CenturyLink Opposes Increasing Wash. 911 Outage Fine

Washington UTC commissioners previously found CenturyLink liable for a December 2018 outage that resulted in at least 13,000 dropped or incomplete 911 calls (see 2306120064). The commission assessed $100 per violation in the June 9 order. CenturyLink asked the UTC June 14 to stay the order, and on June 16 filed a reconsideration petition asking the UTC to reverse the fines and its conclusion that CenturyLink was liable. The state attorney general’s public counsel filed a separate reconsideration petition June 20 seeking a much larger fine of about $13 million. The commission agreed June 22 to stay the order and sought responses to the two appeals. The UTC said in a July 7 notice it planned to resolve the petitions by Sept. 25.

CenturyLink "attempts to re-litigate the heart of this case in the guise of a narrow petition for reconsideration,” UTC staff commented. "It argues again that Comtech bears primary responsibility for the December 2018 outage, ignoring that this hearing is not about Comtech; it is about CenturyLink." The state was transitioning then to Comtech from CenturyLink as its 911 vendor. Since the commission decided the companies "were both responsible for the entirety of Washington’s 911 system while the transition from CenturyLink to Comtech was ongoing ... CenturyLink’s arguments miss the mark,” UTC staff said. “Whatever culpability Comtech may have for that event, CenturyLink cannot avoid responsibility for its own failure to ensure that the 911 system it jointly provided with Comtech was 'rendered and performed in a prompt, expeditious and efficient manner' and that the system’s 'facilities, instrumentalities, and equipment' was 'safe, kept in good condition and repair, and its appliances and service shall be modern, adequate, sufficient and efficient.'" Staff quoted from a state rule (RCW 80.36.080).

Washington UTC staff agreed with public counsel that it "incorrectly determined CenturyLink’s annual revenue for penalty assessment purposes, and treats CenturyLink inconsistently when compared to previous penalties for similar failures." The company's revenue exceeds $200 million, but the final order "relied on a report of CenturyLink’s revenues that excluded the revenue of related entities and subsidiaries to put the revenue figure at about $17.6 million,” staff said. Public counsel "is also correct that the $1.3 million penalty assessment in this case is less than the penalty imposed related to the 2014 outage, which did not last as long and affected fewer people." The UTC assessed $250 per violation then. “However, Staff also stands by its previous recommendation of $100/violation and does not contest the Commission’s ruling that each failed call is a violation of RCW 80.36.080 and no other rule or statute.”

The commission's decision was "based on substantial evidence, and CenturyLink has not established that the Commission was arbitrary or capricious in determining liability,” commented the state’s public counsel: It doesn’t matter that CenturyLink disagrees with the result. The company challenges commission "findings that CenturyLink deliberatively made no attempt to tell Comtech how to build its network and that personnel involved in the transition coordination between the companies should have known, or at least inquired about, how Comtech was setting up its network." But those "findings are supported by substantial evidence and should not be disturbed," public counsel said.

The carrier hasn’t shown the Washington UTC “failed to accurately evaluate the record,” public counsel said. “Instead, CenturyLink just reargues and reiterates the same facts and arguments previously presented to the Commission.”

The commission should grant reconsideration for CenturyLink and say the carrier bears no liability, countered the carrier: That would moot public counsel's petition. CenturyLink disagreed the penalty should have been based on a more expansive view of the company. "Instead of relying upon the revenue of" the single CenturyLink unit in the case, "Public Counsel now for the first time asks the Commission to consider the revenue of at least Qwest Corporation, if not all of the CenturyLink ILECs’ operations in Washington,” said the carrier: It should have raised that argument earlier and presented evidence showing an interrelationship between the implicated unit and Qwest. Also, Qwest wasn't a party to the case, and the commission previously denied a motion to add it to the case due to the statute of limitations, said CenturyLink.

CenturyLink flagged differences between the 2018 outage case and the 2014 case in which the company paid a larger amount per violation. In 2014, CenturyLink was the state's "undisputed 911 provider," whereas by 2018 the state was transitioning to Comtech, it said. In 2018, it was calls to Comtech-served public safety answering points that dropped, CenturyLink said. In 2014, Qwest was a named respondent and the fine was based on a settlement, the carrier added. Size is one of 11 factors the UTC uses to determine fines, CenturyLink noted. "Not only is the respondent different in this case, and the named respondent has significantly less intrastate revenues justifying a lower fine level, but the Commission evaluated each and every factor and agreed with Staff that a $100 per occurrence fine was warranted given the unique particulars of this case."