DATE:	January 11, 2012
TO:	Office of Commission Clerk (Cole)
FROM:	Office of the General Counsel (Tan) Division of Regulatory Analysis (King)
RE:	Docket No. 110071-TP – Emergency Complaint of Express Phone Service, Inc. against Bellsouth Telecommunications, Inc. d/b/a AT&T Florida regarding interpretation of the parties' interconnection agreement.
AGENDA:	01/24/12 – Regular Agenda – Interested Persons May Participate
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Balbis
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\GCL\WP\110071.RCM.DOC

 

 Case Background

Express Phone Service, Inc. (Express Phone) filed a complaint against Bellsouth Telecommunications, Inc. d/b/a AT&T Florida (AT&T Florida) (Complaint) on March 15, 2011.[1]  The Complaint alleges that AT&T Florida improperly disrupted Express Phone's service order provisioning, and cut off all services to existing Express Phone customers due to billing disputes arising out of the parties' Interconnection Agreement (ICA).^[2]  Order No. PSC-11-0291-PAA-TP, issued July 6, 2011, established that this docket should be set for an evidentiary hearing.

On December 14, 2011, Express Phone’s Request for Abeyance was denied by Order No. PSC-11-0574-PCO-TP.[3]  The Order stated that if Express Phone did not wish to proceed, the company may withdraw its complaint without prejudice and refile at a later date.  

On December 27, 2011, Express Phone filed a Voluntary Dismissal without Prejudice of its March 15, 2011, Complaint.  On January 3, 2012, AT&T Florida filed a letter that does not oppose Express Phone’s request but states that the dismissal of this docket should be without prejudice to both parties.  AT&T Florida asserts that the voluntary dismissal does not bar AT&T Florida in any proceeding from pursuing arguments raised during the course of this proceeding or from pursuing a counterclaim or separate complaint. AT&T Florida further states that the legal holdings rendered by the Commission in this docket should be considered law.  On January 5, 2012, Express Phone filed a letter in response, stating that if the complaint is refiled, the Commission should determine the propriety of any issues, legal or factual.

This recommendation addresses Express Phone’s voluntary dismissal.  The Commission is vested with jurisdiction over this matter pursuant to Chapter 364, Florida Statutes.

 

Discussion of Issues

Issue 1: 

 Should the Commission acknowledge Express Phone Service’s December 27, 2011, Notice of Voluntary Dismissal without Prejudice?

Recommendation: 

 Yes, the Commission should acknowledge Express Phone’s December 27, 2011, Notice of Voluntary Dismissal without Prejudice.  (Tan)

Staff Analysis: 

 The law is clear that a plaintiff’s right to take a voluntary dismissal is absolute[4] and once a voluntary dismissal is taken, the trial court loses all jurisdiction over the matter, and cannot reinstate the action for any reason.[5]  Both of these legal principles have been recognized in administrative proceedings[6] and are consistent with past Commission decisions.[7] Staff recommends that the Commission acknowledge Express Phone’s voluntary dismissal without prejudice of its petition as a matter of right. 

Issue 2: 

 Should this docket be closed?

Recommendation: 

 Yes. If Issue 1 is approved, there is nothing further for the Commission to consider in this docket.  Therefore, staff recommends that Docket No. 110071-TP be closed.  (Tan)

Staff Analysis: 

If Issue 1 is approved, there is nothing further for the Commission to consider in this docket.  Therefore, staff recommends that Docket No. 110071-TP be closed.