{ "id": 9248881, "name": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; BELLSOUTH TELECOMMUNICATIONS, INC., Complainant-Appellees v. THRIFTY CALL, INC., Respondent-Appellant", "name_abbreviation": "State ex rel. Utilities Commission v. Thrifty Call, Inc.", "decision_date": "2002-11-19", "docket_number": "No. COA01-1466", "first_page": "58", "last_page": "71", "citations": [ { "type": "official", "cite": "154 N.C. App. 58" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "363 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357981 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "169-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0153-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-60", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "374 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "460", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526818 ], "year": 1988, "pin_cites": [ { "page": "297", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0290-01" ] }, { "cite": "358 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "346", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 62-94(b)(5) (1982)" } ], "opinion_index": 0 }, { "cite": "320 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729581 ], "year": 1987, "pin_cites": [ { "page": "352", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 62-94(b)(5) (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0344-01" ] }, { "cite": "146 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "266 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560856 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0366-01" ] }, { "cite": "81 FPSC 73", "category": "reporters:state", "reporter": "FPSC", "year": 1981, "opinion_index": 0 }, { "cite": "82 FPSC 179", "category": "reporters:state", "reporter": "FPSC", "year": 1982, "opinion_index": 0 }, { "cite": "88 Pub. Util. Rep. 4th 462", "category": "reporters:specialty", "reporter": "P.U.R.4th", "year": 1987, "pin_cites": [ { "page": "464" } ], "opinion_index": 0 }, { "cite": "392 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168413 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0157-01" ] }, { "cite": "434 U.S. 1010", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6490882, 6490980, 6491269, 6490566, 6491145, 6491340, 6490670, 6490484, 6490740, 6490329, 6491069 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/434/1010-06", "/us/434/1010-07", "/us/434/1010-10", "/us/434/1010-03", "/us/434/1010-09", "/us/434/1010-11", "/us/434/1010-04", "/us/434/1010-02", "/us/434/1010-05", "/us/434/1010-01", "/us/434/1010-08" ] }, { "cite": "567 F.2d 84", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3532920, 906069 ], "year": 1977, "pin_cites": [ { "page": "86", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/185/0217-01", "/f2d/567/0084-01" ] }, { "cite": "746 F.2d 1492", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3805242, 648908 ], "year": 1984, "pin_cites": [ { "parenthetical": "quoting California v. FCC, 567 F.2d 84, 86 (D.C. Cir. 1977) (per curiam), cert. denied, 434 U.S. 1010 (1978); citing United States v. Southwestern Cable Co., 392 U.S. 157, 20 L. Ed. 2d 1001 (1968)" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/241/0175-01", "/f2d/746/1492-01" ] }, { "cite": "206 F.3d 1", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3672874, 11452843 ], "year": 2000, "pin_cites": [ { "page": "4", "parenthetical": "quoting In re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Intracarrier Compensation for ISP-Bound Traffic, 14 F.C.C.R. 3689, 3695, \u00b6 10 (1999)" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/340/0328-01", "/f3d/206/0001-01" ] }, { "cite": "22 S.W.2d 81", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1929, "opinion_index": 0 }, { "cite": "100 S.E. 351", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1919, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "178 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271488 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/178/0146-01" ] }, { "cite": "254 U.S. 17", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1160450 ], "weight": 4, "year": 1920, "pin_cites": [ { "page": "18" }, { "page": "105" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/us/254/0017-01" ] }, { "cite": "59 Rad. Reg. 2d (P&F) 631", "category": "reporters:specialty", "reporter": "Rad. Reg. 2d (P & F)", "year": 1985, "opinion_index": 0 }, { "cite": "57 Rad. Reg. 2d (P&F) 1573", "category": "reporters:specialty", "reporter": "Rad. Reg. 2d (P & F)", "year": 1985, "pin_cites": [ { "page": "1582, \u00b6 25" } ], "opinion_index": 0 }, { "cite": "488 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "598, 601" } ], "opinion_index": 0 }, { "cite": "346 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139511 ], "year": 1997, "pin_cites": [ { "page": "569, 573" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0558-01" ] }, { "cite": "201 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564517, 8564552, 8564651, 8564624, 8564593 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0623-01", "/nc/284/0623-02", "/nc/284/0623-05", "/nc/284/0623-04", "/nc/284/0623-03" ] }, { "cite": "199 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "733" }, { "page": "733" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555123 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "601" }, { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0597-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(b)(5)" } ], "opinion_index": 0 }, { "cite": "494 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "624" }, { "page": "624" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653878 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "291" }, { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0288-01" ] }, { "cite": "554 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "866-67" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379074 ], "year": 2001, "pin_cites": [ { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0262-01" ] }, { "cite": "524 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155607 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0330-01" ] }, { "cite": "540 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155972, 1155750, 1155657, 1155611, 1155774 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0104-04", "/nc/351/0104-01", "/nc/351/0104-05", "/nc/351/0104-02", "/nc/351/0104-03" ] }, { "cite": "518 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144899 ], "year": 1999, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0391-01" ] }, { "cite": "500 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "111" }, { "page": "111", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651300 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "528" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0525-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "year": 1978, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "548 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135662, 135984, 135889, 135827, 135859 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0450-04", "/nc/353/0450-01", "/nc/353/0450-02", "/nc/353/0450-03", "/nc/353/0450-05" ] }, { "cite": "542 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "671" }, { "page": "671-72" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441214 ], "year": 2001, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-76", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1156, "char_count": 30681, "ocr_confidence": 0.755, "pagerank": { "raw": 2.2950749486954635e-07, "percentile": 0.7867155575479498 }, "sha256": "b6a0bed17f10c5a0a945bc4376e5a0ef1889e4b84ac1933d6f66d6c7fc2535ca", "simhash": "1:81b9cbf4b91b2c29", "word_count": 4833 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; BELLSOUTH TELECOMMUNICATIONS, INC., Complainant-Appellees v. THRIFTY CALL, INC., Respondent-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nBellSouth Telecommunications, Inc. (BellSouth) filed a complaint against Thrifty Call, Inc. (Thrifty Call) on 11 May 2000 alleging that Thrifty Call intentionally and unlawfully reported erroneous Percent Interstate Usage (PIU) factors to BellSouth in violation of BellSouth\u2019s North Carolina Access Services Tariff (intrastate tariff).\nThe evidence presented before the North Carolina Utilities Commission (the Commission) tended to show that Thrifty Call is a long-distance, interexchange carrier that has operated in North Carolina and has been a BellSouth customer since 1996. Thrifty Call purchased access to BellSouth\u2019s local exchange network under BellSouth\u2019s Tariff FCC No. 1 (FCC tariff) and BellSouth\u2019s intrastate tariff in order to carry long distance calls to and from customers of North Carolina BellSouth. BellSouth charged Thrifty Call either interstate or intrastate access charges, depending upon the originating and terminating points of the call. The billing rates for these charges were calculated using the PIU reporting method with the data provided by Thrifty Call. Interstate access rates, which are lower than intrastate rates, are established by the FCC tariff, while intrastate access rates are established by the Commission.\nThrifty Call routed all of the long distance calls in its network destined for North Carolina through its physical facilities in Atlanta, Georgia, including long distance calls that originated and terminated in North Carolina. Thrifty Call calculated its PIU based on the Federal Communications Commission\u2019s (FCC) entry/exit surrogate (EES) methodology and reported that ninety-eight percent of its calls in North Carolina were interstate. These calls were billed under the FCC interstate tariff rate.\nThe Commission referred the matter to a three-member panel to hear the case as provided under N.C. Gen. Stat. 62-76(a). The case was heard on 5 December 2000 by Commissioners Sam J. Ervin, IV, William R. Pittman, and J. Richard Conder. Commissioner Pittman resigned from the panel on 24 January 2001 and did not participate in the recommended order. The remaining panel issued a recommended order ruling on complaint (recommended order) dated 11 April 2001 ordering Thrifty Call to pay BellSouth $1,898,685 for Thrifty Call\u2019s underreported intrastate calls. Thrifty Call filed exceptions to the recommended order on 3 May 2001 and requested oral argument, which was scheduled for 21 May 2001. The Commission issued a final order dated 14 June 2001 denying Thrifty Call\u2019s exceptions and affirming the recommended order. Thrifty Call moved for reconsideration of the final order and moved to hold the proceeding in abeyance on 10 August 2001. The Commission denied both of these motions on 27 August 2001. Thrifty Call appeals.\nThrifty Call first argues the Commission\u2019s order contravenes N.C.G.S. \u00a7 62-76 because the recommended order was decided by a panel of two commissioners after one of the panel members resigned. N.C. Gen. Stat. \u00a7 62-76(a) (2001) states that a case may be heard by \u201ca panel of three commissioners, hearing commissioner or examiner to whom a hearing has been referred by order of the chairman.\u201d Pursuant to N.C.G.S. \u00a7 62-76(a), the matter was referred to a three-member panel which had \u201call the rights, duties, powers and jurisdiction conferred by [the statute] upon the Commission.\u201d The panel issued a recommended order to which Thrifty Call filed exceptions and requested oral argument before the full Commission.\nThrifty Call contends that Commissioner Ervin should not have participated in the oral argument and the Commission\u2019s decision because he acted as a hearing commissioner in the initial decision. N.C.G.S. \u00a7 62-76(c) states:\nIn all cases in which a pending proceeding shall be assigned to a hearing commissioner, such commissioner shall hear and determine the proceedings and submit his recommended order, but, in the event of a petition to the full Commission to review such recommended order, the hearing commissioner shall take no part in such review, either in hearing oral argument or in consideration of the Commission\u2019s decision, but his vote shall be counted in such decision to affirm his original order.\nIn interpreting statutory language, we must give effect to the intent of the General Assembly. Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 354, 542 S.E.2d 668, 671, disc. review denied, 353 N.C. 450, 548 S.E.2d 524 (2001). We primarily rely on the language of the statute itself and refrain from judicial construction in the absence of ambiguity in the express terms of the statute. Id. at 354, 542 S.E.2d at 671-72.\nIn the case before us, Commissioner Ervin was a member of a panel of three commissioners to which the case was assigned; he was not serving as an individual hearing commissioner. Furthermore, Commissioner Pittman\u2019s resignation from the panel did not recharac-terize the two remaining members as hearing commissioners or deprive the panel of jurisdiction to enter an order. The two remaining commissioners had the authority to issue recommended or final orders in accordance with the statute. The statute does not prohibit members of a Commission panel from participating in a decision appealed to the full Commission. The statute only limits a commissioner\u2019s involvement when he has issued a recommended order in the capacity of a hearing commissioner. Commissioners Conder and Ervin were acting as panel members and not individual hearing commissioners in this case. This assignment of error is without merit.\nThrifty Call next argues the Commission erred by failing to require BellSouth to conduct an audit that was required by BellSouth\u2019s intrastate tariff. Thrifty Call argues that the word \u201cmay\u201d in BellSouth\u2019s intrastate tariff requires, rather than permits, BellSouth to conduct an audit of Thrifty Call\u2019s records before filing a complaint. The relevant section of BellSouth\u2019s North Carolina tariff states:\nWhen an IC provides a projected interstate usage percent as set for in A. preceding, or when a billing dispute arises or a regulator commission questions the projected interstate percentage for BellSouth SWA, the Company may, by written request, require the IC to provide the data the IC used to determine the projected interstate percentage. This written request will be considered the initiation of the audit.\nBellSouth Access Services Tariff \u00a7 E2.3.14(B)(1) (April 26, 2000).\nThis Court finds no authority governing the interpretation or construction of tariffs and must choose a method for analyzing and interpreting the tariff. We believe utility tariffs are sufficiently similar to contracts to avail themselves to the rules of contractual interpretation.\nIf the language of a contract \u201cis clear and only one reasonable interpretation exists, the courts must enforce the contract as written\u201d and cannot, under the guise of interpretation, \u201crewrite the contract or impose [terms] on the parties not bargained for and found\u201d within the contract. Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978). If the contract is ambiguous, however, interpretation is a question of fact, Barrett Kays & Assoc., P.A. v. Colonial Bldg. Co., Inc. of Raleigh, 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998), and resort to extrinsic evidence is necessary, Holshouser v. Shaner Hotel Grp. Props. One, 134 N.C. App. 391, 397, 518 S.E.2d 17, 23, disc. review denied, 351 N.C. 104, 540 S.E.2d 362 (1999), aff'd per curiam, 351 N.C. 330, 524 S.E.2d 568 (2000). \u201cAn ambiguity exists in a contract if the \u2018language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u2019 \u201d Barrett, 129 N.C. App. at 528, 500 S.E.2d at 111 (citations omitted). Thus, if there is any uncertainty as to what the agreement is between the parties, a contract is ambiguous. Id. This Court\u2019s \u201creview of a trial court\u2019s determination of whether a contract is ambiguous is de novo.\u201d Id.\nCrider v. Jones Island Club, Inc., 147 N.C. App. 262, 266-67, 554 S.E.2d 863, 866-67 (2001).\nAbsent evidence of a contrary intent by the tariff drafters in the record or tariff, this Court will apply the plain meaning of the word. Black\u2019s Law Dictionary defines the word \u201cmay\u201d as (1) \u201cIs permitted to,\u201d (2) \u201cHas a possibility,\u201d and (3) \u201cLoosely, is required to; shall; must.\u201d Black\u2019s Law Dictionary 993 (7th ed. 1999). The definition states that the first entry is the primary legal use of the word while the third entry is used \u201cusually in an effort to effectuate legislative intent.\u201d Id. Similarly, The American Heritage Dictionary defines \u201cmay\u201d as \u201c[t]o be allowed or permitted to\u201d and \u201c[t]o be obliged; must. Used in deeds and other legal documents.\u201d The American Heritage Dictionary 839 (3rd ed. 1991).\nWhile this Court agrees that the word \u201cmay\u201d can be used to mean \u201cshall\u201d or \u201cmust,\u201d we do not agree that the word is so used in the case before us. We choose to apply the plain meaning of the word \u201cmay\u201d in light of the absence of evidence that a contrary definition was intended. There is no language in this tariff provision that requires BellSouth to audit Thrifty Call before filing a complaint to enforce its tariff. Furthermore, reading the word \u201cmay\u201d to mean \u201cshall\u201d would require an audit to be conducted any time there was a billing dispute rather than resolution through different means. Nothing in the record demonstrates it was the intent of the parties to require BellSouth to conduct an audit before seeking to enforce its rights under the tariff. Additionally, the tariff only allows for one audit to be conducted by BellSouth each year and limits the scope of the audit to the previous quarter. Reading the word \u201cmay\u201d to mean \u201cshall\u201d would allow BellSouth to enforce its rights only once a year, after conducting its one, limited audit. We find no evidence that the drafters of the tariff intended such a limitation on BellSouth\u2019s ability to enforce its rights. A plain reading of this section of the tariff compels a conclusion that the right to seek an audit is permissive and not required. This assignment of error is without merit.\nThrifty Call next contends the Commission erred in concluding that Thrifty Call misreported its PIU. Thrifty Call argues the Commission ignored the plain meaning of BellSouth\u2019s FCC tariff language concerning interstate usage, which resulted in an erroneous and arbitrary and capricious order.\nA reviewing court may reverse or modify the Commission decision if substantial rights of an appellant have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are: (1) violative of constitutional provisions; (2) beyond the statutory authority or jurisdiction of the Commission; (3) based upon unlawful proceedings; (4) affected by other errors of law; (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.\nState ex rel. Utilities Comm\u2019n v. N.C. Gas Service, 128 N.C. App. 288, 291, 494 S.E.2d 621, 624 (1998); see N.C. Gen. Stat. \u00a7 62-94 (2001). The standard of review requires this Court, after reviewing the entire record, to determine if \u201cthe Commission\u2019s findings and conclusions are supported by substantial, competent, and material evidence.\u201d N.C. Gas Service, 128 N.C. App. at 291, 494 S.E.2d at 624. Substantial evidence is defined as any relevant evidence that would permit a reasonable mind to support a conclusion. Utilities Comm. v. Coach Co., 19 N.C. App. 597, 601, 199 S.E.2d 731, 733 (1973), cert. denied, 284 N.C. 623, 201 S.E.2d 693 (1974). The presumption is that the Commission gave proper consideration to all competent evidence and reached a just and reasonable conclusion. State ex rel Utilities Comm. v. Piedmont Nat. Gas Co., 346 N.C. 558, 569, 573, 488 S.E.2d 591, 598, 601 (1997).\nThrifty Call argues that the FCC tariff requires that the classification of the call be determined by where the call enters the subcontractor\u2019s network under the EES methodology rather than the point from which the call originated. See In re Amendments of Part 69 of the Commission\u2019s Rules Relating to the Creation of Access Charge Subelements for Open Network Architecture, Report and Order & Order on Further Reconsideration & Supplemental Notice of Proposed Rule Making, 6 F.C.C.R. 4524, 4535-36, \u00b6 66 (1991). Thrifty Call argues that if its switch is located in a different state than where the call exits the network, it is classified as interstate. Under this methodology, virtually all of Thrifty Call\u2019s business would be classified as interstate. Id. It would also permit carriers to convert their intrastate minutes into interstate minutes whenever profitable simply by changing the routing of the call once it has been placed.\nThrifty Call cites several sources of authority in support of its argument. First, Thrifty Call cites to FCC decisions describing the EES methodology. The FCC has stated that\ninterstate usage generally ought to be estimated as though every call that enters an OCC network at a point within the same state as that in which the station designated by dialing is situated were an intrastate communication and every call for which the point of entry is in a state other than that where the called station is situated were an interstate communication.\nIn re MCI Telecommunications Corp. Determination of Interstate and Intrastate Usage of Feature Group A and Feature Group B Access Service, Memorandum Opinion and Order, FCC 85-145, 57 Rad. Reg. 2d (P&F) 1573, 1582, \u00b6 25 (1985), recon. denied, 59 Rad. Reg. 2d (P&F) 631 (1985); In re Determination of Interstate and Intrastate Usage of Feature Group A and Feature Group B Access Service, Supplemental Notice of Proposed Rule Making, 1 F.C.C.R. 1042, 1045, \u00b6 5 n.6 (1986).\nThrifty Call also cites Western Union Tel. Co. v. Speight, 254 U.S. 17, 18, 65 L. Ed. 104, 105 (1920), reversing, 178 N.C. 146, 100 S.E. 351 (1919), and argues it is controlling in the case before us. In Speight, the United States Supreme Court held that a telegraph that originated in Greenville, North Carolina and terminated in Rosemary, North Carolina, was considered interstate because it was routed through Richmond, Norfolk, and Roanoke Rapids, Virginia. Id. The Court stated that \u201c[t]he transmission of a message through two States is interstate commerce as a matter of fact. The fact must be tested by the actual transaction.\u201d Id. (citations omitted).\nWhile Speight appears similar to the facts at hand, the facts are distinguishable and this Court does not find it controlling. Speight was decided in 1919 and has been cited only once in subsequent cases. See Ward v. Western Union Telegraph Co., 22 S.W.2d 81 (Mo. Ct. App. 1929). In Speight, the message was telegraphed to Richmond, Virginia and then subsequently telegraphed to Weldon, North Carolina as it made its way to Rosemary. Id. at 19, 65 L. Ed. at 105. The telegraph did not simply travel along telegraph lines across the Virginia line and back after its initial transmission; the telegraph had to be independently transmitted by operators from each relay point. Id. The actual telegram was a series of communications.\nIn the case before this Court, there was only one telephone call made during the transmission of the call. The call switched networks and was routed through Atlanta before the transmission terminated in North Carolina, but the transmission consisted of only one call. The transmission was not divided into a series of individual transmissions as the telegraph in Speight was. Since the transmission originated and terminated in North Carolina and consisted of only one actual call, this case is distinguishable from Speight.\nAdditionally, federal courts and the FCC have declined to characterize calls of this nature as a series of multiple calls. The FCC \u201chas focused on the \u2018end points of the communication and consistently has rejected attempts to divide communications at any intermediate points of switching or exchanges between carriers.\u2019 \u201d Bell Atlantic Telephone Companies v. FCC, 206 F.3d 1, 4 (D.C. Cir. 2000) (quoting In re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Intracarrier Compensation for ISP-Bound Traffic, 14 F.C.C.R. 3689, 3695, \u00b6 10 (1999)).\nThe dividing line between the regulatory jurisdictions of the FCC and states depends on \u201cthe nature of the communications which pass through the facilities [and not on] the physical location of the lines.\u201d Every court that has considered the matter has emphasized that the nature of the communications is determinative rather than the physical location of the facilities used.\nNational Association of Regulatory Utility Commissioners, 746 F.2d 1492 (D.C. Cir. 1984) (quoting California v. FCC, 567 F.2d 84, 86 (D.C. Cir. 1977) (per curiam), cert. denied, 434 U.S. 1010 (1978); citing United States v. Southwestern Cable Co., 392 U.S. 157, 20 L. Ed. 2d 1001 (1968)).\nFCC opinions have also discussed the fact that \u201ccourt and Commission decisions have considered the end-to-end nature of the communications more significant than the facilities used to complete such communications.\u201d Teleconnect Company v. The Bell Telephone Company of Pennsylvania, File Nos. E-88-83 et seq, Memorandum Opinion and Order, 10 F.C.C.R. 1626, 1629, \u00b6 12 (1995). The FCC has found that \u201ca debit card call that originates and ends in the same state is an intrastate call, even if it is processed through an 800 switch located in another state.\u201d In the Matter of The Time Machine, Inc., Request for a Declaratory Ruling Concerning Preemption of State Regulation of Interstate 800-Access Debit Card Telecommunications Services, Memorandum Opinion and Order, 11 F.C.C.R. 1186, 1190, \u00b6 30 (1995).\nSimilarly, other states have examined the characterization of long distance calls that originate and terminate in the same state after being routed through other states. The Idaho Public Utilities Commission found these calls to be intrastate, stating that\nthe simple rule adopted by the Federal Communications Commission and by this Commission is that when a call has an end user origination and termination in the same state it is jurisdictionally an intrastate call for regulatory purposes. The intermediate transport or switching does not alter the jurisdictional nature of the call even if it occurs outside the state\u2019s boundaries.\nNorthwest Telco, Inc. v. Mountain States Telephone and Telegraph Co., 88 Pub. Util. Rep. 4th 462, 464 (Idaho Pub. Util. Comm\u2019n 1987). The Florida Public Utilities Commission has stated that \u201clong distance telephone calls which originate and terminate within the State of Florida are intrastate calls subject to [the Florida Public Utilities Commission\u2019s] jurisdiction even though they may be routed through a switch located in another state.\u201d In re: Show Cause Action Against Southland Systems, Inc., Order No. 11342, 82 FPSC 179 (1982); see also In re Cease and Desist Order to Hart Industries of Intrastate Wide Area Toll Service, Order No. 10256, 81 FPSC 73 (1981).\nThrifty Call has cited no controlling authority that compels us to reverse the decision of the Commission. Evidence in the record demonstrates that over ninety percent of the calls originate and terminate in North Carolina. It also shows that Thrifty Call is acting as a subcontractor for another long distance carrier for the minutes in question. Furthermore, Thrifty Call admitted that it uses the originating and terminating points of telephone calls in Georgia to determine whether the call was interstate or intrastate. Testimony presented before the Commission provided a sufficient basis for determining that a called station refers to the end-user being called, not a switch within the network. The Commission concluded that telephone traffic originating in North Carolina, routed through a switch in Atlanta, Georgia, and delivered to an end-user in North Carolina was intrastate in nature.\nThe Commission reviewed the FCC and intrastate tariffs and determined they were substantially similar. It found that both tariffs classified calls based on the point where they originated and were placed in the customer network by callers. Testimony indicated that Thrifty Call ordered feature group access that did not utilize the EES methodology. After an examination of the record, this Court concludes there is substantial evidence to support the conclusions of the Commission. We hold that the Commission correctly characterized these calls as intrastate in nature and did not abuse its discretion or err as a matter of law. This assignment of error is without merit.\nThrifty Call argues the Commission erred by concluding that Thrifty Call is obligated to pay BellSouth for back-billed charges. Thrifty Call first contends there is no competent evidence that BellSouth is owed the amount alleged in the complaint. As previously stated, the standard of review requires this Court, after reviewing the entire record, to determine if \u201cthe Commission\u2019s findings and conclusions are supported by substantial, competent, and material evidence.\u201d N.C. Gas Service, 128 N.C. App. at 291, 494 S.E.2d at 624. Substantial evidence is defined as any relevant evidence that would permit a reasonable mind to support a conclusion. Coach Co., 19 N.C. App. at 601, 199 S.E.2d at 733. The complainant bears the burden of proving the facts that entitle it to relief. Utilities Commission v. Teer Co., 266 N.C. 366, 372-73 146 S.E.2d 511, 516 (1966).\nMike Harper (Harper) of BellSouth testified before the Commission detailing the calculations used in determining the alleged damages. Harper testified that these records demonstrated that ninety-nine percent of Thrifty Call\u2019s traffic terminating in North Carolina was intrastate. Harper also testified that Thrifty Call\u2019s records showed the difference between the application of the interstate rate and the intrastate rate totaled $1,898,685 between January 1998 and April 2000. The Commission subsequently found this determination to be \u201cwell-supported\u201d by the testimony before entering the order.\n[T]he Commission may agree with a single witness \u2014 if the evidence supports his position-no matter how many opposing witnesses might come forward. This Court is then required to determine whether the Commission\u2019s decision is supported by \u201ccompetent, material and substantial evidence in view of the entire record as submitted.\u201d\nState ex rel. Utilities Comm. v. Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987) (quoting N.C. Gen. Stat. \u00a7 62-94(b)(5) (1982)). This Court finds substantial evidence in the record supporting the amount of damages alleged by BellSouth.\nThrifty Call contends BellSouth\u2019s claim for back-billing should have been barred under the doctrine of laches.\nLaches is an affirmative defense that must be pled, and the burden of proof is upon the party who pleads it. The defense of laches will bar a claim when the plaintiff\u2019s delay in seeking a known remedy or right has resulted in a change of condition which would make it unjust to allow the plaintiff to prosecute the claim.\nCieszko v. Clark, 92 N.C. App. 290, 297, 374 S.E.2d 456, 460 (1988) (citations omitted). The record fails to demonstrate that Thrifty Call pled the defense of laches in its answer to BellSouth\u2019s complaint. Additionally, Thrifty Call has failed to demonstrate a change in conditions that makes the prosecution of BellSouth\u2019s claim unjust.\nThrifty Call also argues the Commission erred because the back-billed time period exceeds that permitted under BellSouth\u2019s tariff. Thrifty Call contends that the tariff allows BellSouth to conduct an audit once a year and limits any back-billing to one quarter preceding the audit. We have already stated that BellSouth is not required to seek an audit before seeking to enforce its rights before the Commission. The back-billing provision applies solely to when an audit has been undertaken by BellSouth, which is not the case before us. Additionally, we do not believe the language of the tariff prohibits the Commission from ordering back-billing because to do so would deny BellSouth nearly complete relief from the misreporting of access traffic.\nFinally, Thrifty Call argues the Commission exceeded its statutory and jurisdictional authority in ordering money damages. The Commission may \u201cexercise such general power and authority to supervise and control the public utilities of the State as may be necessary to carry out the laws providing for their regulation, and all such other powers and duties as may be necessary or incident to the proper discharge of its duties.\u201d N.C. Gen. Stat. \u00a7 62-30 (2001). Additionally, \u201cthe Commission shall be deemed to exercise functions judicial in nature and shall have all the powers and jurisdiction of a court of general jurisdiction as to all subjects over which the Commission has or may hereafter be given jurisdiction by law.\u201d N.C. Gen. Stat. \u00a7 62-60 (2001).\nIn State ex rel. Utilities Comm. v. Southern Bell, 88 N.C. App. 153, 363 S.E.2d 73 (1987), this Court held that a Commission-ordered compensation plan did not constitute money damages or a penalty in contravention of N.C.G.S. \u00a7 62-94(b)(2). In Southern Bell, we stated that a \u201cplan requiring compensation to the LECs for lost revenues . . . is reasonably calculated to provide protection for the local exchanges who provide needed services to local exchange customers .... The plan is therefore statutorily authorized.\u201d Southern Bell, 88 N.C. App. at 169-70, 363 S.E.2d at 83.\nIn the case before us, the Commission\u2019s order requiring Thrifty Call to pay the amount owed does not constitute the award of money damages in excess of its statutory authority. The Commission\u2019s order is simply the remedy afforded BellSouth to collect the unpaid access fees required under its North Carolina tariff. Denying the Commission the authority to order back-billing in this case would prevent it from enforcing the BellSouth tariff and protecting customers. This assignment of error is without merit.\nWe affirm the order of the North Carolina Utilities Commission.\nAffirmed.\nJudges WALKER and HUNTER concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Kilpatrick Stockton LLP, by M. Gray Styers, Jr., for complainant-appellee.", "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Marcus W. Trathen and David Kushner, for respondent-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; BELLSOUTH TELECOMMUNICATIONS, INC., Complainant-Appellees v. THRIFTY CALL, INC., Respondent-Appellant\nNo. COA01-1466\n(Filed 19 November 2002)\n1. Utilities\u2014 number of panel members \u2014 resignation of panel member\nThe North Carolina Utilities Commission\u2019s order did not contravene N.C.G.S. \u00a7 62-76 even though the recommended order was decided by a panel of two commissioners after one of the panel members resigned, because: (1) one commissioner\u2019s resignation from the panel did not recharacterize the two remaining members as hearing commissioners or deprive the panel of jurisdiction to enter an order; (2) the statute does not prohibit members of a Commission panel from participating in a decision appealed to the full Commission; and (3) the statute only limits a commissioner\u2019s involvement when he has issued a recommended order in the capacity of a hearing commissioner, and the two remaining commissioners were acting as panel members and not as individual hearing commissioners.\n2. Telecommunications \u2014 audit\u2014intrastate tariff\nThe North Carolina Utilities Commission did not err by failing to require plaintiff telecommunications company to conduct an audit that was allegedly required by the company\u2019s intrastate tariff, because: (1) there is no language in the tariff provision that requires the company to audit defendant long distance interex-change carrier before filing a complaint to enforce its tariff; (2) reading the word \u201cmay\u201d to mean \u201cshall\u201d would require an audit to be conducted any time there was a billing dispute rather than resolution through different means; (3) nothing in the record demonstrated it was the intent of the parties to require plaintiff to conduct an audit before seeking to enforce its rights under the tariff; and (4) the tariff only allows for one audit to be conducted by plaintiff each year and limits the scope of the audit to the previous quarter.\n3. Telecommunications\u2014 long distance interexchange carrier \u2014 percent interstate usage \u2014 intrastate usage\nThe North Carolina Utilities Commission did not abuse its discretion by concluding that defendant long distance interex-change carrier misreported its Percent Interstate Usage (PIU) and by characterizing the pertinent calls as intrastate in nature, because: (1) FCC opinions have discussed the fact that court and Commission decisions have considered the end-to-end nature of the communications more significant than the facilities used to complete such communications; (2) other states have held that long distance calls which originate and terminate within the state are intrastate calls even though they may be routed through a switch located in another state; and (3) evidence in the record demonstrated that over ninety percent of the calls originated and terminated in North Carolina.\n4. Telecommunications \u2014 back-billed charges \u2014 laches\nThe North Carolina Utilities Commission did not err by concluding that defendant long distance interexchange carrier company is obligated to pay plaintiff telecommunications company for back-billed charges even though defendant contends the claim should have been barred under the doctrine of laches, because: (1) the record fails to demonstrate that defendant pled the defense of laches in its answer to plaintiffs complaint; (2) defendant has failed to demonstrate a change in conditions that makes the prosecution of plaintiffs claim unjust; and (3) the language of plaintiffs tariff does not prohibit the Commission from ordering back-billing since to do so would deny plaintiff nearly complete relief from the misreporting of access traffic.\n5. Utilities\u2014 telecommunications \u2014 monetary damages\nThe North Carolina Utilities Commission did not err by allegedly exceeding its statutory and jurisdictional authority in ordering money damages, because: (1) the Commission\u2019s order is simply the remedy afforded plaintiff telecommunications company to collect the unpaid access fees required under its North Carolina tariff; and (2) denying the Commission the authority to order back-billing in this case would prevent it from enforcing the tariff and protecting customers.\nAppeal by respondent from order dated 14 June 2001 by the North Carolina Utilities Commission. Heard in the Court of Appeals 18 September 2002.\nKilpatrick Stockton LLP, by M. Gray Styers, Jr., for complainant-appellee.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Marcus W. Trathen and David Kushner, for respondent-appellant." }, "file_name": "0058-01", "first_page_order": 86, "last_page_order": 99 }