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Against the Grain

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DIRECT APPEAL FROM ADMINISTRATIVE AGENCY

AS RATE CASE UNDER N.C.G.S. 7A-29

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STATEMENT OF THE JURISDICTION OF THE

NORTH CAROLINA SUPREME COURT

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This court has jurisdiction pursuant to NC Appellate Rule 18 and N.C.G.S. 7A-29(b); as this is a "rate case" per definition N.C.G.S. 62-3 (24). As a "rate" case ; the exception granted by N.C.G.S. 7A-29(b) permits appeal directly to the North Carolina Supreme Court. Further corroboration for this fact can be found in: N.C.G.S. 62-81. Special procedure in hearing and deciding "rate cases," more specifically in the wording as follows: (a) " All cases and proceedings......or ANY proceedings which will substantially affect any utility's overall level of earnings or rate of return, SHALL be set for trial or hearing by the Commission,...." The North Carolina Public Utilities Commission hereafter the P.U.C. has denied Plaintiff/Complainant his fundamental and statutory right to a hearing on the merits per N.C.G.S. 62-81.

N.C.G.S. 62-132 specifically establishes the REMEDY available to a party for a violation of any contested rate matter. That remedy is "..... a PETITION filed by ANY interested person, AND a HEARING thereon, ......" Such hearing, and therefore the only administrative remedy for such contested rate was DENIED petitioner/s, including the denial of any fact finding Discovery. This denial precluded Plaintiff/s from any meaningful Administrative remedy; thereby forcing Complainant to invoke the Jurisdiction of this Supreme court to effectuate the proper and justiciable remedy at law. And further authority is North Carolina Constitution at Article IV, Section 12, Para 1, "The Supreme Court also has jurisdiction to review, when authorized by law, direct appeals from a final order or decision of the North Carolina Utilities Commission." To this regard, Plaintiff/Complainant further makes application for this court to invoke its powers under Appellate Rule # 2; to suspend or vary the requirements or provisions of any of its Rules to insure justice to the complainant/s and in consequence thereby; the general public.

This Record of Appeal is entered by the parties of Record, the Complainant/Appellant and the Intervener/Appellant

Dated: 13 Day of December, 1999

Albert Coombs Appellant/Complainant, separately and sui juris

Paul Burge Intervenor/Appellant, separately and sui juris

subject to Grant by the Court of Motion to Join

TABLE OF CONTENTS

QUESTIONS PRESENTED

I. DID THE PUBLIC UTILITIES COMMISSION OFFICERS VIOLATE THEIR OATH'S TO UPHOLD ALL THE LAWS OF THE STATE AND UNITED STATES WHEN DENYING A DUE PROCESS HEARING AFTER COMPLAINANT SUBMITTED DISCOVERY QUESTIONS THAT MIGHT HAVE FOCUSED COMPLICITY ON THE COMMISSION ITSELF?

II. DID THE PUBLIC UTILITIES COMMISSION OFFICERS ABUSE THEIR DUTY TO RULE FOR THE PLAINTIFF/APPELLANT, AS A MATTER OF LAW, BY DEFAULT WHEN DISMISSING AN OBVIOUS PRIMA FACIE CASE WITH ISSUES PRESENTED UNDER SEAL?

III. DID THE PUBLIC UTILITIES COMMISSION OFFICERS IGNORE THE COGENT FACT THAT THE GENERAL ACCOUNTING OFFICE SUBMISSION BY ITS GENERAL LEGAL COUNSEL THAT THE "GORE TAXES" ARE NON-CONSTITUTIONAL, AS THERE IS NO ENABLING ACT BY CONGRESS "AUTHORIZING" THE FCC TO ALLOW THE RESPONDENT/APPELLEES TO COLLECT THESE TAXES AND CHARGES?

IV. DID THE PUBLIC UTILITIES COMMISSION OFFICERS, IN DISMISSING THE COMPLAINT, DENY THE FACT THAT THE GAO, A FEDERAL AGENCY, CONCURRED IN A VIOLATION OF 31 USC 9102; AND THEREBY RAISED A "COGENT" ISSUE REQUIRING A PUBLIC HEARING?

V. DID THE PUBLIC UTILITIES COMMISSION OFFICERS, IN DISMISSING THE COMPLAINT, RELY ON THE RESPONDENTS/APPELLEES NON SUBMITTAL OF ANY EVIDENCE TO REFUTE THE PLAINTIFF AND GAO EVIDENCE, VIOLATE ALL REASON OF JUSTICE IN THE ADMINISTRATIVE ADJUDICATION OF THE MATTER WHEN THE RECORD REFLECTS THAT THE GENERAL STATUTES OF NORTH CAROLINA, REQUIRE DECISIONS ARE TO BE BASED ON THE FACTS OF RECORD?

VI. DID THE PUC DENY DUE PROCESS TO PLAINTIFF/ APPELLANT WHEN REFUSING TO ISSUE DISCOVERY TO RESPONDENT/APPELLEES, AFTER PUC INITIALLY SET THE HEARING, THAT WOULD HAVE BROUGHT FORTH FACTS DISCREDITING RESPONDENT/APPELLEE'S UNSUBSTANTIATED DENIALS.

VII. DID THE PUC DENY, MATTER OF "COURSE" DUE PROCESS TO THE REQUESTING INTERVENOR WHEN DISMISSING HIM FROM THE ACTION WITHOUT CAUSE WHEN HE HAS THE SAME CLASS OF BONA FIDE INTEREST AS APPELLANT AND HE HAD COMPLIED COMPLETELY WITH THE RULES FOR INTERVENTION STATUS.

VIII. DID THE PUC FAIL IN ITS FIDUCIARY RESPONSIBILITY TO ALL PARTIES BY FAILING TO SET THE MATTER AS A "RATE CASE" AS DEFINED AT NCGS 62-3 (24) AS IN THE FACT TO WIT: "ANY PROCEEDINGS WHICH WILL SUBSTANTIALLY AFFECT ANY UTILITY'S OVERALL LEVEL OF EARNINGS OR RATE OF RETURN, SHALL BE SET FOR TRIAL OR HEARING BY THE COMMISSION?

IX. DID THE PUC VIOLATE THE GENERAL STATUTES OF NORTH CAROLINA WHEN DENYING PLAINTIFF/APPELLANT REMEDY ON HIS EVIDENCE, AGAINST BLANKET DENIALS THAT WERE UNSUBSTANTIATED WHEN THE STATUTE CLEARLY STATES IN A RATE CASE SUCH AS THIS THE "BURDEN OF PROOF IS ON THE RESPONDENT/APPELLEES?

X. DID THE PUC FAIL IN ITS DUTY TO DO JUSTICE AND DENY DUE PROCESS WHEN NOT COMPELLING THE RESPONDENT/APPELLEES TO PRODUCE A REGULATION THAT SUPERSEDED THE REGULATION PRODUCED BY APPELLANT THAT DECLARED THE FEDERAL EXCISE TAX REPEALED IN JULY OF 1965?

XI. IS THE PUC, BASED ON ALL THE EVIDENCE SUBMITTED TO THIS COURT, INVOLVED IN A COMPLICITY TO DENY PLAINTIFF FROM BRINGING THIS CASE TO THE PUBLIC'S ATTENTION AT A PUBLIC HEARING BECAUSE THIS CASE WILL SHOW THE PUC WAS CARELESS IN APPROVING A TARIFF THAT WAS NOT AUTHORIZED BY CONGRESS AND/OR OTHER CHARGES THAT HAD PREVIOUSLY BEEN REPEALED?

XII. WILL THIS COURT NOW GIVE THE REMEDY REQUESTED TO PLAINTIFF/APPELLEE BECAUSE THE PUC WOULD OBVIOUSLY BE SITTING IN ITS OWN JUDGEMENT IF REMANDED FOR FURTHER PROCEEDINGS, AND THIS WOULD CONSTITUTE A SEVERE CONFLICT OF INTEREST ACCORDING TO LAW ?

STATEMENT OF THE CASE

Plaintiff wrote letters to the Respondents from July 1998 to December 1998 complaining of all the charges that were found to be lacking in valid legislative authority. Having no results a Formal Letter of Protest and Complaint was filed November 30, 1998 with the Public Utilities Commission (PUC) against Sprint. The PUC, on or about December 2, 1998, determined it had jurisdiction and included AT&T in the Complaint. The Complaint was sent by PUC to Respondents by Order to respond dated December 7, 1998. Respondents answered with blanket denials. Complainant contacted the General Accounting Office (GAO) for assistance in the matter. On January 14, 1999 the GAO sent to the PUC the determination of Chief Counsel Robert P. Murphy concerning the matter at hand. On June 30, 1999, a Hearing was Ordered by the PUC for August 9, 1999 in Raleigh. On July 9, 1999, Plaintiff filed for discovery. On July 14, 1999 without reason; the PUC canceled the scheduled Hearing without resetting another date. On August 20, 1999, Paul Burge filed a Petition to Intervene. On September 2, 1999 the PUC dismissed the Complaint absent any statement of fact or Law. On September 4, 1999 Plaintiff filed a Clarification and request for good cause shown why Complaint was dismissed without a Hearing. On September 17, 1999 the Complainant filed an objection in an Appeal to the PUC's dismissal of the Complaint. The PUC issued an Order dated September 21, 1999, that a response would be presented from PUC by October 1, 1999. On September 23, 1999, Paul Burge appealed the Commission's Decision. On September 27, 1999, Plaintiff, to preserve the time limit on appeal, filed a Notice of Appeal to the Commission and Respondents that Plaintiff was appealing to the Supreme Court, because the anticipated October 1, 1999 response from PUC would carry past the 30 days in which to Notice the PUC of appeal. The Commission failed its own order to respond to Plaintiff by said date of October 1, 1999 and never responded to the Intervenor and his appeal. Phone calls were made to the PUC by both Plaintiff and Intervenor and no action or satisfaction was obtained by the PUC even though their attorney, Larry Height, said he would review the matter and reply to Mr. Burge's appeal. No one ever replied to Mr. Burge

STATEMENT OF THE FACTS

As there was no Hearing there are no transcripts to refer to facts. Therefore the facts are the Composition of the Record required to be filed and are stated herein as the facts of the case.

The Full file Folder of the Public Utilities Commission (PUC) as Facts. Exhibit A.

Memorandum of PUC after Complaint was filed, dated December 2, 1998, showing the facts that PUC added AT&T as proof that the PUC had determined it had complete jurisdiction in the matter before it. Exhibit B

The following facts are in Exhibit C, the Complaint, which led up to the Complaint.

July 28, 1998, Letter to AT&T care of Sprint stating Plaintiff will no longer pay the following:

Universal Service Fund, Carrier Line Charge, 911 and surcharge, Federal tax Sprint and AT&T, State Tax Sprint and AT&T sub-exhibit A.

August 11, 1998, Sprint's Response sub-exhibit B.

August 20, 1998, Letter to Sprint using case cites and NCGS to support Plaintiff's points, sub-exhibit C.

August 28, 1998, Letters to Sprint and AT&T showing a corrected Bill for August 1998, sub-exhibit D.

September 9, 1998, Sprint's Response, sub-exhibit E.

September 18, 1998, THIRD NOTICE to Sprint showing definition of "surcharge" and four exhibits attached which are all government documents, i.e showing repeal of tax regulation; Repeal of tax by P.L. 90-364; 26 CFR showing the Form for federal excise tax; Code of Federal Regulations showing no 26 USC Statute for excise tax and 26 CFR 601-106 violation of taxing of property by exaction, sub-exhibit F.

Sub-exhibit G is a duplication of cover letter sub-exhibit F.

September 28, 1998, letter to Office of the Secretary, Department of Treasury, sub-exhibit H. There was no response to date of this appeal from that office.

September 23, 1998, Constructive Notice to Sprint containing excerpt from phone conversation with AT&T Mr. Vonholtz on September 18, 1998; excerpt from GAO report; and citing Schwank on Administrative Crimes and Am Jur on Fraud, because of the lack of meaningful answers from either phone company, sub-exhibit I. September 28, 1998, letter to AT&T Tax Group as suggested by AT&T Mr. Vonholtz phone conversation, sub-exhibit J.

October 8, 1998 Notice of Default and Administrative Determination via Tacit Procuration, 15 pages, containing 73 questions and the answers, by proxy of Sprint President Dwight Allen, with summary and final determination. This contains NCGS, Am. Jur. principles, case cites, regulations, Public law and Title 18 cites, sub-exhibit K. Fact; no response to deny any of the answers from Mr. Allen by Mr. Allen or attorneys for Sprint.

October 22, 1998, Corrected Bill and Invoice to Sprint, sub-exhibit M.

November 24, 1998, Letter from Sprint expressing they will shut off phone service sub-exhibit N. These facts stated above, led to the filing of the Complaint with the PUC which contained all the documents mentioned as sub-exhibits.

Statement of Facts After the Complaint Filed

December 28, 1998 Sprint's answer and Motion for Oral argument, showing only blanket denials with no contrary evidence. Exhibit D.

December 30, 1998, Order Serving Answer and Motion to dismiss. Exhibit E.

January 14, 1999, Submitted Documents by the U.S. General Accounting Office, showing the fact of non-constitutionality of some of the disputed charges. Exhibit F.

January 22, 1999, Order serving Request for More Definite Statement with Attachment. These facts show the response by Respondent/Appellees lacked any evidence, substantial or otherwise and was in need of more definite response. Exhibit G.

January 26, 1999, Complainant's response to AT&T's Motion to dismiss, shows seventeen paragraphs of facts that to this day AT&T has refused to counter with evidence to the contrary. Exhibit H.

May 03, 1999, Complainant's Responses, Dates for Hearing and Corrected Bill and Order serving Response. These facts and the fact that the hearing dates, suggested by Plaintiff/ Appellant, was acted upon subsequently by the PUC when PUC set the Hearing date. Exhibit I.

June 30, 1999, This fact shows an Order Scheduling Hearing was the PUC's determination that a Hearing had to be set. Exhibit J.

July 09, 1999, Complainant's Administrative Request for Discovery. These facts show that Plaintiff/Appellant exercised his right to have discovery, by law, before the hearing so as to ascertain that the Respondent/Appellants had evidence that would support their position to all the disputed charges, so that Plaintiff/Appellant, would stand corrected before proceeding to the Hearing. It was also a fact to thwart any undue advantage by Respondent's surprise evidence that they may have held back in bad faith to take unfair advantage of Plaintiff/Appellant. Exhibit K.

July 14, 1999, Order Continuing Hearing, This fact shows that only one Hearing Examiner and no panel of three nor the whole Commission was involved up to this point. Another Fact is that no Examiner has the right to intercede in any discovery to make any determination. It shows a third fact that the Hearing was "continued" pending further Order as it denies Due Process to hold a Hearing. Exhibit L.

July 28, 1999, Order Making Provisional Finding of No Reasonable Grounds to Proceed and Allowing Response. These facts show that the PUC had denied all the hard evidence under seal that it was true and correct even under the Rules of evidence 902 and sided with the Respondent/Appellee's when the plain fact is they had no evidence to support their stance and rebut Plaintiff/Appellant's position. Exhibit M.

August 05, 1999, Complainant's Motion to Amend Complaint and Order Serving. This fact stems from a newly instituted charge that appeared the previous month of July, which was not authorized by Congress nor any State legislature. The Facts of law are stated throughout the 13 paragraphs and also includes a corrected Bill stating the particular law along with an invoice. Fact, Plaintiff has been paying all charges that are not in dispute and continues to do so, but has not been paying the disputed charges. Exhibit N.

August 09, 1999, Complainant's Response to Commission Order of 7-28-99 with exhibits A and B. This document when read completely lays out all the FACTS that the PUC does have Jurisdiction in spite of the fact the PUC states otherwise with no proof. Exhibit A has the facts directly from the 1996 Telecommunications Act. Exhibit B has the proof the PUC had jurisdiction via Memorandum which they added AT&T to the original Complaint. Exhibit O.

August 20, 1999, Petition to Intervene by Paul Burge. Exhibit P.

September 2, 1999, Order Dismissing Complaint. This fact shows no hearing was held thereby denying Due Process. Exhibit Q.

September 03, 1999, Clarification, Request for Good cause shown. Fact--This does not appear on the File Folder yet it was sent certified R.R.R. on Sept. 04, 1999, yet the green card shows a date received on 9\14, which is very suspect because all such mail is delivered either that day of post mark or the next day through out all the proceedings. This is evidenced that the day the Order was signed, September 2, 1999, Plaintiff received same on September 2, 1999 as evidenced by the certified green card shown on the file folder. Fact, Plaintiff created the response on Sept 03 and mailed it Sept 04. The facts show the PUC did not want to enter this on the file folder and answer this as it would show the complicity involved. Exhibit R.

September 17, 1999, Complainant's Appeal of Interim Decision of the Commission and Order serving dated September 21, 1999. This document shows facts that the alleged Order was not a final order dismissing the Complaint via NCGS 62-79. The fact is the Appeal was never complied with by the PUC to whom it was directed. Fact is that the woman who drafted the Order admitted the mistake of putting the Respondents on the Order when it was the PUC that had to answer the appeal to their decision. FACT--To this date PUC has not responded to their own Order, leaving Plaintiff/Appellant no recourse but to file an appeal to this Court. Exhibit S.

September 27, 1999, Complainant's Appeal to the North Carolina Supreme Court. A Notice of Appeal was filed with the PUC to preserve the appeal because the PUC response was to be October 1, 1999 and would put the Plaintiff past the 30 day limit IF the dismissal was, in actuality, a final dismissal. Exhibit T.

October 26, 1999, Settling the record. Exhibit U.

November 30,1999, letter concerning setting the record.Exhibit V.

ARGUMENT

(1). THE PUC COMMITTED ERROR IN DENYING A HEARING MANDATED BY LAW THEREBY DENYING DUE PROCESS.

ASSIGNMENT OF ERROR NO. 1

The PUC Chairman, having determined after over 10 months of Administrative review that a Hearing was in order and justified on the merits, set the Hearing date for August 9,1999, at 2pm at the Dobbs Bldg.; suddenly, and only AFTER I initiated my first DISCOVERY request; reverses itself and denied any opportunity for a meaningful hearing while withholding any cause for its action.

§62-13. Chairman to direct Commission.

(a) The chairman shall be the chief executive and administrative officer of the Commission.

(b) The chairman shall determine whether matters pending before the Commission shall be considered or heard initially by the full Commission, a panel of three commissioners, a hearing commissioner, or a hearing examiner. Subject to the rules of the Commission, the chairman shall assign members of the Commission to proceedings and shall assign members to preside at proceedings before the full Commission or a panel of three commissioners.

§62-60. Commission acting in judicial capacity; administering oaths and hearing evidence; decisions; quorum.

For the purpose of conducting hearings, making decisions and issuing orders, and in formal investigations where a record is made of testimony under oath, the 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.

Plaintiff after asking, was never told who the Hearing examiner was that withheld the discovery and withdrew the hearing. Contrary to the explanation given to Plaintiff, by Larry Height, the PUC's General counsel that NCGS 62-73 ended the complaint, this is contrary to statute, to wit: it is stated very clearly that a hearing must be held:

§62-73. Complaints against public utilities Unless the Commission shall determine, upon consideration of the complaint or otherwise, and after notice to the complainant and opportunity to be heard, that no reasonable ground exists for an investigation of such complaint, the Commission shall fix a time and place for hearing, after reasonable notice to the complainant and the utility complained of, which notice shall be not less than 10 days before the time set for such hearing.

This point alone establishes that the PUC HAD ALREADY determined "good grounds exist" which is precisely why a meaningful hearing date was "set".

Since Plaintiff CANNOT request Discovery before a hearing date is set; one can only draw the conclusion that something contained within the First request for Discovery(questions) caused the PUC such consternation that it suddenly decided to Quash the entire matter.

This is contrary to Statute, Due Process, is unreasonable and unjust, and lacks any semblance of justice. In fact, this allegation is supported by a conversation that Intervener "Burge" had with Mr. Larry Height; wherein Mr. Burge was told by counsel Height that this action should have been against the PUC itself, if "our" allegations were true!

(2) THE PUC COMMITTED ERROR IN DENYING THE SUBMISSION OF DISCOVERY AS REQUIRED BY LAW, THEREBY DENYING DUE PROCESS.

ASSIGNMENT OF ERROR NO. 2

The PUC refused to issue requested Discovery upon Respondents, Sprint and AT&T, dated July 8, 1999 and issued an Order dated July 14, 1999, continuing without date set, the Hearing set for August 9, 1999. The PUC is bound by the Rules of evidence as used in Superior Courts as per NCGS 62-65 as stated in the PUC Rule R1-24 (a) and (b). One of the tenets of the Rules of law is discovery which was flatly denied by the single Hearing Examiner, who, as it was stated in the Order continuing the Hearing dated July 14, 1999, ""the" Hearing Examiner requests a continuance of the hearing in order to have an opportunity to review the latest filings." Those filings WERE Plaintiff's Discovery request. The PUC is not allowed to censor or even review discovery and there is no statute authorizing the PUC to do so as it would violate the neutrality required of the Agency; the very fabric of due process, rules of evidence, and plain old justice.

The Supreme Court of the United States and lower federal Courts hold as well that discovery is of prime importance in any civil matter. So much so; as stated in Williamson v U.S. Department of Agriculture, 815 F2d 368 (1987) wherein is stated, as does Plaintiff here, "If discovery could uncover one or more substantial issues, plaintiff was entitled to reasonable discovery prior to district court's granting a motion for summary judgement."

Rules of Civil Procedure contemplate liberal discovery in interest of justice and complete resolution of disputes and the Supreme Court in U.S.v Nixon, 418 U.S. 683, 41 Led2d 1039, 94 S Ct. 3090 expounded greatly on the rules of discovery. If Respondents were correct in their claim and had nothing to hide, and the PUC was indulgent and not giving the appearance of a coverup, PUC would have sent discovery to the Respondents so they could substantiate their position with the evidence Plaintiff demanded instead of relying on nothing but blanket denials to base the dismissal of the Complaint.

(3) THE PUC COMMITTED ERROR - IN THAT IT FAILED TO FOLLOW THE STATUTES TO WHICH IT IS BOUND - IN DISMISSING THE COMPLAINT WITHOUT ANY EVIDENCE OFFERED BY RESPONDENTS TO REFUTE COGENT FACT MATTER OFFERED BY PLAINTIFF.

ASSIGNMENT OF ERROR NO. 3

The PUC contradicted and countermanded its own two prior Orders by abruptly dismissing the case without complying with established Law, custom; statute or regulations. The PUC had no cause whatsoever from Respondents answers, upon which to base any summary conclusions and thereby render a decision that no reasonable grounds existed to dismiss the Complaint. Plaintiff thus has good reason to assert that "no" verifiable basis is given by the PUC in the form of Facts and Conclusions of Law ,as required by statute; because none existed. The fact that evidence must be shown and entered by Respondents is clearly spelled out in the following statute:

§62-65. Rules of evidence; judicial notice.

(a) When acting as a court of record, the Commission shall apply the rules of evidence applicable in civil actions in the superior court, insofar as practicable, but no decision or order of the Commission shall be made or entered in any such proceeding unless the same is supported by competent material and substantial evidence upon consideration of the whole record.

The above statute bars the PUC from using NCGS 62-73, as a basis of dismissal, when asserting that no cogent material was ever entered by the Plaintiff, where Plaintiff's voluminous fact matter is obviously supported by the legal department of the General Accounting Office of the United States. The mere statement; "that something is not "cogent" is tantamount to the statement ? The sky is high ? It tells me nothing by which to measure the statement. Also no hearing was held to determine there was no reasonable grounds, as stated in NCGS 62-73.

(4) THE PUC IS IN ERROR BECAUSE OF FAILURE TO FOLLOW ITS OWN RULES, STATUTES, AND RULES OF EVIDENCE, AND BY DENYING DISCOVERY THAT WOULD HAVE REQUIRED RESPONDENTS TO FINALLY ANSWER WITH ITS COGENT MATERIAL TO SUPPORT THEIR BLANKET DENIALS.

ASSIGNMENT OF ERROR NO. 4

Plaintiff submitted the Statutes, Codes, Regulations and Public laws to evidence and support his position with support and corroboration from the General Accounting Office of the United States. Respondents Offered no rebuttal or evidence to answer the documented Public Law and Statute/s proffered by Complainant which established a clear prima facie case in controversy. The Respondents general denials, absent any evidence in support to counter the Complaint at Bar, must fail for lack of "substance," and the summary dismissal by the PUC must be clear error.

The PUC; absent any meaningful response, cannot possibly dismiss a verified Complaint without findings of fact and conclusions of law.

North Carolina General Statute states;

"G.S. §62-65. Rules of evidence; judicial notice.

(a) When acting as a court of record, the Commission shall apply the rules of evidence applicable in civil actions in the superior court, insofar as practicable, but no decision or order of the Commission shall be made or entered in any such proceeding unless the same is supported by competent material and substantial evidence upon consideration of the whole record . . .." AND PUC's own Regulation;

Rule R1-9(e) Answer. The answer must admit or deny each material allegation of the complaint or allege insufficient information on which to admit or deny the same. It shall set forth any new matter relied upon as a defense and shall be so drawn as to fully advise the complainant and the Commission of the particular grounds of defense. The filing of an answer will not be deemed an admission of the sufficiency of the complaint and shall be without prejudice to the right of the defendant to thereafter file a motion to dismiss the complaint for failure to state a cause of action.

(5) THE PUC VIOLATED THEIR OATHS AND DUTY IN DENYING PLAINTIFF HIS DUE PROCESS WHEN IT BECAME APPARENT THAT PLAINTIFF'S COMPLAINT WOULD IMPACT ON THE PUC ITSELF AND DISCLOSE EITHER PLAIN ERROR, OR INCOMPETENCE IN ITS FAILURE TO PROPERLY POLICE THE RESPONDENT UTILITIES BY OVERLOOKING THE FACT?THAT NO "VALID" LAW WAS PROPERLY PROMULGATED REQUIRING PLAINTIFF, INTERVENOR AND ALL USERS OF THE TELECOMMUNICATION SYSTEM TO BE RESPONSIBLE FOR THE CHALLENGED CHARGES IN PLAINTIFF COMPLAINT.

ASSIGNMENT OF ERROR NO 5

The PUC employees/officers violated their oaths to uphold G.S. 62?60.1, because exceptions to the PUC's alleged Final Order was filed, as shown in the highlighted portions, and the Plaintiff/ Appellant was only informed by PUC's General counsel, Larry Height, that a Examiner would make a determination, not a three panel or the whole Commission. The PUC's ORDER dated September 21, 1999, was never answered by the PUC on October 1, 1999 as was required,; therefore it defaulted, and the alleged Final Order was never a final Order as no required public hearing was held.

§6-60.1. Commission to sit in panels of three.

(a) The Utilities Commission shall sit in panels of three commissioners each unless the chairman by order shall set the proceeding for hearing by the full Commission.

(b) Any order or decision made unanimously by a panel of three commissioners shall constitute the order or decision of the Commission, except as otherwise provided in this Chapter; provided, however, that upon motion of any three commissioners not sitting on the panel, made within 10 days of issuance of such order or decision of the panel, with notice to parties of record, the order or decision of the panel shall thereby be stayed and the full Commission shall review the order or decision of the panel and shall within 30 days of said motion either affirm or modify the order or decision of the panel or remand the matter to the panel for further proceedings; provided that the foregoing shall not limit the right of parties to seek review of such order or decision under G.S. 62-90.

(c) In the event an order or decision of the panel of three is not made unanimously, such order or decision shall be a recommended order only, subject to review by the full Commission, with all commissioners eligible to participate in the final arguments and decision. Review shall take place in accordance with the provisions of G.S. 62-78 and the Commission shall decide the matter in controversy and make appropriate order or decision thereon within 60 days of the date of the recommended order. If within the filing period specified by the panel no exception has been filed by a party, or if the Commission within the same period has not advised the parties that it will conduct a review upon its own motion, the recommended order or decision shall become the final order or decision of the Commission. Nothing in this section shall amend or repeal the provisions of G.S. 62-34.

(d) This section shall become effective July 1, 1975, and shall not affect the utilization of or the procedures outlined for utilization of a hearing commissioner or a hearing examiner as provided for elsewhere in Chapter 62. (1975, c. 243, s. 4; 1977, c. 468, s. 13.)

The Plaintiff filed exceptions in his Appeal of the alleged Interim Decision of the Commission dated and received by the Commission 9/17/99, thereby complying with 62-60.1 (c).

(6) THE PUC OFFICIALS FAILED IN THEIR DUTY OF IMPARTIALITY BY REFUSING TO RECOGNIZE MEANINGFUL SUPPORTING EVIDENCE FROM HIGHER AGENCY SOURCES, AND THEREFORE THEY FAILED TO HONOR THEIR OATHS OF OFFICE TO DO JUSTICE TO THE PEOPLE

ASSIGNMENT OF ERROR #6

The PUC is not giving due credence to the GAO Report filed on behalf of the United States; that clearly supports and gives substantial credence to Plaintiff/Appellant pleading;. Although we acknowledge that Congress enacted a Public Law 104-458 ,for the specific purpose to allow the phone companies lee way in how they operate. That same Law IS ABSENT any delegation of authority to the FCC to legislate a tax or fee upon the American people. These charges are unauthorized and even if they had been properly promulgated; they would immediately be unconstitutional as a PRIVATE, extra governmental grant of a "taxing power" reserved only to the states and federal government.

G.S. § 62-65 states at (b), The Commission may take judicial notice of its decisions, the annual reports of public utilities on file with the Commission, published reports of federal regulatory agencies, the decisions of State and federal courts, State and federal statutes, public information and data published by official State and federal agencies.

(7) THE PUC COMMITTED ERROR WHEN NOT ADHERING TO THE ADVERSARIAL SYSTEM OF PLEADING.

ASSIGNMENT OF ERROR NO. 7

The PUC failed in its capacity of neutral observer and referee when it failed to REQUIRE, that the Respondents, Sprint and AT&T, properly participate and reply to issues and controversy raised and supported by competent evidence and authority. The burden of proof; in a rate case, "is" upon Respondents, but the P.U.C. failed under Public Policy to carry out the law.

G.S. §62-75. Burden of proof.

Except as otherwise limited in this Chapter, in all proceedings instituted by the Commission for the purpose of investigating any rate, service, classification, rule, regulation or practice, the burden of proof shall be upon the public utility whose rate, service, classification, rule, regulation or practice is under investigation to show that the same is just and reasonable. In all other proceedings the burden of proof shall be upon the complainant. (1949, c. 989, s. 1; 1963, c. 1165, s. 1; 1985, c. 676, s. 8.)

Therefore, it was the Respondents that had the burden of proof to produce the documents required to firmly establish their position. The PUC completely failed and committed grave error, when it purposely denied any discovery into this matter and utterly frustrated any search for the truth. Discovery would have forced the Respondents hand and they finally would have had to admit via documentation, or the lack thereof, their total absence of proper authority to proceed as they have been ..

Had the PUC issued the discovery, the Respondents tenuous standing would have been magnified by their failure to produce the required statutes, regulations and other material to substantiate their position. The PUC officials could see this to be the situation, and consequently denied ordering discovery and summarily dismissed the Complaint.

Further more the PUC Rule R1-9(e) states:

"Answer. The answer must admit or deny each material allegation of the complaint or allege insufficient information on which to admit or deny the same. It shall set forth any new matter relied upon as a defense and shall be so drawn as to fully advise the complainant and the Commission of the particular grounds of defense. The filing of an answer will not be deemed an admission of the sufficiency of the complaint and shall be without prejudice to the right of the defendant to thereafter file a motion to dismiss the complaint for failure to state a cause of action.

" As is evident in all the response exhibits of the Respondents, there is not one shred of evidence of so called cogent material to validate the PUC's dismissal of the Complaint. Especially when remembering that the Burden of persuasion rested with the Respondents. Coupling these facts, with common sense, any prudent man would immediately see that the PUC was prejudiced against the interests of Plaintiff and Intervenor at the outset. In all probability, the P.U.C. was shielding the failure of its staff to properly and fully investigate the pre AUTHORIZATION of these disputed and improper fees. Even its own General Counsel, Mr Larry Height admitted to Mr. Burge over the telephone, that "we" were suing the wrong parties, since it was "they" [the P.U.C.] that "authorized" the tariff authority for the disputed charges in the first place.

In light of this admission; can anyone doubt for an instant that the P.U.C. was compromised in its oversight authority from the beginning? Complainant/s Discovery request simply brought this entire impasse to a head; especially when the P.U.C. staff read the questions that were promulgated to Respondents.

(8) THE PUC ERRED IN IT'S ALLEGED FINAL ORDER OF DISMISSAL, AS IT HAD NO EVIDENCE ENTERED INTO THE RECORD BY RESPONDENTS UPON WHICH TO BASE A DISMISSAL.

ASSIGNMENT OF ERROR NO. 8

These errors are evidenced in the following statutes; G.S. §62-79.

Final orders and decisions; findings; service; compliance.

(a) All final orders and decisions of the Commission shall be sufficient in detail to enable the court on appeal to determine the controverted questions presented in the proceedings and shall include:

(1) Findings and conclusions and the reasons or bases therefor upon all the material issues of fact, law, or discretion presented in the record.

Therefore, the PUC showed bias, prejudice and complicity in the matter, to deny Plaintiff/ Appellant a ruling upon the WHOLE record that Complainant is not required to pay the charges in dispute. Especially when following the mandates of, G.S. §6-?78. Proposed findings, briefs, exceptions, orders, expediting cases, and other procedure., wherein there is mention of three panel of Commissioners affording ample hearing and the opportunity to file exceptions to the alleged decision, whereupon the Commission "shall show the ruling upon each requested finding and conclusion or exception.", which the Commission did not respond at all to Plaintiff. The Commission is also mandated that it; "shall afford the party or parties an opportunity for oral argument." Since exceptions were filed, "it shall be the duty of the Commission to consider the same and if sufficient reason appears therefor, to grant such review or make such order or hold or authorize such further hearing or proceeding as may be necessary or proper to carry out the purposes of this Chapter." The Court should note the copious reference to HEARINGS SHALL, throughout all these N.C.G. Statutes which was IMPROPERLY denied Plaintiff and Intervenor Paul Burge.

(9) THE PUC EXHIBITED EXTREME PREJUDICE IN DENYING INTERVENTION BY PAUL BURGE INTO THE COMPLAINT AND EXHIBITED A BLATANT DISREGARD FOR THE STATUTES of north Carolina AND ITS OWN regulations, FURTHERMORE, MR. BURGE WAS NEVER PROPERLY NOTICED IN REPLY TO HIS PETITION; PURSUANT TO STATUTE.

ASSIGNMENT OF ERROR NO. 9

It was prejudicial Error for the P.U.C. to deny the Intervener petition by Paul Burge, a certified Paralegal, into this action. Mr. Burge filed his petition "timely" and exactly pursuant to Commission Rule R1-19. Mr. Burge stated in his petition "that he had done his own independent research into the issues and facts alleged.... and finds agreement with the matters of record." Mr. Burge also, did not receive any "reason/s" for that denial of intervention; which the Commissions own regulations; at R1-19(d) states ".....Leave to intervene filed....in compliance with this Rule...... will be granted as a matter of course...." This is in agreement with PUC Rule 1-19(e) "(f) Interveners. Any person or organization having an interest in the subject matter of the complaint may intervene and be made a party to the proceeding by complying with the provisions of Rule R1-19." Other than in furtherance of a scheme to "bury" this action and limit public exposure; I can discover no rational reason why Mr. Burge was barred from joining in my Complaint. Although The Hearing date "had been set" for August 9, 1999, which would have alerted the public at this public hearing, Complainant believes that Intervener was well within the spirit and letter of the Rules to be granted leave to Intervene when the Commission subsequently "continued indefinitely" said hearing date of August 9, 1999, and never set a "called" to hearing date!

(10) THE PUC OFFICIALS KNEW, OR SHOULD HAVE KNOWN FROM EXPERIENCE, THAT THIS WAS A RATE CASE BY DEFINITION AND THEY NEGLIGENTLY OR MALICIOUSLY FAILED TO RENDER PROPER STATUS AND PRIVILEGE TO SUCH A PROCEEDING.

ASSIGNMENT OF ERROR NO. 10

The PUC is in error when it did not comply with G.S. 62-137, and acknowledge that DOCKET NUMBER P-89, SUB 69 is a general rate case.." This action, potentially affects every telephone "user" in the entire country. The decision of this court could have reverberations as the case of the century, because of the ramifications of a decision favorable to Complainant/s.

For the P.U.C. to even intimate that this action doesn't satisfy the "general rate case standard" is so utterly absurd; that I am embarrassed for the commission. This complaint affects not only the rate of return of Respondents ; but in fact, their entire solvency; and the Balance sheets of every phone carrier in the country. Because it has never been properly classified per statute, Complainant/s and the people of North Carolina have been denied fundamental Due Process and the proper Procedure specially reserved to just such a matter of Complaint.

G.S. 62-137. Scope of rate case.

In setting a hearing on rates upon its own motion, upon complaint, or upon application of a public utility, the Commission shall declare the scope of the hearing by determining whether it is to be a general rate case, under G.S. 62-133, or whether it is to be a case confined to the reasonableness of a specific single rate, a small part of the rate structure, or some classification of users involving questions which do not require a determination of the entire rate structure and overall rate of return. The procedures established in this section shall not be required when pricing alternatives permitted under G.S. 62-134(h) and (j) are adopted. (1963, c. 1165, s. 1; 1989, c. 112, s. 4.)

(11) THE PUC IS IN ERROR WHEN ABDICATING THEIR OATHS UNDER G.S. 62-11 WHEN IGNORING AND FAILING TO APPLY THE EVIDENCE SUBMITTED BY PLAINTIFF/APPELLANT; IN VIOLATION OF THE FOLLOWING GENERAL STATUTE.

ASSIGNMENT OF ERROR NO. 11.

§62-136. Investigation of existing rates; changing unreasonable rates; certain refunds to be distributed to customers.

(a) Whenever the Commission, after a hearing had after reasonable notice upon its own motion or upon complaint of anyone directly interested, finds that the existing rates in effect and collected by any public utility are unjust, unreasonable, insufficient or discriminatory, or in violation of any provision of law, the Commission shall determine the just, reasonable, and sufficient and nondiscriminatory rates to be thereafter observed and in force, and shall fix the same by order.

Plaintiff/Appellant firmly believes that this statute may well form the genesis of a "smoking gun" in this injustice, due to the fact that G.S. 62-136 makes it MANDATORY "after" HEARING and determination of unjustifiable application of rate; that an ORDER issue from the Commission fixing the CORRECT RATE ACCORDING TO LAW ! This MANDATORY duty pursuant to G.S. 62-136 could well BANKRUPT every telephone carrier in the country, if forced to REFUND all currently collected CONTESTED telephone charges; the SUBSTANCE of this instant action. Since the PUC has INITIALLY APPROVED these "now" contested charges; it literally sits in judgement of its own error and has denied any effort to make public and expose its own complicity. This fact has only revealed itself as this case has developed.

Plaintiff/Appellant was not aware of this issue in the outset of his Complaint.

Again, a hearing is mandated to allow due process of law to work its course, and the denial of a Hearing to myself and concomitantly to Mr. Burge of a meaningful public hearing, clearly violates the explicit language of G.S. 62-136 which states: ""anyone directly interested."

The law entered into evidence by Plaintiff and supporting documentation of the General accounting office evidences that no statute was ever enacted by the U.S. Congress allowing the Respondents to charge the so called "Gore taxes". The lack of any regulations for the federal excise tax based upon a statute that was repealed, shows again that no law exists to collect said "rate charges, tariffs" etc., etc. found in G.S. 62-3 (24) as defined.

In spite of the fact that the federal excise was repealed it still would not apply to Plaintiff/Appellants. The Statute at Large eliminates the codified statute when there is a discrepancy and must set aside all codes. The following proves this point of law. Statutes at Large, March, 1897 To 1899, Vol. XXX, Fifty-Fifth Congress, Sess. II. Chapter 448. An Act To provide ways and means to meet war expenditures, and for other purposes.

Page 460 Telephone messages: It shall be the duty of every person, firm, or corporation owning or operating any telephone line or lines to make within the first fifteen days of each month a sworn statement to the collector of internal revenue in each of their respective districts , stating the number of messages or conversations transmitted over their respective lines during the preceding month for which a charge of fifteen cents or more was imposed, and for each of such messages or conversations the said, person, firm or corporation shall pay a tax of one percent: Provided, That only one payment of said tax shall be required, notwithstanding the lines of one or more persons, firms, or corporations shall be used for the transmission of each said messages or conversations.

The intent of Congress was very clear that no private man was required to pay the federal excise on telephones, only the "persons, firms and corporations," i.e. private utility companies, regardless of how the codified statutes are written. When an excise can no longer be passed on, the last holder to pay, it becomes a direct tax on that holder and is no longer an excise. Especially when the genesis of the tax is only on those items mentioned in the 1939 Statutes at Large.

Further confirmation comes from the Statutes at Large of the 1939 Income Tax, in Vol. 53 Part 1, approved February 10, 1939, in Public Act No.1 of the Sixty-Sixth Congress, that the subject of the excise is not applied to the private man because he deals in no articles or commodities as does the Private Public Utilities. Speech is what is being taxed and has been taxed when the Public Utilities started taking advantage and charging private people a excise tax on their speech, which is against all constitutional parameters, whether in time of war, national emergency or time of peace and against the Intent of Congress in the Statutes at Large. I would say that was "unjust enrichment" as described in the Statutes at Large Public Act

No. 1.

Page 112. SUBCHAPTER D-- UNJUST ENRICHMENT Sec 700. TAX ON NET INCOME FROM CERTAIN SOURCES.

Page 115. (j) As used in this section--

(1) The term "Federal excise tax" means a tax or exaction with respect to the sale, lease, manufacture, production, processing, ginning, importation, transportation, refining, recovery, or holding for sale or other disposition, of commodities or articles, provided for by any Federal statute, whether valid or invalid, if denominated a "tax" by such statute. A Federal excise tax shall be deemed to have been imposed with respect to an article if it was imposed with respect to (or with respect to the processing of) any commodity or other article, from which such article was processed.

(2) The term "date of termination of the Federal excise tax" means, in the case of a Federal excise tax held invalid by a decision of the Supreme Court, the date of such decision.

It is impossible for the use of a phone conversation to be classed as an article processed as a commodity by a private man, who, is not defined as the "person," "firm," or "corporation" to whom Congress stated the excise tax applies.

(12) ARGUMENT FOR DECLARATORY JUDGEMENT FROM THIS COURT IN THE MATTER OF THE N.C. RELAY AND 911 CHARGES.

ASSIGNMENT OF ERROR NO. 12

The Respondent Sprint has corrected it's errors in charging for the 911 and the N.C. relay charges, in regards to myself and has complied with Plaintiff's demands. The Respondent removed all charges back to the initiation of the Complaint in the form of a credit that offset the amount billed. The fact that they have stepped in to adjust these charges is a prima facie ADMISSION of their impropriety.

However, on good information and belief; the Respondents continue to "charge" these fees to other current users of their services; including the Intervener Burge. This "policy" of charging for fees on an indiscriminate basis is in clear violation of Administrative due process. There are users that are required to pay these charges, but both Complainant and intervenor do not fall into the definitional character of those required by statute. Therefore, Plaintiff and intervenor request a "declaratory" judgement" from this court, that these 911 and N.C. Relay charges are never to be re-instituted AGAIN, absent a specific authorization or agreement from the Users thereof to assent to these "optional" charges.

(13) ARGUMENT OF NO HEARING DENIED ANY TRANSCRIPTS OF RECORD TO CLARIFY THE RECORD.

ASSIGNMENT OF ERROR NO. 13

Complainant has no transcript or oral testimony to offer this Court since a hearing was denied that would have been "of" record and Plaintiff is therefore forced to rely on his pleadings and exhibits and Respondents/Appellees "non answers", as FILED. Plaintiff/Appellant can only supply the Docket sheet (Folder), and the Order of Dismissal to the supreme court which would satisfy Appellate Rule 9c (2) & (3), as he has no authority to certify the complete record as only the PUC can do that. Plaintiff requests the Public Utilities Commission supply the supreme court with the complete record of entries from the Complaint including Exhibits of Plaintiff/Appellant to the dismissal under certification as evidenced by the Folder Index, exhibit A, IF it does not have enough information from the settling of the Record by Appellants and Appellees.

CONCLUSION

Plaintiff/Appellant/s are seeking the return of all "Gore Taxes" paid from their inception. "Gore taxes" are Universal Service Fund, Carrier Line Charges, and Local number portability charges. And, also to uphold the constitutional parameters of the United States that declares that only Congress has the power to initiate these charges and not an agency.

Plaintiff/Appellant/s are seeking a return of all federal excise taxes collected from the repeal in July of 1965, and in doing so this court verifies that the House of Ways and Means repealed such excise taxes that are classed as unjust enrichment.

Plaintiff/Appellant/s are seeking the return of all State tax that is applied in the federal excise box ON THE PHONE BILL, as it is unconstitutional in that is based on speech time, not connection time, and, if an excise or sales tax it is a direct tax not to be borne by Plaintiff/Appellant/s, but by the owners of the Public Utilities as so stated in the fact that after a thorough computer search of all North Carolina Statutes not one single statute applies to the populace in general but only to the owners of the private utility companies.

Plaintiff/Appellant is seeking the nullification of all charges from July 1998 to present, such as late payment charges and other charges billed by the Sprint corporation but not paid by Plaintiff/Appellant. Since Respondent/Appellees have removed and is not billing the 911 and the N.C. Relay charges, that has been satisfied and those two charges are no longer at issue except that this Court is requested to issue a declaratory judgment that these charges are not to be re-instituted by any phone company.

Plaintiff/Appellant is seeking the costs as evidenced in the PUC's Order Serving Motion to Amend Complaint, attachment Invoice on last page.

Dated: ________Day of December, 1999

Albert Coombs Appellant/Complainant, separately and sui juris

Paul Burge *Intervenor/Complainant, separately and sui juris

*Subject to Grant by the Court of Motion to Join

CERTIFICATE OF SERVICE

Please take Notice that Albert Coombs placed in prepaid first class U.S. Mail certified R.R.R. a copy of the Record of Appeal, Brief of Complainant/Appellant, Motion to join Intervener, and Motion to Stay Phone Disconnect by Respondents, to the Supreme Court from PUC case #P-89 Sub 69, to the following parties:

North Carolina Utilities Commission Cert Mail # 086 370 941
JoAnne Sanford, Chairperson
430 N. Salisbury Street
Raleigh, North Carolina 27603

T. John Policastro Cert. Mail # 086 370 942
AT&T
150 Fayetteville Street Mall, Suite 1340
Raleigh, North Carolina 27601

Robert Carl Voight, Senior Attorney Cert. Mail # 086 370 943
Sprint Mid-Atlantic TeleCom Inc and Carolina Telephone and Telegraph Company
Legal Department- Mailstop NCKWFR0313
14111 Capital Blvd.
Wake Forest, North Carolina 27587

Dated this ______Day of December, 1999

Albert Coombs