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Bell Atlantic of Maryland, Inc. v. Intercom Systems Corporation, No. 13, September Term, 2001. [Primary Jurisdiction of the Public Service Commission to Hear Consumer Complaints Regarding Services Covered by the Public Utility Companies Article of the Maryland Code (1998); Held: the Public Service Commission has primary jurisdiction over consumer complaints brought against public service companies regulated by the Public Utility

Companies Article of the Maryland Code such that consumers must first file a complaint with the Public Service Commission and exhaust their administrative remedies under the statute before adjudication of an independent judicial action against the utility company.]

IN THE COURT OF APPEALS OF MARYLAND

No. 13 September Term, 2001

BELL ATLANTIC OF MARYLAND, INC. v. INTERCOM SYSTEMS CORPORATION

Bell, C.J. Wilner Cathell Harrell Battaglia Rodowsky, Lawrence J. (retired, specially assigned) Karwacki, Robert L. (retired, specially assigned) JJ.

Opinion by Battaglia, J.

Filed: October 10, 2001

We issued a writ of certiorari in this case to determine whether the administrative remedy before the Maryland Public Service Commission ("PSC" or "Commission") as set forth in Maryland Code, Section 3-101 et seq. of the Public Utility Companies Article (1998) is of an exclusive, primary, or concurrent nature with respect to alleged acts of tortious interference with contractual relations, negligence, and breach of contract in connection with the provision of telephone services by petitioner Bell Atlantic of Maryland, Inc. ("Bell Atlantic") to respondent Intercom Micro Systems, Inc. ("Intercom"). The Court of Special

Appeals held that the statutory remedy provided by the Public Utility Companies Article was primary for consumer complaints against public service companies. We now affirm. I. Facts Respondent Intercom is an internet service provider in the Washington, D.C. metropolitan area. The company was started in 1993 by its owner, Mark S. Ballard, who Petitioner Bell Atlantic of

currently runs the business from his home in Clinton, Maryland.

Maryland, Inc. ("Bell Atlantic") serves as the local exchange carrier providing telephone service to Clinton, Maryland, which includes the business telecommunications services for Intercom. In 1995, Intercom filed seven complaints against Bell Atlantic with the PSC's

Office of Consumer Assistance and Public Affairs ("CAPA"), alleging that Bell Atlantic provided inadequate telecommunications services, engaged in improper billing, and

discriminatory treatment.1

1

In addition to formal complaints which may be filed with the PSC pursuant to Maryland Code, Section 3-102 of the Public Utility Companies Article, consumers may have their disputes with utilities "reviewed, investigated, or resolved by the Office of External Relations" of the PSC. COMAR 20.32.01.01. The PSC's Office of External Relations ("OER"), as

In one complaint, Intercom alleged that Bell Atlantic service outages affecting the dedicated service line being provided to one of Intercom's clients resulted in the loss of Intercom's business with that client. In a separate complaint, Intercom detailed how its

incoming phone calls were being routed to one of its competitors located in Laurel, Maryland. The remaining five complaints recounted the numerous losses Intercom sustained which were allegedly attributable to instances of Bell Atlantic's inadequate service and substandard customer service responses to complaints lodged by Intercom. 2 referred to in COMAR, and the PSC's Office of Consumer Assistance and Public Affairs ("CAPA") are one and the same entity. A consumer of services provided by a public service company may submit an inquiry or dispute concerning problems with service or pricing directly to the utility company. The utility must then make an investigation of the claim and report its findings to the consumer. See COMAR 20.32.01.03(B). When a consumer disputes the utility's findings, the consumer may submit an inquiry to the PSC for further investigation and review by the OER/CAPA. See COMAR 20.32.01.04(A). Following a final determination by the OER/CAPA, a party who seeks further review of an inquiry or dispute must file a written request with the Assistant Manager of OER/CAPA specifying the reasons for which it requests further review, the type of relief sought, and any additional facts or documentation relevant to the resolution of the issue. See COMAR 20.32.01.04L. Following a review of the request, the Assistant Manager must advise the parties of his disposition of the request for additional review. See COMAR 20.32.01.04L(4). At that time, the parties may decide to appeal the decision of the Assistant Manager by filing a formal complaint with the PSC pursuant to Section 3-102 of the Public Utility Companies Article. See COMAR 20.32.01.04M.
2

Representatives of Bell Atlantic, Intercom, and the technical staff of the PSC's Telecommunications Division met to discuss the complaints on July 27, 1995. At that time, all parties present at the meeting "agreed to meet certain deadlines in responding to specific data requests." Letter from Frank B. Fulton, Jr., Director, Consumer Assistance and Public Affairs, to counsel for respondent, Douglas L. Worthing (August 31, 1995). Although there was some indication that Intercom had unresolved issues remaining with Bell Atlantic following the July 27th meeting, Intercom did not appeal the findings of the CAPA Office to the PSC, stating, "[t]he Public Service Commission has fulfilled every fair aspect of this complaint." Letter from Mark Ballard, President, CEO Intercom Systems Corp. to Frank B. 2

During January and February of 1997, Intercom filed an additional sixteen complaints with the PSC's CAPA Office. Intercom asserted that Bell Atlantic had failed again to provide Intercom with adequate service, billed Intercom incorrectly for the services, and engaged in discriminatory practices. Bell Atlantic conducted an investigation of these complaints, and

filed reports with the PSC. On April 11, 1997, the CAPA Office issued a "final response," in which it found that Bell Atlantic had not violated any of the PSC's approved tariffs (fee schedules) and had not acted in bad faith with respect to the provision of telecommunication services to Intercom. The PSC informed Intercom that pursuant to COMAR 20.32.01.04A and 20.07.03.04, it had a ten day period in which it could appeal the findings of the CAPA Office by filing a formal complaint with the full Commission.3 On April 21, 1997, Intercom filed a formal complaint with the PSC, in which it incorporated the sixteen original complaints it had filed previously with the CAPA Office in Fulton, Jr. (September 28, 1995).
3

COMAR 20.32.01.04A provides that, "[i]f a customer disputes a utility's determination under Regulation .03 of this chapter, the customer may submit an inquiry to the Commission within 7 days of receipt of the utility's determination." COMAR 20.07.03.04 sets forth the appeals procedure from decisions of the PSC as follows: When an appeal from COMAR 20.32 is received, the Commission may: A. Determine whether relief should be granted based on the information submitted by the complainant/appellant, the public service company, and the investigation of the Office of External Relations; B. Dismiss the appeal if it fails to state a claim upon which relief can be granted; or C. Conduct further investigations, proceedings, or hearings as necessary. 3

1997.

Intercom also filed a seventeenth complaint seeking damages for harm suffered by Intercom's Bell Atlantic

Intercom as a result of Bell Atlantic's allegedly willful and intentional conduct. damages claimed before the PSC were of a compensatory and punitive nature.

interjected jurisdictional defenses to Intercom's claims by asserting that Intercom's request for compensatory and punitive damages went beyond the statutory authority of the PSC. The PSC determined that it had jurisdiction to entertain Intercom's complaints with regard to fee schedules, since these issues were not preempted by the Federal Communications Act, 47 U.S.C.

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