . . untimed calls
relating to [LifeLine service].”
We do not mean to say that the Commission could not interpret
Order 153 to prohibit per-minute reimbursement. There is no dispute that
the resolution is a lawful clarification of Order 153’s reimbursement rules.
But prior to the resolution, the above language in Order 153 did not provide
fair notice to TC Telephone that per-minute reimbursement was barred.
17
C. The Undisputed Evidence
Our conclusion that Order 153 failed to provide TC Telephone
with fair notice is supported by the undisputed evidence showing that
Commission staff was also unsure whether per-minute reimbursement was
prohibited prior to the resolution.
1. Commission staff’s communications
In 2013, TC Telephone asked Commission staff for guidance on
allowable reimbursements for “‘untimed calls reimbursement.’” Commission
staff replied in the 2013 e-mail that “the rules are not always clear. . . . [I] am
not able to . . . give you a set of specific rules because the Commission’s
decisions do not clearly establish policies for staff to follow.” The 2013 e-mail
suggests that Commission staff was unsure whether per-minute
reimbursement was allowed. This uncertainty is even more apparent in the
2019 letter and 2019 claims e-mail, in which Commission staff expressly
instructed TC Telephone to continue submitting claims for per-minute
reimbursement.
The 2019 letter was sent by the Communications Division, which
was in charge of processing reimbursement claims. The 2019 letter stated
that the Communications Division would continue to “process payments to
[TC Telephone] on a per-minute basis until the Commission addresse[d] in a
public process the question of whether an alternative basis should be used.”
(Italics added.) Likewise, in the 2019 claims e-mail, Commission staff
instructed TC Telephone to submit June and July 2019 claims “with the
Untimed Call calculation instructions that TC Telephone previously were
18
following [i.e., per-minute reimbursement]. We will continue to approve this
until the Commission has a resolution.” 8 (Italics added.)
In contrast, we have not been cited any evidence showing that
Commission staff instructed TC Telephone or any other party not to submit
per-minute reimbursement claims before the resolution.
2. The resolution
Commission staff’s uncertainty about per-minute reimbursement
is further shown by the resolution, which repeatedly stated that the
prohibition on per-minute reimbursement applied only prospectively. This
repeated language indicates that the resolution’s prohibition on per-minute
reimbursement was a new interpretation of Order 153’s reimbursement
rules:
• The resolution directed Commission staff “on a going forward basis
. . . to calculate [LifeLine] provider reimbursement on a per call basis.”
(Italics added.)
• It determined that seeking per-minute reimbursement was
“unsustainable with regards to the [LifeLine] fund.” It “order[ed] that
this practice be stopped” and explained that “[g]oing forward,
[LifeLine] providers [would] only be permitted to seek” per-call
reimbursement for measured-rate service. (Italics added.)
• The resolution stated that “it [was] necessary for the Commission to
clarify that going forward, reimbursements for Measured Rate Service
shall be calculated on a per-call basis.” (Italics added.)
8 It appears that the 2019 claims e-mail was also sent by staff in the
Communications Division, but we have not found evidence in the record to
corroborate this.
19
• Commission staff dismissed the Public Advocates Office’s request that
the Commission order TC Telephone to repay the per-minute
reimbursements it had received because the “Resolution only affects
claims on a ‘going-forward basis.’” (Italics added.)
When considering the resolution’s language along with the 2013
e-mail, the 2019 letter, and the 2019 claims e-mail, the only reasonable
inference is that Commission staff did not know whether per-minute
reimbursement was prohibited until the resolution. Since Commission staff
did not know whether per-minute reimbursement was prohibited prior to the
resolution, TC Telephone cannot fairly be punished for failing to know that
the practice was prohibited.
D. The Commission’s remaining arguments
The Commission contends it has consistently interpreted Order
153 to prohibit per-minute reimbursement. It cites two prior Commission
decisions from the 1990s involving an audit of Pacific Bell’s LifeLine
program: In the Matter of the Audit Report on Pacific Bell’s Universal Lifeline
Telephone Program (1992) 46 Cal.P.U.C.2d 496 [1992 Cal.P.U.C. Lexis 776]
(Pacific Bell Audit 1), and Investigation on the Commission’s own motion into
the method of implementation of the Moore Universal Telephone Service
Account; In the Matter of the Audit Report on Pacific Bell’s Universal Lifeline
Telephone Program (1994) 56 Cal.P.U.C.2d 683 [1994 Cal.P.U.C. Lexis 685]
(Pacific Bell Audit 2).
Neither of these decisions addressed per-minute reimbursement.
They both found that Pacific Bell had improperly sought reimbursement for
calls above the 60-call threshold, which is not at issue here. (Pacific Bell
Audit 1, supra, 1992 Cal.P.U.C. Lexis at p. *11; Pacific Bell Audit 2, supra,
1994 Cal.P.U.C. Lexis at p. *27.)
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The Commission also asserts that it is not bound by the
recommendations its staff gave to TC Telephone. This is immaterial to the
issue we face here: whether TC Telephone had fair notice that it could not
seek per-minute reimbursement. The undisputed evidence shows that
Commission staff did not know that this practice was prohibited prior to the
resolution. Thus, it is unreasonable for the Commission to conclude that TC
Telephone should have known that it could not seek per-minute
reimbursement during this period.
In sum, the Commission failed to inform TC Telephone “through
written guidance, regulations, or other activity” that it could not seeking per-
minute reimbursement prior to the resolution. (Kerman Telephone Co. v.
Public Utilities Com., supra, 94 Cal.App.5th at pp. 931–932.) Thus, we annul
the decisions.
DISPOSITION
Decision 25-03-011 and Decision 25-08-025 are annulled. On
remand, to the extent allowed by law, the Commission may recalculate the
amount TC Telephone must repay consistent with this opinion. (See
California Manufacturers Assn. v. Public Utilities Com. (1979) 24 Cal.3d 263,
265 [annulling the Commission’s decision and remanding for further
proceedings]; Calaveras Telephone Co. v. Public Utilities Com. (2019) 39
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Cal.App.5th 972, 984 [same].) TC Telephone is entitled to the costs it
incurred in this original proceeding. 9
MOORE, J.
WE CONCUR:
MOTOIKE, P. J.
SERVINO, J.
9 Since we cannot predict what the Commission will do on remand, we
do not address TC Telephone’s arguments concerning interest.
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