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.) 20 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 21 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. 22