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Courtesy Kevin Mcaleavey, SYSOP, The Big Experiment, Albany, N.Y. DOCKET NO. 8387 REGINALD A. HIRSCH, ET AL ) BEFORE THE PUBLIC ) VS. ) UTILITY COMMISSION ) SOUTHWESTERN BELL TELEPHONE CO. ) OF T E X A S PETITIONER'S ORIGINAL COMPLAINT TO THE HONORABLE COMMISSIONERS OF THE PUBLIC UTILITIES COMMISSION OF TEXAS: COMES NOW, REGINALD A. HIRSCH, individually and on behalf of the other similar situated individuals and files this formal complaint with the Public Utilities Commission of Texas, herein- after referred to as "PUC." I. PARTIES AND NOTICE Petitioner, REGINALD A. HIRSCH, is an individual who operates a bulletin board, hereinafter referred to as a "BBS" named "YE OLDE BAILEY" operating at (713) 520-1569. Respondent herein is SOUTHWESTERN BELL TELEPHONE CO., here- inafter referred to as "SWB", a corporation duly authorized to do business in the State of Texas and incorporated to do business in the State of Texas. Notice of this complaint is being forwarded by certified mail, return receipt requested to Mr. Jon Dee Lawrence, Vice President and Assistant General Counsel for SWB, 1616 Guadalupe, Suite 600, Austin, Texas 78701. Notice of the letter filing this formal complaint is being sent to Mr. Phillip Holder, Secretary to the PUC and Chief Hearing Officer, Public Utility Commission of Texas, 7800 Shoal Creek Blvd., Suite 400 N., Austin, Texas 78757 and a copy to Ms. Carol Kingsberry Ottmers, Office of Public Utility Council, 6140 Mopack, West Park III, Suite 120, Austin, Texas 78759. II. DEFINITIONS The term Petitioner herein is used to define the Petitioner, REGINALD A. HIRSCH, individually, and in his representative capacity of other individuals like situated. Respondent herein refers to SOUTHWESTERN BELL TELEPHONE CO., sometimes referred to as SWB. "BBS" as used herein refers to bulletin board system(s). "SYSOP" herein means system operator or the operator of a bulletin board system. "PUC" means the Public Utilities Commission of Texas. "PURA" refers to the Public Utilities Regulation Act. "DTPA" refers to the Deceptive Trade Practice Act found in the Business and Commerce Bode, Section 17.41, et. seq. Said "Rules" refer to the Substantive Rules of the Public Utility Commission of Texas effective September 1, 1988, hereinafter sometimes referred to as "SR." The Rules of Practice and Procedure August, 1984 edition sometimes referred to as the Rules of Practice and Procedure before the Public Utility Commission of Texas. Tariff is used hereinafter to refer to the Tariff, Section 23, Issued November 20, 1984, effective March 15, 1985, a copy of which is attached hereto as Exhibit "B" and incorporated herein for all purposes. PART III. JURISDICTION The PUC has jurisdiction of this matter pursuant to VERNON'S ART. 1446C, Article III, hereinafter referred to as the Public Utility Regulatory Act (PURA) and in particular this Honorable Commissioner's attention is directed to Section 43A which states as follows: A. A local exchange company may make changes in its tariffed rules, regulations, or practices that do not affect its charges or rates by filing the proposed changes with the commission at least 35 days prior to the effective date of the changes. The Commission may require such notice to ratepayers as it considers appropriate. The commis- sion may on complaint by any affected person or on its own motion hold a hearing, after reasonable notice, to determine the propriety of the change. Pending the hearing and decision, the commission may suspend the operation of proposed changes for a period not to exceed 120 days after the date on which the changes would other- wise go into effect. The commission shall approve, deny, or modify the proposed changes before expiration of the suspension period. In any proceeding under this section, the burden of proving that the requested relief is in the public interest and complies with this Act shall be borne by the local exchange company. Petitioner would show this Honorable Commission that SWB has made a change in the PUC's tariff, rules, regulations and practices and has not at least 35 days prior to the effective date of the changes files said proposed changes with the PUC. Further Peti- tioner would show that such notice has not been provided to ratepayers including the Petitioner herein. Petitioner seeks that hearing be held and notice be forwarded to all affected rateusers of a similar class as that of Petitioner and upon notice and hearing hereon, that the PUC suspend the operation of the proposed changes for a period of 120 days. Petitioner seeks that PUC deny the proposed change as sought by SWB. Further Petitioner would show that said change in Tariff is not in the public interest. In addition, Subsection 43(a) provides: B. No utility may make changes in its rates except by filing a statement of intent with the regulatory authority having original jurisdiction at least 35 days prior to the effective date of the proposed change. The statement of intent shall include proposed revisions of tariffs and schedules and a statement specifying in detail each proposed change, the effect the proposed change is expected to have on the revenues of the company, the classes and numbers of utility consumers affected, and such other information as may be required by the regula- tory authority's rules and regulations. A copy of the statement of intent shall be mailed or delivered to the appropriate officer of each affected municipality, and notice shall be given by publication in conspicuous form and place of a notice to the public of such proposed change once in each week for four and successive weeks prior to the effective date of the proposed change in a newspaper having general circulation in each county containing territory affected by the proposed change, and by mail to such other affected persons as may be required by the regulatory authority's rules and regulations. Petitioner would show that SWB has not filed a Statement of Intent at least 35 days prior to the effective date of any proposed revision of Tariff, and schedules and a statement specifying in detail SWB's proposed changes, the affect the proposed changes is expected to have on the revenues of company to classes of utility consumers affected and such other information as may be required by the regulatory authority rules and regulations as provided to the PUC and that no publication of said proposed change has appeared in any newspaper of general circulation in the County of Harris, State of Texas and appropriate notice by mail has not been provided by SWB. C. In addition thereto, pursuant to Article XIII, "Miscellaneous Provisions," Section 83.(a) "Any effective person may complain to the regulatory authority in writing setting forth any act or thing done or admitted to be done by any public utility in violation or claimed violation of any law which the regulatory authority has jurisdiction to administer, or of any order, ordinance, rule or regulation of the regulatory authority. If a written complaint is filed with the commission relating to a utility, the commission, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties of the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation." Petitioner would show herein that he has complied with said Section by virtue of filing this Complaint and forwarding a copy to SWB. D. Section 84 states as follows: A record shall be kept of all proceedings had before the regulatory authority, and all the parties shall be entitled to be heard in person or by attorney. Petitioner requests a record to be made. Petitioner will show that SWB has engaged in a violation of this Act failing to comply with aforementioned provision and Petitioner seeks the PUC to bring action in a court of competent jurisdiction in the State of Texas on behalf of the PUC against SWB, its officers, agents, and employees to enjoin the continuation of said acts as more fully set forth herein. Petitioner has requested the aforementioned relief on behalf of the himself and other like situated individuals and has declared said bill to be disputed and provided copies of notice of this complaint to SWB. E. Further Petitioner seeks relief pursuant to Article XI. "Violations and Enforcement." Section 71 of Article XI provides: Whenever it appears to the commission that any public utility or any other person or corporation is engaged in, or is about to engage in, any act in violation of this Act or of any order, rule, or regulation of the commis- sion entered or adopted under the provisions of this Act, or that any public utility or any other person or corporation is failing to comply with the provisions of this Act or with any such rules, regulation, or order, the attorney general on request of the commission, in addition to any other remedies provided herein, shall bring an action in a court of competent jurisdiction in the name of and on behalf of the commission against such public utility or other person or corporation to enjoin the commencement or continuation of any such act, or to require compliance with such Act, rule, regulation, or order. Petitioner seeks said relief. Petitioner would show that pursuant to Section 23.24 of the Substantive Rules, SWB has filed to comply with the aforementioned statutes, regulations and rules of the PUC. In effect SWB has ex post facto created a new tariff and without approval said Internal Memo and/or Tariff and applied a business rate to a class without notice. F. In addition thereto, Plaintiff seek relief pursuant to Substantive Rule Section 23.45(i), "Disputed Bills" which states: (2) Notwithstanding any other section of these rules, the customer, except customers of telephone utilities, shall not be required to pay the disputed portion of the bill which exceed the amount of that customer's average monthly usage at current rates pending the completion of the determination of the dis- pute, but in no event more than 60 days. G. Pursuant to Section 21.21 of the Rule of Practice and Pro- cedure of the Public Utility Commission of Texas request is herein made to the Director of Hearings to docket it as a pending proceed- ing and number it in accordance with the established docket number, and assign an examiner and see that notice is serviced. Pursuant to the Rules of Practice and Procedure of the Public Utility Commission of Texas, three copies of said complaint are herein filed. H. Pursuant to Section 21.43 "Alignment of Participants," Petitioner herein seeks that the presiding examiner consolidate participants of a similar class and designate a person or indivi- dual to represent them in said proceedings. I. Pursuant to Section 21.67 of the Rules of Practice and Procedure of the PUC it is reasonably anticipated that the Peti- tioner(s) will seek to amend their original complaint based upon discovery afforded Petitioner(s). The allegations contained herein are general in nature, but are sufficient to apprise Respondent of the alleged complaint and conduct engaged by SWB. PART IV. STATEMENT OF FACTS On or about October 9, 1988, REGINALD A. HIRSCH, received a telephone call and a letter informing him that SWB intended, pursuant to an "Internal Memo" to construe Tariff, Section 23, issued November 20, 1984, Effective March 15, 1985, to apply to him and informed him that he would be charged a business rate versus a residential rate from that point forward. REGINALD A. HIRSCH requested a copy of said "Internal Memo" and was informed that said Memo was not available for dissemination to the public. REGINALD A. HIRSCH indicated in his voice com- munication with the representative from SWB that he intended to file a formal complaint with the PUC regarding same. It was explained to REGINALD A. HIRSCH that the rate increase would be to take his residential rate and effectively double it from approximately SIXTEEN AND 00/100 ($16.00) DOLLARS to EIGHTEEN AND 00/100 ($18.00) DOLLARS to THIRTY TWO AND 00/100 ($32.00) DOLLARS to THIRTY THREE AND 00/100 ($33.00) DOLLARS per month. On or about October 10, 1988, Petitioner received a new SWB bill reflecting the increased business rate. A copy of said SWB bill is attached hereto as Exhibit "A" and incorporated herein for all purposes. "YE OLDE BAILEY" is a public bulletin board that has been operational since approximately October, 1987 and has been operated in the home of REGINALD A. HIRSCH continuously. Said bulletin board does not charge a fee for access nor has it ever requested or received payment for services, equipment or anything of a like nature. Said bulletin board has continuously operated at a loss and never made a profit. The Petitioner in this matter has provided this service free without compensation directly or indirectly. In addition thereto, REGINALD A. HIRSCH and/or "YE OLDE BAILEY" has not bought or sought any advertisement. Said BBS is operated completely as a hobby. PART V. RESPONSE TO SWB'S INTERPRETATION In reliance upon the alleged Internal Memo, it is Petitioner's understanding that SWB has taken the position that the Petitioner is providing a "business service." Petitioner would show that the operation of said bulletin board system is not a business but in fact a hobby and in fact he has not advertised either by business cards, newspapers, handbills, billboards, circulars, motion picture screens or other advertisements, such as on vehicles, etc. Notwithstanding the foregoing, Section 3.2 entitled "Residence Rates Apply at the Following Locations:" indicate "[i]n private residences where business listings are not provided." In fact SWB seeks to impose a business rate when in fact SWB provides no listing and none can be found in the business listing of either the white or yellow pages of Southwestern Bell in the Houston metroplex area for said BBS. Further, this Honorable Commission's attention is respectfully directed to the Substantive Rules effective September 1, 1988 and particularly Section 23.61 entitled "Tele- phone Utilities" and which states as follows: (a) Definitions. (2) Business service - A telecommunications service provided a customer where the use is primarily a business, professional, insti- tutional or otherwise occupational nature. It is clear from the definition contained in the Commission's own rules and regulations and in particular the Substantive Rules that in order for SWB to define said services as a business services that a "business" is one that is primarily for a service which is for a profit. As previously stated, Petitioner has provided said bulletin board at a net operating loss from the first day of its existence in approximately November, 1987. In addition thereto this Honorable Commission's attention is respectfully directed to the fact that said Tariff and regulation has been in effect since March 15, 1984 and said interpretation by SWB is presently making has not arisen until approximately 3 1/2 years later. Petitioner has reason to believe that at the time of the proposed General Exchange Tariff of November 20, 1984, SWB did not ever consider the issue of bulletin boards systems and include it as part of it's overall Tariff. Petitioner would further show that Section 3.1 specifically identifies certain locations which constitute a business but nowhere does the particular Tariff mention the operation of bulletin board systems. In addition Section 3.2 entitled "Residence Rates Apply at the Following Locations:" states "[i]n private residences where business listings are not provided" as previously indicated Plaintiff would show that he has not been afforded nor does he have a business listing. In fact conclusively establishing Petitioner's telephone number at the present time contains no listing conclusively establishing the privacy of said BBS being operated by Petitioner. Petitioner would that the action by SWB is an attempt to circumvent their require- ments for publication pursuant to Section 43 of Article 14.46(c) and immediately requests that said rate increase be suspended for 120 days as provided under Article 14.46(c), Section 43(d). Petitioner would further the Honorable Commission that the enact- ment of this Tariff interpretation by SWB is ex post facto having occurred some 3 1/2 years since the adoption of this Tariff and in effect represents a new Tariff and not a mere interpretation of a Tariff. In addition, and without waiving the foregoing, Petitioner would should this Honorable Commission that SWB has engaged in an anticompetitive action by invocation of its business rate to the Petitioner and other like situated individuals. This application of business rates to Petitioner's knowledge and belief has only incurred in Houston, Texas and it's metroplex area but has not been applied to any other telephone ratepayers throughout the State of Texas. In addition thereto, Petitioner believes that no other Bell Regional Company (Baby Bell) has so interpreted its business rates in a like manner to apply to bulletin board systems. Further, and again without waiving the foregoing, with the regard to the issue of discrimination, SWB has not even determined the class of ratepayers operating said bulletin board systems but nevertheless has sought to enforce this business rate. In addition the Commis- sion's attention is respectfully directed to Section 47 of PURA which provides that "[n]o public utility may discriminate against any person or corporation ... nor may any public utility engage in any other practice that tends to restrict or impair such competi- tion." With regard to this allegation, Petitioner would show that SWB has purchased a portion of U.S. VIDEOTEL and will offer said services known as VIDEOTEX for a fee in the City of Houston. Petitioner would show that said service provided by SWB will be in direct competition with the bulletin board services offered by Petitioner and other individuals situated in a like manner. The effect of SWB's decision to increase from residential to business rates has resulted in the immediate loss of bulletin board services in the City of Houston and because no bulletin board operator in the State of Texas has the resources available to compete with SWB economically, with regard to it's proposed Videotex Gateway service, the increase from residential to business rate will have a "chilling effect" upon Petitioner and individuals in a similar situation. Petitioner would further show that said rate increase and change in Tariff by SWB is in violation of the 14th Amendment of the United States Constitution as it does not afford due process and notice and Petitioner or individuals like situated as Peti- tioner has not had an opportunity to comment on said rate increase nor has the economic impact upon the citizens of Texas been determined. Petitioner seeks attorney's fees and costs, Petitioner respectfully requests to recover any and all attorney's fees and costs in regard to representation in this matter including attor- ney's fees on appeal to the Commission itself from the prehearing and attorney's fees should appeal be necessary to the Texas Supreme Court. Further, notice is given by Petitioner to Respondent herein that Petitioner seeks to invoke the relief provided by Section 15.01 of the Business and Commerce Code entitled "Texas Free Enterprise and Antitrust Act" of 1983. Petitioner further hereby gives notice to SWB that Petitioner believes that said activity by SWB by changing Petitioner's phone rates from a residential to business rate constitutes a deceptive trade practice including but not limited to the following acts: 1. Passing off goods and services of those of another; 2. Causing confusion or misunderstanding as the sole sponsorship, approval or certification of goods or services; 3. Advertising goods or services with the intent not to sell them as advertised; 4. Failure to disclose information concerning goods or services which was known at the time of the transaction as such failure; or to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information; 5. Bait and switch. It is the contention of Petitioner that SWB offered resid- ential rates to Petitioner and other individuals like situated but it did not intend to provide those services as same by virtue of its effect in unilaterally changing said residential rate to a business rate. Petitioner is as defined by the Deceptive Trade Practice Act "a person and consumer" and in addition thereto, Petitioner would show this Honorable Commission that said actions by SWB are unconscionable acts as defined by DTPA and notice is hereby given. Petitioner and other individuals similarly situated have sustained damages which are undetermined at this time. Nevertheless, Petitioner will seek in the appropriate jurisdiction attorney's fees, damages, costs, an injunction prohibiting SWB from said acts and for such other relief including that which a Court may deem proper including but not limited to the appointment of a Receiver or the revocation of a license or certificate authorizing SWB to engage in business in this State in the event that a judgment is awarded and has not been satisfied within three (3) months of the date of a final judgment. WHEREFORE, PREMISES CONSIDERED, Petitioner prays for the relief as contained in the aforementioned complaint including but not limited to a cease and desist Order suspending said business rates, injunctive, special relief, attorney's fees and costs including attorney's fees on appeal, damages, both special and exemplary, and for such other and further relief as may be shown hereon. Respectfully submitted, LIPSTET, SINGER & HIRSCH ____________________________ REGINALD A. HIRSCH 1980 Post Oak Boulevard Suite 1780 Houston, Texas 77056 (713) 961-7800 Bar Card No. 09718500 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petitioner's Original Complaint has been mailed by certified mail, return receipt requested to Mr. Jon Dee Lawrence, Vice President and Assistant General Counsel for Southwestern Bell Telephone Company, 1616 Guadalupe, Suite 600, Austin, Texas 78701, and Ms. Carol Kingsberry Ottmers, Office of Public Utility Council, 6140 Mopack, West Park III, Suite 120, Austin, Texas 78759 and the original and three (3) copies are being forwarded by certified mail, return receipt requested to Mr. Phillip Holder, Public Utility Commission of Texas, 7800 Shoal Creek Blvd., Suite 400 N., Austin, Texas 78757 on this the _______ day of October, 1988. _____________________________________ REGINALD A. HIRSCH *TBENET1*RELAY*070889* File provided by COUSARD through TBE BBS of Selkirk, NY 518-767-3316 DOCKET NO. 8387 REGINALD A. HIRSCH, ET AL ) BEFORE THE PUBLIC ) VS. ) UTILITY COMMISSION ) SOUTHWESTERN BELL TELEPHONE CO. ) OF T E X A S OBJECTIONS AND MOTION TO QUASH OF PETITIONER, REGINALD A. HIRSCH AND INTERVENORS, TOLAR, CONROY AND HUTMACHER TO SOUTHWESTERN BELL TELEPHONE COMPANY'S FIRST REQUEST FOR INFORMATION TO REGINALD A. HIRSCH, SOUTHWESTERN BELL TELEPHONE COMPANY'S FIRST REQUEST FOR INFORMATION TO GLYNNE TOLAR, SOUTHWESTERN BELL TELEPHONE COMPANY'S FIRST REQUEST FOR INFORMATION TO STEVE CONROY, AND SOUTHWESTERN BELL TELEPHONE COMPANY'S FIRST REQUEST FOR INFORMATION TO THOMAS PAUL HUTMACHER TO THE HONORABLE COMMISSIONERS OF THE PUBLIC UTILITIES COMMISSION OF TEXAS: COMES NOW, Petitioner, REGINALD A. HIRSCH, Individually and on behalf of the Intervenors, TOLAR, CONROY AND HUTMACHER, in the above styled and docketed cause and respectfully file this their Objections and Motion to Quash to Southwestern Bell Telephone Company's First Request for Information to REGINALD A. HIRSCH, GLYNNE TOLAR, STEVE A. CONROY AND THOMAS PAUL HUTMACHER, Intervenors, hereinafter referred to as "Plaintiff's group" and would show this Honorable Commission that the issues raised by Southwestern Bell Telephone Company in their First RFI are so substantial as to raise issues of not only rights or privacy but consti-tutional issues and Plaintiff's group will not have an opportunity to completely formulate all theories of law relevant to responding to said requests and for good cause show requests additional time to file additional objections and authority to the Public Utility Commission with regard to SWB's First Request for Information and further request oral argument to be set regarding these Objections and Motion to Quash but notwithstanding the foregoing, Plaintiff's group would show this Honorable Commission as follows: I. A. REQUESTS: Southwestern Bell's First Set of Requests for Information, Request No. 9 requests: "If your BBS has public message boards, provide a description of each board and its purpose and describe the types of messages which are posted there." B. OBJECTIONS: Petitioner, REGINALD A. HIRSCH, and Plaintiffs, TOLAR, CONROY and HUTMACHER, Plaintiff's group objects to the foregoing Request as same is governed by 18 U.S.C.A. Sections 2510 et. seq., 18 U.S.C.A. Section 2702, Texas Civil Practice and Remedies Code Section 123, United States Constitution First Amendment, Fourteenth Amendment, Nineth Amendment, Fifth Amendment and Fourth Amendment, the Texas Constitution, relevancy, materiality, right of privacy and confidentiality and therefore as a matter of law is prohibited from production. C. ARGUMENTS: 18 U.S.C.A. Section 2511, Subsection (3)(a) provides in part that "a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than the one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient." Upon immediate receipt of SWB's First RFP, counsel for Plaintiff's group immediately contacted SWB and on two occasions has identified the problem. As late as Friday, May 12, 1989, SWB indicated it is requesting that all information and data be provided to counsel for Respondent, SWB. Counsel for Plaintiff's group indicated at that time that such request would be objected to. Specifically, Plaintiff's group would show that the informa- tion sought by Request No. 9 could include private messages posted from individual users to each other and from individual users to the sysops of said system. The federal and state statutes prohibit the production of such documents, messages or data which counsel for Plaintiff's group assert to be confidential and subject to state and federal law. If Plaintiff's group's BBS's can be considered as "provding storage" then 18 U.S.C.A. Section 2702 is relevant and provides as follows: Section 2702. Disclosure of contents. (a) Prohibitions.-Except as provided in Subsection (b)- (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall no knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service- (A) on behalf of, and received by means of electronic transmission from (or created by means of com- puter processing of communications received by means of electronic transmission from), a subscriber or customer of such service; and (B) solely for the purpose of pro- viding storage or computer pro- cessing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. II. A. REQUEST: Southwestern Bell's First Set of Requests for Information, Request No. 40 requests: "Provide copies of the Form 1040, Schedule C filed with the Internal Revenue Service for tax years 1986, 1987 and 1988 related to the operations of your BBS." B. OBJECTION: Petitioner and Plaintiffs object to said request based on right of privacy as provided in the U.S. Constitution, First Amendment, Fourth Amendment, Fifth Amendment, Nineth Amendment and Fourteenth Amendment. C. ARGUMENT: Plaintiff's group would show this Honorable Commission that SWB has sought by means of discovery to ascertain personal income tax records. The Texas Supreme Court has long recognized the right of privacy as it deals with federal income tax returns as sought by SWB, see the case of Crain v. Tunks, 328 S.W.2d 434 (Texas, 1959). SWB's counsel is well aware of the facts and limitations upon inquiries in the matters of federal tax matters. Notwithstanding that matter it has sought to acquire Petitioner's and Plaintiffs' very personal information. In addition thereto, Petitioner and two of the Intervenors, CONROY and HUTMACHER, have clearly indicated to this Commission in pleadings before this Commission that they do not charge for access to their bulletin board systems. Therefore, the inquiry is irrelevant and immaterial as to those parties in which SWB seeks production. SWB is convinced that the operation of bulletin board systems is one of business, when in fact, it is a hobby. As such, Schedule C is irrelevant and/or immaterial to the inquiry before this Commis- sion. Petitioner and Plaintiffs would show that the production of said Schedule C's would invade their personal right to privacy as guaranteed by the United States Constitution and Texas Consti- tution. In the alternative, and without waiving the foregoing, since SWB has moved some bulletin board systems from residential to commercial business rates only occurred in 1988 and yet SWB's request for discovery of documents includes Schedule Cs dated 1986 and 1987, and these requests as to 1986 and 1987 are totally irrelevant and immaterial. SWB has indicated it would not seek to retroactively apply a business rate prior to the fall of 1988. In the alternative, and without waiving the foregoing, Petitioners and Intervenors seek a comprehensive protective order and that said "Schedule C"(s) be ordered to be produced incamera to the Hearing Examiner for determination of whether such dis- closure should be made. Additionally, Petitioner and Intervenors would seek a confidential order requiring any individual who views said information be required to sign an appropriate affidavit with regard to the fact that said information is confidential and disclosure of same may result in the penalty of fine and contempt and that Petitioners and Intervenors be provided with a list of all individuals who have reviewed said documentation and under what circumstances and that the Hearing Examiner clearly determine what individuals, if any, and under what circumstances are entitled to look at said documentation. Finally, Petitioner and Intervenors, TOLAR, CONROY and HUTMACHER, certify that there is nothing related to the operation of their BBS systems contained in their 1988 Schedule C Forms, if any. III. A. REQUEST: Southwestern Bell's First Set of Request for Information, Request No. 44 states "Provide copies of all correspondence, notices, forms, or other documents which you have either sent to or received from any other person other than Southwestern Bell from January 1, 1988, to the present date related to any issue which has been raised in this docket." B. OBJECTION: Petitioner and Plaintiffs object to said request as said requested information is clearly prohibited by virtue of the attorney-client privilege, work product, materiality and relevancy and 18 U.S.C.A. Section 2510 et. seq. and 18 U.S.C.A. Section 2702. C. ARGUMENT Plaintiff's group asserts that private messages have been utilized, and said messages were not directed to SWB, and are in fact private and confidential and said individuals did not intended that the disclosure of said messages be made to SWB, its agents, officers, or employees. Said information is protected by attorney-client privilege, work product and pursuant to 18 U.S.C.A. Section 2511, and 18 U.S.C.A. Section 2702 disclosure of said information could result in the confinement and/or fining of Plaintiff's group individually. In addition thereto, all correspondence regarding this matter by Plaintiff's group has been directed to either the PUC or counsel for SWB and to cause Plaintiff's group to reproduce said material is not only unnecessary but burdensome and oppressive. Some of the information requested has been marked by Petitioner and Intervenors as private mail and was not intended to be distributed to SWB, its agents, officers, or employees. Additionally, SWB requests "any issues which have been raised in this docket;" however, the Hearing Examiner has limited to specific issues and such Request No. 44 should be restricted to the specific items delineated by the Hearing Examiner in Order No. 6 as only those issues which will be dispositive of his final ruling in this matter. IV. A. REQUEST: Southwestern Bell's First Set of Requests for Information, Request No. 45 states "Provide a print out (i.e. a hard copy) of all information which is currently residing in any level of your BBS." B. OBJECTION: Petitioner and Intervenors object to said request based on right of privacy as provided in the First Amendment, Fourth Amend- ment, Fifth Amendment, Ninth Amendment and Fourteenth Amendment of the United States Constitution, burdensome, oppressive, irrele- vant, immaterial, privacy, confidentiality, Texas Constitution, 18 U.S.C.A. Section 2510 et. seq. and 18 U.S.C.A. Section 2701. C. ARGUMENT: Plaintiff's group would show this Honorable Commission that their bulletin boards provide at no cost storage for a number of message bases which provide both public and private massaging. If it were possible for Plaintiff's group to produce said informa- tion, which require overcoming technological problems, it would require disclosure of confidential and private information, all of which is prohibited by federal and state statute, U.S. Constitu- tion and the Texas Constitution. In Petitioner's individual case, his BBS contains thousands of messages, some of which are marked "private mail." Plaintiff's group would further show that operat- ing a bulletin board system is a dynamic process, changing every time a user logs on or maintenance takes place. Therefore, in any one particular moment, the operation of a bulletin board system is subject to change. Petitioner and Intervenors are cognizant of their duties to supplement; however, it would be impossible to operate a bulletin board system and comply with the discovery on a day to day basis because of the changing and dynamic nature of a bulletin board. Further, the costs would absolutely be prohibitive to Plain- tiff's group. To require hard copy(ies) of Plaintiff's group bulletin board systems would require thousands of pages and many man hours and thousands of dollars. In the individual case of Petitioner, a reduction of hard copy of his BBS would require not less than 65,000+ pages of letter size documents, 125 reams of paper (the paper alone would cost in excess of ONE THOUSAND AND 00/100 ($1,000.00) DOLLARS) and his printer would have to operate 24 hours a day for in excess of 45 days. Further Plaintiff's group are not certain and cannot under- stand from SWB's inquiry what is meant by "hard copy of all infor- mation which is currently residing in any level of your BBS." Certain information for purposes of protection are prohibited from access to the general public and other information is held in the highest confidence and viewed by "sysop eyes" only and never made available to the general public. Specifically, addresses, phone numbers, confidential answers to questionnaires which individual users fill out and private mail are confidential and private. Additionally, in the case of the individual Intervenor, TOLAR, Mr. Tolar is sight impaired and cannot because of his impairment even operate a vehicle in the State of Texas. To require this Intervenor to attempt to comply with these requests under these deadlines would be an impossibility. To require the individual, TOLAR, to have to submit to these requests in the format and under the time constraints contained herein are both unreasonable and burdensome. Notwithstanding that, Inter- venor, TOLAR, is prepared to do his best in order to comply with SWB's request under reasonable terms and conditions. Pursuant to the general instructions of the PUC, counsel for Plaintiff's group has attempted to negotiate with counsel for SWB in order to determine specifically what it is that SWB wants under its broad and ambiguous Request No. 45. SWB's counsel indicated that he wanted "everything in memory" (sic). One thing Plaintiff's group is certain of is that SWB does not want everything that is in "memory" because said information would be meaningless, irrelevant and immaterial to any issues in this case. However, because SWB's counsel has indicated that he wants "everything in memory", Plaintiff's group is not in a position to comply with said request at this time until additional clarification is given and protection is afforded for the rights of individual users and for the rights of sysops to maintain the integrity of their system. Again, as previously indicated in prior arguments, the release of said confidential information would be violative of 18 U.S.C.A. 2510 et. seq., 18 U.S.C.A. 2702 and Texas Civil Practice and Texas Civil Practice and Remedies Code Section 123 and for this reason are objected to as a matter of law. V. A. REQUEST: Southwestern Bell's First Set of Request for Information, Request No. 46 states "Provide a list of all current active users of your BBS (handle/nickname, name, address, telephone number, etc.). Include all information which you know about the individuals and indicate whether you have taken any action to verify any of the information." B. OBJECTION: Plaintiff's group vehemently objects to the foregoing Request of SWB as same is governed by 18 U.S.C.A. Sections 2510, et. seq. and 18 U.S.C.A. Section 2702 as previously mentioned and as a matter of law is prohibited from production. In addition, Plaintiff's group object to said request based on invasion of privacy, right of confidentiality, United States Constitution, First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amend- ment, Fourteenth Amendment and the Texas Constitution. C. ARGUMENT: SWB has sought through this inquiry to gather the names, telephone numbers, addresses, nicknames and personal information with regard to the users of Plaintiff's group's BBS's. This infringement of a basic right of privacy is an attempt to chill the atmosphere in which free BBS's operate in the State of Texas. Many users enjoy the anonymity of operation of BBSs. Many users are threatened by the idea that SWB can have access to their names, address, and telephone number, some of which may very well be unlisted, and personal information regarding them. Neither the Petitioner nor any Intervenors during the operation of a BBS service have ever disclosed this information to a third party without the consent of the individual user. At the very minimum these individuals have the right to assert their own rights of privacy. Since the posting on Petitioner's bulletin board of SWB's request, not a single user has authorized Petitioner to reveal any information and all have expressed outrage at such request. Perhaps most chilling and indicative of the kind of request that SWB is making is not only an inclusion of names, addresses and telephone numbers, etc. but requesting that Plaintiff's group provide "all information which you know about the individuals." Plaintiff's group is not in a position to comply and doubt that they will ever be in a position to comply without specific authorization from the individual users, the federal government and the U.S. Attorney General and other appropriate federal and state agencies to release said informa- tion. Said information is not relevant nor material to any inquiry before this Commission as defined under Hearing Examiner's Order No. 6. Additionally, and without waiving the foregoing, such request could subject Plaintiff's group to litigation. As an example of that is the case of a sysop in Indiana who was sued for in excess of $100,000.00 for disclosure of private information. See Thompson v. Predina, United States District Court, Southern District of Indiana, Cause No. IP88-93C where a sysop was sued pursuant to 18 U.S.C.A. 2510 et. seq. for release of private information. To expose Plaintiffs' group to such litigation cannot under any circumstances be considered a reasonable request. Even if SWB were to offer to indemnify and hold Plaintiff's group harmless from any damages resulting from the release of said information, Plaintiffs' group believes that providing said information to SWB would still violate federal and state law. In addition, as stated above, 18 U.S.C.A. Section 2511, Subsection (3)(a) provides in part that "a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than the one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient," and 18 U.S.C.A. Section 2702. Specifically, this means for all of the information which is held private and confidential by Plaintiff's group and the release thereof would subject Plaintiffs' group to penalties and fines as contained in said federal statute. Personal data, addresses, passwords, telephone numbers, and private messages are held in the highest of confidences by sysops throughout the State of Texas and never released without consent of the individual user. In fact extraordinary security measures are provided by BBS systems in order to insure the confidentiality of said information. The information requested in SWB's Request No. 46 is not relevant to any inquiry or material to any inquiry as defined by Hearing Examiner's Order No. 6. Because of the nature of this inquiry by SWB, a copy of said request may need to be forwarded to the appropriate federal and state agencies, including but not limited to the U.S. Justice Department, Federal Communication Commission and the Attorney General for the State of Texas, operating in their lawful capa- cities, notifying them of said request and requesting appropriate action. Plaintiffs' group believes that the terms and conditions of any production of said information may require the consent of the United States Attorney General and the Federal Communication Commission or Federal District Court or other judicial tribunal. In addition, and without waiving the foregoing with regard to all the prior requests, the Commission's attention is respectfully directed to Section 123 of the Texas Civil Practice and Remedies Code provides as follows: Any party to communication may have a cause of action against a third party who intercepts a communication transmitted with the aid of a wire or cable without the consent of either party to the communication. (1) 'Communication' means speech uttered by a person or information including speech that is transmitted in whole or in part with the aid of a wire or cable. (2) 'Interception' means the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of a party to the communication, but does not include the ordinary use of: (A) a telephone or telegraph instrument or facility or telephone and telegraph equipment; (B) a hearing aid designed to correct subnormal hearing to not better than normal; (C) a radio, television, or other wireless receiver; or (D) a cable system that relays a public wireless broadcast from a common antenna to a receiver. Section 123.002. Cause of action. (a) A party to a communication may sue a person who: (1) intercepts, attempts to intercept, or employees or obtains another to intercept or attempt to intercept the communication; (2) uses or divulges information that he knows or reasonably should know was obtained by interception of the com- munication; or (3) as a landlord, building operator, or communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted intercep- tion of the communication. Section 123.004. Damages. A person who establishes a cause of action under this chapter is entitled to: (1) an injunction prohibiting a further interception, or divulgence of use of information obtained by an interception; (2) statutory damages of $1,000.00; (3) all actual damages in excess of $1000.00 (4) punitive damages in an amount determined by the court or jury; and (5) reasonable attorney's fees and costs. Plaintiff's group would show that by request of information by SWB and their insistence on production of said documents, all parties who receive or disseminate this information are subject to civil, and injunctive relief pursuant to the foregoing statute. Without waiving any of the foregoing, and because of the short duration in which Petitioner's counsel has had an opportunity to respond, Petitioner believes that there are additional statutes and statutory authority prohibiting the request for such produc- tion; however, a good faith effort has been made to respond to these RFIs. If no agreement can be reached, Petitioner's counsel additionally requests that these objections and Motion to Quash be set for oral hearing so that all parties who are involved or may be involved will have an opportunity to comment on said RFI and to voice their objections, if any prior to said ruling. WHEREFORE, PREMISES CONSIDERED, Plaintiff's group requests an extension in order to file objections, that said RFI be quashed, a Motion for Protection be entered, objections be sustained and for such other and further relief to which Plaintiff's group is entitled. Respectfully submitted, LIPSTET, SINGER & HIRSCH ____________________________ REGINALD A. HIRSCH 1980 Post Oak Boulevard Suite 1780 Houston, Texas 77056 (713) 961-7800 Bar Card No. 09718500 Attorney for Plaintiff's Group CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Objections and Motion to Quash of Petitioner, Reginald A. Hirsch and Intervenors, Tolar, Conroy and Hutmacher to Southwestern Bell Telephone Company's First Request for Information to Reginald A. Hirsch, Southwestern Bell Telephone Company's First Request for Information to Glynne Tolar, Southwestern Bell Telephone Company's First Request for Information to Steve Conroy and Southwestern Bell Telephone Company's First Request for Information to Thomas Paul Hutmacher has been mailed by certified mail, return receipt requested to Mr. Kirk Kridner, General Counsel for Southwestern Bell Telephone Company, 1616 Guadalupe, Suite 600, Austin, Texas 78701, and by United States Mail to Mr. Glynne Tolar, 2417 Georgia, Deer Park, Texas 77536, Mr. Thomas Paul Hutmacher, 4110 Roseland Avenue, No. 4, Houston, Texas 77006 and Mr. Steve A. Conroy, 315 Plymouth Street, Houston, Texas 77002, Mr. Rick Guzman, Office of the General Counsel, 7800 Shoal Creek Blvd., Suite 450 N., Austin, Texas 78757, and the original and five (5) copies by federal express to Mr. Phillip Holder, Secretary and Director of Hearings, Public Utility Commission of Texas, 7800 Shoal Creek Boulevard Suite 400N, Austin, Texas 78757 with a copy by federal express to Mr. Richard O'Connell, Hearings Examiner, Public Utility Commission of Texas, 7800 Shoal Creek Blvd., Suite 400 N., Austin, Texas 78757 on this the _______ day of May, 1989. _____________________________________ REGINALD A. HIRSCH