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