II. THE DECISION PROPERLY EVALUATED THE RECORD, AND WE WILL MODIFY THE DECISION TO MAKE THIS CLEAR
The rehearing application asserts that the majority of the Decision's factual findings do not properly evaluate the record. These allegations are discussed below, in the order in which the Decision addresses these topics. In considering the various claims AT&T makes about our factual conclusions, it is important to bear in mind that we determined to assess one penalty against AT&T for all of its conduct relating to warm line service, which we found constituted a single "policy." (Decision at pp. 27, 29.) Because we imposed a single penalty, claims that the record on one particular aspect of AT&T's warm line policy should be re-evaluated do not demonstrate that AT&T's warm line policy, as a whole, is permissible, or that the imposition of a penalty is in error.
A. The Decision Properly Concluded That The "Technology [and] Facilities" Necessary to Provide Warm Line Service Are Present When Telephone Service is Discontinued, and That Section 2883 Does Not Allow Carriers to Provide Warm Line Service For Only A Limited Time.
The Decision first considered UCAN's allegation that AT&T failed to satisfy section 2883's requirements because when residential phone service was disconnected (either voluntarily or involuntarily), AT&T provided warm line service for approximately six months, but then cut the service off.5 The facts underlying this claim were not in dispute. (See Decision at p. 52 (Finding of Fact 6).) UCAN presented testimony stating that AT&T, from time to time, ran an automated program that terminated warm line service that had been in place for longer than 180 days. (Exhibit 1 at p. 7.) AT&T's Opening Brief, at page 1, states that AT&T "readily admits" that it was "failing to provide warm line service indefinitely...."
The Decision found that, in the case of disconnected service, the physical means existed to provide warm line service. The Decision further concluded that section 2883 imposed upon AT&T a "continuing obligation" to provide warm line service (as opposed to a temporary, 180-day, obligation) after billed service was disconnected. (Decision at p. 9.) The Decision made this finding as a matter of ordinary statutory construction, because section 2883 contains no language suggesting that its requirements apply only for a limited period of time. The Decision specifically noted that the statute only contained two provisions qualifying the requirement that carriers such as AT&T provide warm line service.6 The Decision stated that it was not legally permissible to curtail warm line service unless these qualifying provisions-which it considered to form a single exception to the statute's requirement-applied. Consistent with its approach to analyzing the issues presented in this case, the Decision stated that if AT&T claimed that its warm line policies were justified by "the unavailability of telephone numbers or other facilities[,]" then it would be making a "specific defense" for which AT&T had the burden of proof. (Decision at p. 9.)
The finding that AT&T terminated warm line service after 180 days is based on uncontested evidence in the record and the plain meaning of the statute-and AT&T does not claim that this aspect of the Decision is in error. Instead, the rehearing application challenges the analytic framework the Decision adopted to determine whether AT&T's policy of terminating warm line service after 180 days was permissible under section 2883. AT&T claims the Commission cannot make the company responsible for demonstrating that its policies were necessitated by numbering concerns, because doing so would allow UCAN to prove AT&T violated the statute without taking into account section 2883's "existing technology and facilities" language. (Rehg. App. at p. 4.) According to AT&T, UCAN was required to bear the burden of demonstrating that no numbering issues interfered with AT&T's ability to provide warm line service in order to make a case against AT&T. The rehearing application claims, at pages 5-6 (footnotes and internal quotation marks omitted), that, under the Decision's standard:
... all UCAN (and presumably any complainant) has to prove to carry the burden of proof for a statutory violation is that defendant is a telephone company, that there are existing and/or new residential telephone connections ... and that one or more residential telephone connections do not have warm dial tone.
This claim reads too much into some of the language the Decision used to describe the legal framework that supports its approach, and does not consider the analysis the Decision actually applied to the issues. The Decision explicitly considered whether or not existing technology and facilities allowed AT&T to provide warm line service as part of its analysis of whether AT&T contravened section 2883's requirements. The Decision found that there was no question that facilities existed to provide warm line service at the time service was disconnected. Finding of Fact 5, at page 52, states:
When voice telephone service has been discontinued voluntarily by the customer or involuntarily by the carrier, the necessary technology and facilities exist and are in place to provide 911 access.
The Decision further found that section 2883 does not allow carriers to limit the amount of time for which warm line service is provided. Rather, the only legitimate basis for curtailing warm line service was the statutory "exception" based on a lack of technology or facilities or the inability to provide service to billed service subscribers.7 These findings largely reflect the position advanced by UCAN. (UCAN's Opening Brief at pp. 33-34, citing UCAN's Exhibit 1 at p. 14.)
In addition, the Decision held that AT&T's blanket, state-wide restrictions on warm line service bore little relationship to numbering concerns that were transitory and limited to specific area codes. In this respect, the Decision also implicitly adopted UCAN's position. (E.g., Decision at p. 21; compare UCAN's Opening Brief at pp. 35, 37-38.) Thus, a review of the analysis the Decision undertook shows that the Decision did not make AT&T responsible for proving "an element of UCAN's claims" as the rehearing application alleges. (Rehg. App. at p. 4.) Rather, UCAN successfully presented evidence and argument that supported its claim: AT&T's policy violated the statute on its face, and the carrier attempted to justify that conduct with claims not directly related to the statute's provisions.
If the Decision's overall approach to evaluating the evidence is kept in mind, it becomes clear that the finding that AT&T should be penalized "unless" the company showed that the reason it gave to justify its conduct-numbering issues-allowed it to terminate warm line service after 180 days does not require AT&T to prove an element of UCAN's claim. (Decision at p. 9.) Further, as explained below at pages 38-45, we applied relevant evidentiary concepts relating to the burden of proof to conclude that AT&T was responsible for explaining why its conduct was allowable in this case, which involved a statute containing a general rule that warm line service be provided and a limited qualification allowing such service to be restricted under specific circumstances.
However, as discussed below at page 44, language in the Decision that limits the elements that need to be proven to make a claim under section 2883 should be clarified to make the Decision's description of its analytic approach consistent with the analysis that it actually undertook. In addition, the Decision's discussion of the statute's standards, its discussion of the burden of proof, and its discussion of the warm line requirements that apply when service is disconnected should all be modified to reflect the fact that the Decision's analysis reached several of its conclusions as a result of UCAN's analysis of this case. We will modify the Decision to achieve this result.
B. The Finding That a "Telephone Connection" Exists At New Residences Before AT&T Implements A Customer's Order For Billed Service Is Based on A Proper Evaluation of The Record.
After addressing AT&T's practice of discontinuing warm line service at residences where telephone service was previously provided, we addressed AT&T's policies at newly constructed residences. At these residences, AT&T did not provide any service-including warm line service-until a customer requested that billed service be activated and, presumably, opened an account.8
Section 2883 requires AT&T to "provide every... newly installed residential telephone connection with access to `911' emergency service regardless of whether an account has been established." However AT&T contended that section 2883 should be read to permit its practice of not providing warm line service at new residences. According to AT&T, section 2883 made the existence of a "telephone connection" a prerequisite to providing warm line service. AT&T further claimed that certain work it did not perform until after it received a request to activate billed service was an integral part of a "telephone connection[,]" meaning that AT&T could not provide warm line service at new residences because the requisite "telephone connection" never existed. (Decision at p. 11; AT&T's Opening Brief at pp. 4-5.) UCAN, on the other hand, claimed that, once wiring and other necessary equipment running to AT&T's "central office" became available "within the general vicinity of inside wiring in new residential units," then a telephone connection existed. (Decision at p. 11.)
To evaluate these claims, we reviewed both parties' testimony about the physical structure of the telephone network. (Decision at p. 11.) In general, AT&T and UCAN had presented similar testimony. The Decision described the most complicated scenario-a building or complex with several residences. In this case, each individual residence would have its own "outside plant infrastructure" (e.g., telephone wiring, jacks, etc.) and the infrastructure in each residence would connect to that residence's "Minimum Point of Entry." Further infrastructure would, in turn, connect all of the residences to a primary Minimum Point of Entry serving the entire building or complex. At this point, AT&T's network would connect to the infrastructure in the building. AT&T's facilities would consist of wiring and related infrastructure, collectively referred to as a "CT facility," running from the primary Minimum Point of Entry to the "main distribution frame" in an AT&T facility called a "central office." (See Decision at p. 12, fn. 10.)
The record showed that these elements (outside plant infrastructure, the Minimum Point of Entry, and the CT facility) were often put into place "even before the new residence has been fully constructed." (AT&T's Opening Brief at p. 4 (citing record material).) If these network elements were in place, then warm line service could be provided as long as a residence had a street address, that address was input into AT&T's computer systems, a telephone number was assigned, "central office work" (consisting of assigning and wiring central office equipment) was performed, and the telephone line was limited to ensure it only provided warm line service. (Decision at pp. 12, 15, discussing UCAN's Exhibit 1 and AT&T's Exhibit 6.) Relying on this description of the network's elements and the way it functioned, AT&T asserted that a "telephone connection" did not exist until a customer ordered billed service and AT&T performed certain steps in response to that request. (Decision at p. 16, citing AT&T's Opening Brief at p. 4.) Implicit in this claim is the fact that once a residence has billed service, warm line service is unnecessary.
We considered this contention in light of the language of section 2883, and found that the statute specifically requires that warm line service be provided "regardless of whether an account has been established." An interpretation of the statute that required a carrier to provide warm line service only after a customer has requested billed service and established an account would ignore an important requirement contained in the statute. (Decision at p. 14.) As a result, the Decision did not adopt AT&T's interpretation of the term "telephone connection."
In addition, we explained that AT&T's interpretation did not make sense in light of the statute's purposes or its language. Relying on a straightforward reading of the statute, we dismissed as a "tautology" the assertion that the statute should be interpreted so that an event that made warm line service unnecessary was found to be the event that triggered the requirement to provide warm line service. (Decision at p. 14.) The Decision found, instead, that section 2883 should be read to impose a requirement on AT&T. We stated that the statute required AT&T to "do something:" take the steps that are necessary to provide access to 911 emergency service at newly constructed residences. (Ibid.) With this language, we distinguished the operational steps that are necessary to provide service over a telephone connection from the elements that make up the telephone connection itself.9
Having conducted this analysis, we considered the network elements and operational steps described in the record to determine what elements comprised a "telephone connection" as that term is used in section 2883. In Findings of Fact 9 and 10, on page 53, we found:
9. If a local loop has been installed between the residential unit and AT&T's central office, and the local loop is connected to the residential unit's demarcation point [Minimum Point of Entry], the additional steps necessary to complete a telephone connection capable of voice transmission are relatively few and are automated. One manual activity, placing a jumper wire in the central office, generally takes a few minutes and is estimated to cost $18.99.
10. Once a CT facility is available and the residential unit is wired to the primary minimum point of entry (or secondary minimum point of entry, in the case of multiple dwelling units), a telephone connection exists.
These findings hold that some of the elements of a "telephone connection" described in AT&T's testimony were in fact steps that AT&T took to activate that connection and make it capable of "voice transmission [,]" i.e., carrying a telephone call. We disagreed with AT&T's contention that these steps should be considered to be part of the connection itself after considering both the nature of the work involved (mostly "automated" work involving "few" steps) and concluding that we would not read the statute in a way that rendered one of its requirements meaningless. The Decision specifically noted that our responsibility is to give effect to the Legislature's requirements. (Decision at p. 14.)
The rehearing application asserts the Decision's factual findings are in error for a number of reasons. Primarily, the rehearing application takes issue with the finding that the final steps AT&T takes in order to make a telephone connection capable of handling calls are not elements of the telephone connection itself. According to the rehearing application, the Decision agreed with AT&T's testimony that "all the physical piece parts" that are necessary to place a call must be in place for a telephone connection to exist. (Rehg. App. at p. 12.) AT&T relies on language on page 12 to assert that when the Decision concludes that a telephone connection can exist before AT&T takes the final steps to make the connection operational, it makes inconsistent holdings.
However, this claim misunderstands the Decision's findings. As noted above, the Decision explicitly distinguished the "remaining steps" that section 2883 requires AT&T to take to begin providing service from the "newly installed telephone connection" itself. (Decision at p. 15.) The language on page 12 that appears to list the final steps that AT&T takes to make a telephone connection operational as part of the telephone connection itself is incidental language that does not establish a holding. We will clarify this language to avoid any internal inconsistency,10 along with any other similar language.
The rehearing application further asserts that the Decision's discussion of AT&T's appeal on this issue is in error. First, the rehearing application claims that the Decision does not rely on the record. This claim, again, is based on a misunderstanding of the Decision. The rehearing application mistakenly asserts that we "agree[d ]" that the record showed the final steps necessary to make a telephone connection operational were part of the connection itself. (Rehg. App. at p. 13.) Based on this misunderstanding of the record, the rehearing application asserts that the record does not allow us to distinguish between the final steps taken to activate a telephone connection and the telephone connection itself. Because these allegations do not contend with the Decision's findings or its description of the record they do not demonstrate error.
Second, the rehearing application argues that the Decision cannot rely on the fact that AT&T's reading of the phrase "telephone connection" would "nullify any protection offered by the statute" to reject an interpretation finding that the final steps AT&T takes to activate a telephone connection are elements of the connection itself. The rehearing application asserts that the "circumstances that may cause all of the components to come into existence are irrelevant to the question of when the obligation attaches to provide warm dialtone." (Rehg. App. at p. 15.) This claim is confusing, but if the rehearing application is attempting to argue that the Commission may not evaluate the various network components and activities described in the parties' testimony to determine which of them form part of a telephone connection, then it provides no argument or authority to support this position. The fact that "AT&T has argued[] that [the warm line] obligation cannot, under the express terms of [section] 2883 [subd.] (a), attach before there is a telephone connection in existence" is not enough to establish that the Decision is in error. (Compare, Rehg. App. at p. 5.) The fact that a telephone connection must exist before the obligation to provide warm line service comes into force is not in dispute here. The question is: what elements make up a telephone connection? The Decision answered that question differently from the way AT&T's witnesses answered it, and simply noting that AT&T had provided a different answer during the course of the proceeding does not demonstrate error.
The rehearing application also asserts that it is error for the Decision to consider what the Legislature intended in adopting section 2883 as it determined what constituted a telephone connection. (Rehg. App. at p. 15.) According to AT&T, the statute clearly provides that a telephone connection must be established before the obligation to provide warm line service commences and the Decision "admits that [section] 2883 is unambiguous." (Rehg. App. at p. 15.) As discussed above, the fact that the statute unambiguously states that a telephone connection must exist before local exchange companies has little bearing on the question of what elements make up the telephone connection itself.
Further, when the Decision holds that it will not interpret the phrase "telephone connection" in a way that makes the statute's requirements superfluous, the Decision properly considers the underlying purpose of the statute, concluding that it does "not believe that the [L]egislature contemplated a meaningless act in its adoption of [section] 2883." The rehearing application's claim that this approach is "speculation" and "legal error" is unsupported, and does not state the law correctly. The first step in determining a statute's meaning is to look to its actual language, keeping the purposes of the statute in mind and giving significance to each of its words. (Pacific Gas and Electric Company v. Dept. of Water Resources (2003) 112 Cal.App.4th 477, 495; see also Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239; Decision at p. 14, citing Watson Land Co. v. Shell Oil (2005) 130 Cal.App.4th 69.) Thus, the Decision's finding that the statute can be understood without applying second-order techniques of statutory interpretation (such as consulting the legislative history) does not prevent us from considering the overall purpose of the statute when determining its requirements.
The Decision's interpretation is also based on section 2883's plain language. The Decision adopts a reading of section 2883, subdivision (a) that gives meaning to all of its words. AT&T's reading of the statute does not: AT&T specifically considers whether or not a customer has requested billed service (thereby indicating that it will establish an account) in determining whether or not a telephone connection exists. The Decision does not commit in legal error when it adopts a reading of section 2883 that takes account of both the statute's purpose and language. (Greyhound Lines, Inc. v. Public Utilities Com. (1968) 68 Cal.2d 406, 410-411.)
Further, the rehearing application alleges that "[n]othing in the statute supports" one of the Decision's results: AT&T is required to place jumper cables between the "telephone connection" and the telephone network. The rehearing application places significance on the fact that section 2883 does not specifically require AT&T to make these connections. (Rehg. App. at p. 15.) Similarly, at page 12, the rehearing complains that the Decision "require[es] AT&T to construct the missing network to provide warm dial tone." (Rehg. App. at p. 12.) These claims assume that the statute includes any physical aspect of the telephone network that is used to provide service within the ambit of a "telephone connection." However, the rehearing application provides no authority or argument to support this assumption. Contrary to AT&T's claims, the statute does not state that "the warm dial tone obligation is not triggered until all parts are existing." (Compare, Rehg. App. at p. 15.) Section 2883 states that every telephone connection must be provided with warm line service regardless of whether an account has been established. The Decision is not in error for failing to follow a requirement that is not contained in the language of the statute.
The rehearing application also asserts that the Decision's interpretation of section 2883's requirements is in error because the Decision concludes that AT&T does not have an obligation to provide warm line service at a new residence if it is unaware that a telephone connection "is ready to obtain emergency access." (Decision at p. 40.) The Decision concluded that AT&T had an obligation to provide warm line service once a telephone connection (as defined in the Decision existed), "if requested by the residential owner or occupant." (Decision at p. 56.) This conclusion properly reflects the fact that the elements of a "telephone connection" that are on the customer's side of the primary Minimum Point of Entry are the responsibility (and the property of) someone other than AT&T (e.g., the building owner). Without information from the building owner or occupant AT&T would not be able to determine if a telephone connection had been completely "installed[.]" (Cf., Pub. Util. Code, § 2883, subd. (a).)
The rehearing application asserts this approach illegally reads additional requirements into section 2883. (Rehg. App. at p. 14.) However, the Decision simply describes the Commission's view of the circumstances under which the statute's requirements could reasonably be found to attach to a carrier. We will modify the Decision to make its approach clear. The rehearing application's further claim-that because these is no evidence of such requests in the past it cannot be found to have violated section 2883-is unavailing. The fact that there is no record of anyone requesting a service that AT&T categorically refused to provide does not show that AT&T's policy of denying that service in all circumstances complies with section 2883.
C. The Decision Properly Found That AT&T Did Not Show That Its Warm Line Policy Had Any Direct Relationship to Shortages of Telephone Numbers.
1. The Decision's Conclusions on Numbering Issues Are Based on Proper Consideration of The Record.
After concluding that AT&T's policy of curtailing (or not providing) warm line service did not comply with section 2883's general requirements, the Decision next addressed AT&T's contention that its conduct was permissible because the statute contained "limitations" on its general requirements that justified AT&T's conduct. (E.g, AT&T's Opening Brief at pp. 2, 6.) We had previously found that the two "limitations" relied upon by AT&T created an exception to the statute's general requirements, which the Decision called "the `existing technology and facilities' exception[.]"11 (Decision at p. 6.) Those two provisions were the portion of section 2883, subdivision (a), which requires warm line service to be provided "to the extent that existing technology and facilities permit[,]" and section 2883, subdivision (e), which allows a local telephone company not to provide warm line service if doing so would preclude that company from providing billed service to its subscribers. The Decision determined to treat the claim that these provisions allowed AT&T to curtail (or not provide) warm line service as a defense raised by AT&T. With respect to this defense, we found that AT&T had the burden of proving that its warm line policies were permissible under the statute. (Decision at pp. 6, 17.)
When we considered AT&T's evidence on numbering issues, we found this material was too generic to support AT&T's claim. That is, the material relied upon by AT&T showed that the supply of available telephone numbers was being depleted, but AT&T did not present any further material showing that the way in which numbers were being depleted resulted in any specific, "existing" limitations in its technology and facilities, or meant that providing warm line service as the statue otherwise required would have precluded it from providing billed service to other subscribers. (E.g., Decision at p. 18 (discussing FCC material).) Put another way, AT&T only "identifie[d] some facts" showing that it was contending with numbering issues, but it failed to provide any material describing the "extent" to which these numbering issues affected its "technology or facilities[.]" (Ibid.; cf., Pub. Util. Code, § 2883, subd. (a).) Moreover, as a factual matter, the material presented by AT&T did not take into account the fact that the supply of available telephone numbers was also being replenished each time a new area code was established. (Ibid.)
We also noted that the record showed that when the supply of available telephone numbers became restricted, this occurred only in certain specific area codes, for a specific period of time. (Compare, Decision at p. 18, Reply Brief of Pacific Bell Telephone Company ("AT&T's Reply Brief") at pp. 11, 15.) That is, limitations in the availability of telephone numbers did not occur all at once, nor were they state-wide. We noted the disparity between AT&T's policy (which curtailed warm line service on a permanent, state-wide, basis) and the nature of the numbering shortages AT&T identified (which were transitory and area-code specific). (Decision at p. 21.) The Decision found that the record suggested that AT&T had adopted its warm line policy "without the analysis of facilities and equipment availability, number availability, or the needs of customers in the specific areas affected." (Decision at pp. 29-30.)
These findings were based on our careful evaluation of the material in the record describing numbering issues, and we described that evaluation in the Decision. We considered our past decisions approving area code splits and overlays, and found that, in this context, this material was "equivocal" because it provided no definitive support for AT&T's position. (Decision at p. 52.) Our decisions showed that there was a significant, and growing, demand for numbers in California, which corroborated AT&T's general claim that the supply of available telephone numbers was being depleted. But this material also showed that area codes were being split, so new numbers were being provided when they were needed. This fact weighed against the inference that actual, existing shortages of numbers (or well-founded projections of future shortages) required warm line service to be restricted on a permanent state-wide basis. (Decision at p. 18.)
Similarly, the Decision found that AT&T failed to explain why a report from the North American Numbering Plan Administrator ("NANPA") showed that technology and facilities did not permit AT&T to provide warm line service after 180 days or at any newly constructed residences. This report, the June 2006 Central Office Code Assignment Activity Report, is referred to here as the "2006 Activity Report." It stated that over two-thirds of California's area codes were "exhausted" or "in jeopardy[.]" (Decision at p. 18.) However, AT&T did not explain what the technical terms "exhausted" and "in jeopardy" meant in specific terms, i.e., why the existence of those conditions resulted in a lack of technology or facilities that did not permit AT&T to provide warm line service to the full extent required by the statute, or precluded it from providing service to subscribers of billed service. The Decision also noted that the 2006 Activity Report analyzed numbering issues on an area-code-by-area-code basis, and AT&T did not explain why state-wide policies were justified by numbering concerns in a specific group of area codes that were "exhausted" or in "jeopardy."12 (Ibid.)
The Decision also analyzed two documents in the record authored by AT&T. We found an internal document produced by AT&T in 1997 not to be persuasive, because it merely stated that "telephone numbers could be depleted" (emphasis added), but did not provide any specifics on the unavailability of numbers, or state when, or even how quickly, any depletion of numbers would, in fact, occur. (Decision at p. 19. citing Exhibit 1, Attachment TLM-9.) We found another document, a letter sent to Commission staff on March 2, 1998 ("March 1998 Letter"), to be similarly unpersuasive. (See Exhibit 5, Attachment MJ-8.) The letter suggested that AT&T maintained a separate pool of numbers "assigned specifically to QDT" to provide warm line service, which did not support AT&T's claim that concerns about the overall supply of numbers required it to adopt its warm line policy.13 We also found that the March 1998 Letter suggested that AT&T's warm line policy was developed as a cost-saving measure, and that AT&T held the mistaken view that section 2883's requirements were "interim[.]" (Decision at p. 43.)
2. The Decision Appropriately Considered the Date of Documents When it Weighed the Evidence.
The rehearing application alleges that the Decision "was arbitrary and capricious in rejecting AT&T's evidence of number shortages on the ground such evidence was dated...." (Rehg. App. at p. 17.) The rehearing application contends that its internal 1997 document and FCC material from 1999 are relevant because they describe numbering issues during the time period covered by UCAN's complaint. This claim misunderstands how the Decision evaluated this material from the record. As discussed above, the Decision did not simply rely on the age of AT&T's material when it found that AT&T failed to show that numbering concerns produced the conditions that would allow the company to avoid complying with section 2883's requirements.
The Decision only looked to the age of AT&T's material as a factor that indicated what weight this material should be given. Specifically, we found that the FCC order relied upon by AT&T was issued in 1999 and stated concerns about the speed with which area codes were running out of numbers in 1999, but that the FCC subsequently had adopted measures to deal with these concerns. The Decision further found that "AT&T provides no more recent information on how successful, if at all, these remedial measures proved to be." (Decision at p. 19.) Thus we determined that the FCC material was not persuasive because it did not show that actual number shortages had created "existing" limitations on technology or facilities at any specific point during the time period covered by the complaint.
Similarly, the Decision noted that the statement that "telephone numbers could be depleted" in an internal AT&T document written in 1997 did not give an indication (in quantitative terms) of how serious this concern was, or when any depletion would occur. (Decision at p. 19.) It was not simply the 1997 date of AT&T's internal document that caused us to find the material unpersuasive, it was the fact that the document raised only general concerns about the future and no more recent material was provided to show that those concerns in fact did arise, or that at some point those concerns were expected to rise to the level of an "existing" limitation on technology or facilities. In fact, AT&T's reliance on a single 1997 internal document that states only generic concerns about numbering-without linking those concerns to "existing" (or legitimately projected) limitations in technology or facilities-supports the inference that AT&T's warm line policy was not adopted in good faith. (See below at pp. 58-59.)
The rehearing application also asserts that the Decision improperly failed to take account of the time frame of a report it analyzed, the 2006 NRUF and NPA Exhaust Analysis ("2006 NRUF Analysis"). That report is contained in Exhibit A to UCAN's Request for Judicial Notice of Report, September 15, 2006, and uses data on the availability of telephone numbers to predict a range of times when area codes would "exhaust." This range spanned from the fourth quarter of 2008 to the second quarter of 2025, with the Los Angeles 310 area code being exhausted at that time. (Decision at p. 20.). The rehearing application claims the Decision improperly relied on this information because it was forward looking and not relevant to the time period covered by the complaint. (Rehg. App. at p. 18.)
The rehearing application's claims do not correctly describe the role the 2006 NRUF Analysis played in our analysis of the record. When we made holdings based on the 2006 NRUF Analysis we relied on the nature of the analysis contained in that document, and the fact that the 2006 NRUF Analysis was inconsistent with the inferences that AT&T sought to derive from the 2006 Activity Report, which was authored by the NANPA, the same body that produced the 2006 NRUF Analysis. Specifically, we looked at the type of information the NANPA produced to support our finding that numbering shortages were area-code specific, and that different area codes had significantly different amounts of numbers available for assignment.14 (Decision at p. 20.) We further noted that UCAN had provided this material for the purpose of rebutting AT&T's claim that other material produced by the NANPA showed that numbering shortages were pervasive in California. (Compare Decision at p. 18 (20 of 27 area codes exhausted or in jeopardy) with Decision at p. 20 (most area codes do not face imminent exhaustion).) We concluded that this rebuttal of the conclusions AT&T drew from the 2006 Activity report was successful.
Thus the rehearing application is incorrect to claim that the Decision committed error when it considered the 2006 NRUF Analysis, which AT&T asserts "says absolutely nothing about number availability" during the time frame of the complaint.15 The Decision places much less emphasis on the time period addressed by materials in the record than AT&T claims. To make this clear we will modify the Decision so it relies on the 2006 NRUF Analysis' projection that most California area codes would not begin to exhaust their supply of available numbers in the near term for the purpose that UCAN requested: to show that AT&T's position does not necessarily reflect the views of the NANPA.
3. The Decision Did Not Mistake the Significance of the Commission's Own Numbering Decisions or of the Two NANPA Reports in the Record.
The rehearing application's next claim refers to fourteen Commission decisions implementing area code splits or overlays. AT&T asserts the Commission was "arbitrary and capricious... to have ordered all of these area code splits and the recent overlay because of the shortage of available numbers and then conclude that there is no constraint caused by limited number resources." (Rehg. App. at p. 20.)
This claim, too, mischaracterizes the Decision's findings. The Decision states, at pages 20-21:
Blanket, statewide policies of 180-day termination and failing to connect new residential units constitute arbitrary measures that bear no reasonable relationship to actual numbering projections in specific area codes....
This does not amount to a finding that there is "no constraint caused by limited number resources." (Rehg. App. at p. 20.) As discussed above, the Decision's findings are based on AT&T's inability to demonstrate, using the material in the record, that numbering shortages limited the "extent" to which its "technology or facilities" allowed it to provide warm line service or that numbering shortages "preclude[d]" it from providing service to subscribers of billed service. (Cf., Pub. Util. Code, § 2883, subd. (a).)
The rehearing application also claims that the Decision's analysis of the 2006 Activity Report and the 2006 NRUF Analysis was inconsistent. According to AT&T, the Decision "relied on the 2006 NRUF Report but rejects the evidence in the 2006 [Activity] Report." (Rehg. App. at p. 21.) AT&T asserts that this amounts to legal error because it is "arbitrary" to rely on one of these documents and not the other. (Ibid.) As explained above, we considered both reports and concluded that the existence of the 2006 NRUF Analysis showed that little weight should be placed on the inferences AT&T derived from the 2006 Activity Report because those inferences did not necessarily reflect the position of the NANPA. (Decision at p. 18.) This was a considered analysis and it was explained in the Decision; it does not represent "arbitrary" action.
Similarly, when we concluded that AT&T had failed to show why the situation described in the 2006 Activity Report affected the "extent" to which its "facilities or technology" allowed it to offer warm line service (or precluded it from providing billed service), we did not arbitrarily avoid considering the 2006 Activity Report.16 Instead, we found that AT&T failed to show how the information in that report was germane to the issue at hand. The rehearing application provides no authority for the proposition that it is legal error for us to reach this conclusion.
The rehearing application is also incorrect when it claims the Decision placed too much weight on the 2006 NRUF Analysis.17 As explained above, the Decision found that the 2006 NRUF Analysis showed that data about numbering shortages could be used to develop well-founded projections about when a specific area code might run out of numbers, and showed that the claims AT&T was making about the severity of numbering shortages based on the 2006 Activity Report were not entitled to great weight. The information contained in the 2006 NRUF Report was, therefore, not "irrelevant to this proceeding" as the rehearing application claims. (Rehg. App. at p. 22.)
The rehearing application's other contentions about the 2006 NRUF Report either seek to re-argue the evidence, or make semantic claims. The rehearing application discusses the 951 area code which was established in 2003. According to AT&T, the fact that an area code split occurred in 2003 demonstrates that numbering shortages existed during the period covered by the complaint. (Ibid.) Yet the Decision clearly explained that inconclusive18 arguments based on generic facts such as this were not sufficient to demonstrate that AT&T's network precluded it from providing warm line service as otherwise required by section 2883.
The rehearing application also asserts that the Decision unfairly disagreed with AT&T's evaluation of the 2006 Activity Report because of a lack of "foundation," but did not require UCAN to provide any "foundation" for the 2006 NRUF Report. This claim misunderstands the point the Decision made: AT&T showed that some area codes faced "exhaust" or were "in jeopardy," but did not explain how those conditions precluded it from providing service to subscribers or billed service, or why those conditions limited the extent to which it could provide warm line service. However, the technical term "foundation" is not helpful to the Decision's discussion, and we will modify the Decision to clarify this point.
Additionally, the rehearing application asserts that we engaged in plagiarism because the Decision adopted UCAN's analysis without citation to UCAN's pleadings. AT&T asserts this lack of citation is an attempt to make the Decision's description of the report "an independent analysis, when in fact it is copied from the reply brief." (Rehg. App. at p. 21.) This contention is unhelpful. Our decisions often adopt the analysis prepared by parties when they find it to be convincing. However, since this issue is of concern to AT&T, we clarify this language.
The rehearing application also incorrectly claims that the Decision copied inaccurate information from UCAN. The Decision stated that that "most area codes hav[e] five to nine years before projected exhaustion." (Decision at p. 20.) This statement is too concise, but it does not misrepresent the underlying data. The information in the 2006 NRUF Report can be used to place area codes into three categories: those projected to exhaust in four years or less, those projected to exhaust in five to nine years, and those projected to exhaust in ten years or more. The largest category was the five-to-nine-year category. A smaller number of area codes fell into the less-than-five-year category and the ten-year-plus category. The rehearing application asserts that the Decision is inaccurate because only 38% of area codes fell into the five-to-nine-year category and 38% is not "most." (Rehg. App. at pp. 20-21.) We believe our modifications of this language will address AT&T's concerns, but this semantic claim is not constructive. The Decision's main point is correct: UCAN showed that AT&T's claim that numbering resources were scarce in 20 of 27 area codes did not necessarily reflect the position of the NANPA. (Decision at p. 20.)
4. The Decision Properly Evaluated The Claims Made in AT&T's Appeal of the POD.
The rehearing application next asserts that the Decision's discussion of AT&T's appeal of the POD's findings on numbering questions is in error for three reasons. First, AT&T asserts that the Decision's discussion of the March 1998 Letter did not address the claims AT&T sought to make when it relied on that letter. The March 1998 Letter had been written because Commission staff were seeking to understand why the carrier gave a new number to residences when it provided warm line service after a disconnection. The March 1998 Letter gave a general description of how numbers were assigned to warm line service. It stated that AT&T used numbers "assigned specifically to QDT" to provide warm line service so it did not have to "re-process or recondition the pre-existing telephone number...." (Exhibit 1, Attachment TLM-9, Exhibit 5, Attachment MJ-8.) It further stated that a new automated process would-for the first time-allow AT&T to easily and cheaply terminate warm line service after it had been in place for a period of time, and place the numbers from the terminated warm line service back in a pool, to be re-used. The March 1998 Letter stated this process would provide cost savings and that the purpose of warm line service was to provide "an interim method to access emergency services." (Ibid.)
The rehearing application asserts that the March 1998 Letter was significant because it showed that AT&T had acted "reasonably and forthrightly with the Commission" and this conduct was "relevant when considering whether a penalty is an appropriate sanction." (Rehg. App. at p. 23.) However, it was not error for us to reach a different conclusion. We considered all the arguments made concerning the March 1998 Letter and explained our view of the letter's significance.19 We noted that the March 1998 Letter stated AT&T was only required to provide "interim" warm line service-giving the impression that AT&T's practices complied with section 2883. (Decision at pp. 42-44.) Additionally, our staff's concern was not the requirements of section 2883: staff wanted to find out why the carrier changed the phone number at a residence when that residence began to receive warm line service. Thus, when considered as a whole, the record does not establish that the March 1998 Letter could have "informed Commission staff of its practice" as AT&T claims, or that AT&T acted "reasonably and forthrightly[.]" (Compare Rehg. App. at p. 22.)
We also directly disagreed with AT&T's underlying claim-that the March 1998 Letter was relevant to the question of whether AT&T should be penalized. We held: "AT&T has not shown how staff's knowledge of the carrier's practice can be construed as the Commission's own intent to approve of the practice and, accordingly, curtail its regulatory role." (Decision at p. 42.) And we further specifically rejected "the argument that, by communicating the 180-day disconnect policy to Commission staff, the policy thereby became anointed as reasonable." (Decision at p. 43.) Thus the question of the significance of the March 1998 letter is not material, because it does not effect the Decision's ultimate conclusion on this topic.
Second, the rehearing application asserts the fact that numerous area codes, across the state, were split in response to numbering concerns was sufficient to establish that "numbering shortages were statewide." (Rehg. App. at p. 23.) Again, this is a claim about the weight of the evidence and does not demonstrate legal error. In this case, the record shows that to the extent that numbering shortages existed they were transitory (i.e., they were ultimately resolved by splitting area codes) and localized (i.e., they were specific to particular area codes). There is no reason why it is legal error for us to infer from this record that a California-wide numbering shortage did not exist during the period covered by this complaint. The rehearing application's attempt to aggregate all of the numbering shortages that developed and were resolved during the complaint period into a single "statewide" numbering shortage is an interpretation of the record that we declined to adopt. It is not legal error for us to evaluate the record and make findings different from the findings advanced by AT&T. And in this case, the Decision's findings represent the better view of the evidence: there was a disparity between AT&T's blanket state-wide policy of curtailing warm line service and the transitory and localized numbering shortages AT&T claimed were the cause of that policy.
Third, the rehearing application argues that the Decision erred in finding a statutory violation based on the fact that AT&T did not tailor its policy to the number supply in individual area codes. The rehearing application claims that in order to reach this conclusion there must be "evidence in the record" showing that "such tailoring was possible." (Rehg. App. at p. 23.) This claim does not take into account what the evidence did show: that AT&T adopted a blanket, statewide policy to restrict warm line service in response to alleged, unverified concerns about the effect of transitory, geographically discreet numbering concerns-in the face of a statute requiring AT&T to provide warm line service "to the extent" permitted by AT&T's technology and facilities.20 (Pub. Util. Code, § 2883, subd. (a).) No material in the record specifically shows that AT&T considered the possibility of adopting a more focused or limited warm line policy. Rather, it appears that AT&T's policy was either adopted to address simply what "could" happen (without an attempt to specifically identify how numbering would affect AT&T's ability to provide service), or because new technology allowed AT&T to curtain warm line service for the first time and the company wanted to take advantage of the associated cost savings. (Exhibit 1, Attachment TLM-9; Exhibit 5, Attachment MJ-8.)
D. The Decision Correctly Concluded That AT&T Improperly Provided Either No Notice Or Inaccurate Notice of its Warm Line Service.
After addressing AT&T's obligations under section 2883, subdivision (a), we considered UCAN's allegation that AT&T had failed to provide notice of its warm line service, as required by law. Section 2883, subdivision (c) requires that subscribers of local exchange service be informed about the existence of the warm line service mandated by subdivision (a). The statute states that we are to establish the manner in which carriers provide this notice information, and that we are to require the carriers to provide notice. (Pub. Util. Code, § 2883, subd. (c).) UCAN also asserted that carriers are subject to a basic minimum requirement to provide sufficient information about the services they provide, so that consumers can make informed decisions when choosing whether or not to obtain certain services or when choosing between services.
AT&T contended that it was not responsible for meeting subdivision (c)'s requirements because we had not yet required a notice to be provided. (AT&T's Opening Brief of AT&T at p. 14.) Subsequently, AT&T also asserted that its tariffs provided adequate notice of its warm line policies. (Appeal of POD, November 9, 2006, at p. 22.) UCAN asserted that Commission precedent establishes that tariffs are not sufficient to provide the notice to customers, and that AT&T's claims were contradicted by its prior conduct which assumed that it could notify customers about warm line service without direct supervision from the Commission. (Response to Appeal of POD, December 3, 20007, at pp. 17-18.)
The Decision addressed the positions of the parties, and resolved this issue by relying on general principles relating to customer notice that we determined were most relevant here. The Decision explained that we had previously articulated notice requirements that bore directly on the question of what sort of notice AT&T was obligated to provide, and that these requirements had been enacted into law by the Legislature. At a minimum, carriers must give telephone customers enough information to allow those customers to make informed choices about the different types of service available to them. (Pub Util. Code, § 2896, subd. (a); UCAN v. Pacific Bell [D.01-09-058] (2001) __ Cal.P.U.C.3d __, at p. 17 (slip op.).)21
We explained in detail the general notice standards that we, and the Legislature, have made applicable to telephone utilities. Section 2896, subdivision (a) requires carriers to provide customers with information about their services, including "service options, pricing, and terms and conditions of service." This statute requires information to be provided so customers can make informed choices between different types of service and between carriers. In UCAN v. Pacific Bell [D.01-09-058], supra, we found that section 2896 had enacted into law an already-established "minimum regulatory standard" requiring companies such as AT&T "to provide consumers with the information necessary to make informed choices among services and service providers." Finally, we pointed out the importance of this requirement. "This minimum standard reflects traditional regulatory concerns for consumer protection and also emerging concerns about fair competition." (Id. at p. 17 (slip op.).)
Turning to the facts of this case, the Decision explained why customers needed accurate information about warm line service. For example, we pointed out that consumers in financial hardship and facing disconnection could only make an informed choice about which bills to pay if they received accurate information about warm line service. Similarly, those customers who were deciding whether or not to cancel land line service in favor of wireless or another service "should be able to readily obtain accurate information about the continuation of 911 services after termination." (Decision at p. 23.)
We concluded that, read in conjunction with section 2883, subdivision (c), the principles codified in section 2896, subdivision (a), made clear the minimum obligation for local exchange carriers regarding warm line service. Carriers must provide customers with sufficient information to make an informed choice, including information about "the availability of the services described in [section 2883] subdivision (a)." (Decision at p. 23; compare Pub. Util. Code, § 2896, subd. (a) with § 2883, subd. (c).) Because AT&T was under a minimum obligation that both this Commission and the Legislature had articulated, the fact that we had not separately reiterated what was required under section 2883, subdivision (c), did not prevent us from concluding that AT&T had contravened the notice requirements relating to warm line service. The Decision noted that under section 2883, subdivision (c) we were not responsible for establishing the actual information that would be provided to subscribers. We were only to determine the manner of notice that carriers would provide, and require that such notice be provided. As a result, lack of Commission action did not affect the basic requirement that carriers were under an obligation to follow. (Decision at p. 23.)
The Decision further found that the information provided by AT&T was not legally adequate. We examined the final Disconnection Notice that AT&T sent to customers whose service is being disconnected for nonpayment. That notice states that "service (except access to 911 service where facilities and operating conditions permit) will be permanently disconnected." (Decision at p. 22.) We also considered the fact that no notice about warm line service is given to subscribers who terminate service voluntarily, or to subscribers who maintain their service. Finally, we considered provisions in AT&T's tariff that describe warm line service, and limit the offering with the qualifying statement that warm line service is "provided at no charge where facilities and operating conditions permit." (Decision at p. 24.)
We found that the information provided by AT&T: (i) failed to inform consumers of the availability of warm line service, and (ii) was incorrect. Without explicitly mentioning the lack of information provided to most customers, the Decision found that AT&T provided only parenthetical information to those being disconnected for failure to pay their bills, and that this information was inaccurate. The Decision held that this type and amount of information "fail[ed] to affirmatively provide accurate 911 emergency access information...." (Decision at p. 24.) The Decision also found that the information contained in AT&T's tariffs was inaccurate. The Decision noted that AT&T did not specify that it had placed time limits on warm line service in its tariff and that the restriction AT&T placed on warm line service ("where facilities and operating conditions permit[]") sought to expand AT&T's ability to limit warm line service beyond what the statute allowed. (Decision at p. 24.) However, the Decision did not explicitly evaluate whether or not AT&T's tariffs constituted notice of its warm line service.
The rehearing application asserts that this approach is in error for two reasons. First, it asserts that the Decision essentially concludes that AT&T contravened section 2896, subdivision (a), even though the complaint did not allege a violation of that statute. According to AT&T, constitutional principles of due process prevent the Commission from concluding that AT&T had contravened section 2896, subdivision (a), unless UCAN specifically alleged a violation of this code section. (Rehg. App. at p. 25.) This claim does not accurately describe the Decision's holdings. The Decision found that we had articulated a basic minimum standard that applied to carriers, no matter what the circumstances, even though we had not established further, specific, requirements under section 2883, subdivision (c). We also found that the Legislature had codified this basic minimum standard in section 2896, subdivision (a). To the extent the rehearing asserts that principles of due process prevent us from considering the requirements of section 2896, subdivision (a), in this proceeding, those claims will be discussed below, at pages 67-68, with AT&T's other legal claims involving due process.
Second, the rehearing application claims the Decision did not properly support its conclusion that AT&T had failed to provide proper notice to its customers. AT&T begins this argument by claiming that the Decision improperly finds AT&T's notices to be inaccurate "without relying on any evidence from UCAN." (Rehg. App. at p. 25.) This claim, which is not accompanied by any analysis or authority, fails to demonstrate error. The Decision relied on the text of the notice AT&T sent by letter and on AT&T's tariff. These materials were properly made part of the record and the identity of the party that placed them in the record is not relevant, especially when there is no dispute as to their authenticity.22 Moreover, as discussed above, UCAN's legal arguments on the requirements of the "minimum regulatory standard" for disclosure formed a part of the Decision's analysis of this issue.
The rehearing application next argues that its tariff "constitutes legal notice" of its warm line service because customers are bound by tariffs "notwithstanding their actual knowledge." (Rehg. App. at p. 26.) However, the internal logic of this assertion is flawed. The fact that customers are generally bound by a tariff provision "notwithstanding their actual knowledge[]" does not show that "tariffed information about warm dial tone constitutes" a legally sufficient notice to customers. (Rehg. App. at p. 26.) Specifically, the question here is whether AT&T gave its subscribers enough information about warm line service to allow those subscribers to make informed choices about their service. The fact that tariffs are binding "notwithstanding" a customer's actual knowledge does not support the conclusion that customers had the information they needed to make informed choices. Indeed, the rehearing application only describes the notice given as "legal notice[,]" effectively admitting that no actual notice was provided. (Rehg. App. at p. 26.)
Third, the rehearing application argues that we failed to take into account certain facts when we found that AT&T's disconnection notice did not provide customers with the "basic minimum of statutory information" about warm line service. We found that AT&T provided no notice of its warm line policy unless a customer was being disconnected for failure to pay. Further, we found that the notice provided under those circumstances was not clear, and, moreover was inaccurate, because it did not describe the 180-day limit AT&T placed on warm line service. (Decision at p. 24.) The rehearing application challenges the claim that its disconnection notice was inaccurate. According to AT&T, it would have been incorrect for a notice to state that warm line service was available for only 180 days, because "some customers could have warm dial tone for less than or longer than 180 days." (Rehg. App. at p. 26.)
This contention does not have merit. The notice AT&T provided was inaccurate because it failed to state that warm line service would be provided only for a limited period of time-not because it failed to indicate the precise length of that time. The statement that warm line service would be provided "where facilities and operating conditions permit" does not convey the idea that in each and every case AT&T would provide access to 911 service only for approximately six months before the service would be disconnected. (See Decision at p. 22.) For example, the language of AT&T's notice can easily be read to imply that warm line service could be interrupted, and then resume again once "conditions permit[.]" Similarly, the notice could be read to imply that some warm line service could be affected by "facilities and operating conditions" while other service would not be affected. In addition, the rehearing application's claim does not contend with the fact that AT&T provided no information about the availability of warm line service to customers who disconnected voluntarily. In that case, there was no question that AT&T failed to inform customers of the availability of warm line service.
Additionally, while AT&T claims that the phrase "where facilities and operating conditions permit" essentially tracks the statute, this language, in fact, reinterprets the statute's requirements-and does so incorrectly. (Compare, Rehg. App. at p. 27, Decision at p. 24.) The statute requires AT&T to provide warm line service "to the extent" that "existing technology and facilities" allow. AT&T did not copy this language into its notice but instead stated a less stringent requirement ("where" instead of "to the extent that") that gave the company more opportunities to restrict warm line service than the statute does (excluding "existing" and including "operating facilities"). As a result, AT&T's notice discloses to customers neither what the statute requires AT&T to do nor what service AT&T actually provided. Given these defects in AT&T's discontinuation notice, the Decision correctly found that the notice did not inform customers of the service options that were available to them. Disputes about the specific length of time that elapses before warm line service is terminated are not material to this finding.23
AT&T similarly contends that the Decision improperly found that the company's tariff was inaccurate. The rehearing application contends that the condition in its tariff "where faculties and operating conditions permit" is very similar to section 2883, subdivision (a)'s language stating warm line service is to be provided "to the extent facilities and conditions permit...." (Rehg. App. at p. 27.) As discussed above, however, the statute allows carriers to restrict warm line service only under limited conditions while AT&T's tariff language gives the carrier almost unfettered discretion to restrict warm line service, especially because it includes "operating conditions" as one of the reasons why such service would be restricted.
The rehearing application also asserts that the Decision does not have a sufficient basis for its conclusion that AT&T's conduct amounted to willful misconduct. As discussed below at pages 58-59, this language will be modified and this claim need not be addressed. We will further modify the Decision to more clearly describe the relationship between the basics minimum notice requirement that we, and the Legislature, have imposed on carriers and the specific requirements of section 2883, subdivision (c), since the rehearing application, in places, suggests this discussion is not sufficiently clear.
5 The Decision considered two separate fact patterns: when service was disconnected and the former customer moved out, and when service was disconnected and the former customer remained. It found these fact patterns were essentially the same for the purposes of its analysis. (Decision at p. 10.)
6 Section 2883, subdivision (a), states that the statute's requirements apply "to the extent permitted by existing technology or facilities...." In subdivision (e), the statute provides an exception to its requirements, stating:
Nothing in this section shall require a local telephone corporation to provide "911" access pursuant to this section if doing so would preclude providing service to subscribers of residential telephone service.
7 These holdings appeared in the POD's discussion of warm line service at residences where service was disconnected, and were restated more forcefully in the analysis of AT&T's appeal of that portion of the POD. (Decision at p. 44.) There, the Decision stated:
Absent facilities or numbering constraints in specific areas, we reject the notion (and we believe the legislature would agree) that emergency access was meant to be available on an interim basis.
8 Again, the principle facts are not in dispute. UCAN's testimony states that AT&T does not provide warm line service at newly constructed residences until an account has been established and AT&T "readily admits" that it does not provide always service at, newly constructed residences where "no one has yet activated service." (Exhibit 1, at pp. 18-19; AT&T Opening Brief, at p. 1.)
9 This distinction properly construes the statute. Section 2883 requires carriers to provide warm line service once a telephone connection exists. As discussed in the main text above, if the materials and actions that are undertaken in order to provide service are confused with the elements that make up a telephone connection itself then the statue will not require anything, which is an illogical result.
10 The rehearing application cites Cal. Portland Cement Co. v. Public Utilities Com. (1957) 49 Cal.2d 171 as authority for the proposition that inconsistencies in a decision result in legal error, but this case is not on point. (Rehg. App. at p. 11.) Some of the Decision's incidental language may not be clear, and, as a result, could be subjected to an interpretation that produced an inconsistency with the Decision's main holdings. However, this lack of clarity will be corrected by modification and will not become part of the final order. Nor does this language result in a fundamental contradiction between two of the Decision's main holdings, as was the case in Cal. Portland Cement Co. v. Public Utilities Com., supra. Other authority cited by the rehearing application stands for the proposition that an administrative decision (especially by a federal agency) should explain its reasoning. More specific and relevant decisions by the California Supreme Court, describes the statutory requirement that specifically applies to this Commission. Under section 1705, we must make separately stated findings of fact and conclusions of law so that a decision "afford[s] a rational basis for judicial review, and assist[s] the reviewing court to ascertain the principles relied upon by the [C]ommission...." (Cal. Manufacturers Ass'n v. Public Utilities Com. (1979) 24 Cal.3d 251, 258-259; see also, Greyhound Lines, Inc. v. Public Utilities Com. (1967) 65 Cal.2d 811, 813.) The rehearing application does not explain why AT&T contends that the Decision fails to meet this standard. (Rehg. App. at p. 12.)
11 Treating these provisions as an exception responded to the statutory requirement that warm line service be provided "to the extent permitted" by a local exchange carrier's facilities. This approach also allowed us to group the questions presented by AT&T's numbering claims into a single issue, and to analyze that issue in a way that acknowledged that AT&T was both the party advancing this claim and the party with the necessary information.
12 We contrasted the material in the June 2006 Central Office Code Assignment Activity Report with another NANPA report introduced by UCAN, the 2006 NRUF and NPA Exhaust Analysis ("2006 NRUF Analysis"). UCAN asserted this report placed AT&T's claims in context. The 2006 NRUF Analysis showed that NANPA also projected when numbering shortages in California area codes would occur, and that in most area codes NANPA was not projecting an imminent shortage. As a result we found that state-wide warm line policies "are not rationally related to [their] stated purpose of proactively managing numbering resources to avoid shortages." (Decision at p. 20.)
13 "QDT" refers to "quick dial tone" which is a synonym for warm line service. (See fn. 2, above.)
14 We held that a decision not to provide the statutorily-required warm line service "would have to be closely tailored to the risk of exhaustion in [an] area code." (Decision at p. 20.) By comparing the 2006 NRUF Analysis and the 2006 Activity Report we were able to see that AT&T had not show this correlation existed between its policies and the material it relied upon.
15 The rehearing application uses the claim that the Decision dismissed AT&T's material solely because of its age to reiterate its view of the evidence on numbering issues. The rehearing application first restates some of the findings made in AT&T's 1997 internal document: that placing a time limit on warm line service could prevent "new install QDT (IQDT) service order fallouts due to lack of telephone numbers[,]" and that a time limit would "provide temporary relief of QDT telephone number shortages...." (Rehg. App. at pp. 16, 17.) AT&T asserts that these quotations "prove[]" that the 180-day time limit on warm line service "reasonably related to providing relief for number shortages...." (Ibid.) However, this assertion does not address the factors the Decision considered when it analyzed this document, such as the fact that the document addresses generic, not specific concerns and no further information was available to show if the concerns expressed in 1997 ever developed into a situation where "existing technology and facilities" did not permit AT&T to offer warm line service. The rehearing application further argues that under FCC regulations, numbers used to provide warm line service are categorized as "Administrative" and a "requirement to have a large number of Administrative numbers penalizes a service provider" by making it more difficult to obtain more numbers. (Rehg. App. at p. 18.) Notably, the rehearing application does not claim the FCC's rules create a technological or facilities-based impediment that does not permit AT&T to provide warm line service. Further, evidence in the record indicates that this concern may be exaggerated and could, in any event, be resoled by administrative action at the FCC. UCAN's witness states, at page 6 of Exhibit 1:
Not only is the percentage of warm line numbers very small relative to the total universe of numbers, but this concern could be better addressed by seeking that the FCC change its classification of warm line numbers-a change that the North American Numbering Council... has already recommended.
16 The rehearing application further asserts that the Decision is in error for stating that AT&T did not explain the significance of the terms "in jeopardy" or "exhaust" because AT&T had supplied information allowing the Commission to understand the technical meaning of those two terms. (Rehg. App. at p. 20.) However the Decision was not seeking to understand what these terms meant in the abstract-it was seeking to understand why the situation they described did not permit AT&T to offer the warm line service otherwise required by the statute.
17 The rehearing application also criticizes the Decision for considering the 2006 NRUF Report in the first place. AT&T claims that the report was submitted when reply briefs were filed, and therefore it was "legal error to base a decision against AT&T on this issue based on a single document...." (Rehg. App. at p. 21.) This criticism mischaracterizes the Decision, which was not "based on a single document...." This claim also misses the point: the 2006 NRUF Report was submitted as a response to the claims made by AT&T, and AT&T did not object to its being included in the record. (See below at pp. 52, 54-55.)
18 As discussed above, the fact that an area code was split in 2003 can be used to support many different inferences. Once inference that can be drawn is that after 2003 there was no shortage of numbers in either the old area code or in the new area code that was adopted as a result of the split. Another inference that can be drawn is that while numbering shortages developed at some point prior to 2003, a period of time existed before those numbering concerns became serious. As a result, the fact that an area code was split in 2003 does not readily support the inference that AT&T was subject to state-wide limitations on its facilities or its ability to provide service to subscribers of billed service during the entire period covered by this complaint, from May 1997 to August 2006.
19 Because UCAN had no opportunity to discover related documents, UCAN had asked the Commission to give the letter little weight. (Response to Appeal of POD, December 3, 2007, at p. 19.)
20 Moreover, the Decision made AT&T responsible for developing the record on this issue, in part because "most of the information necessary to make such a showing [i.e., that its facilities did not allow it to provide warm line service] is uniquely within AT&T's possession." Thus the fact that AT&T did not explain in any detail what its capabilities were with regard to warm line service-either in terms of the limitations it was actually facing or in terms of its ability to devise a tailored solution-does not prevent the Decision from reaching a conclusion on this issue
21 Commission decisions are available via the Commission's web site. UCAN v. Pacific Bell [D.01-09-058], supra, is available at < http://docs.cpuc.ca.gov/WORD_PDF/FINAL_DECISION/10184.PDF>.
22 The rehearing application also claims that this portion of the Decision is in error because it "was not supported by any citations to the record." (Rehg. App. at p. 27.) The Decision quotes from AT&T's materials, and identifies the sources of its quotations. (Decision at pp. 22 (fn. 31), 24 (fn. 33).) The rehearing application states no reason why the lack of additional citation results in legal error.
23 AT&T also claims that the Decision erroneously ruled against AT&T because AT&T "did not include all the information the Commission may now want in the notice, but failed to communicate to the carriers." (Rehg. App. at p. 26, fn. 97.) However, this claim misunderstands the Decision's findings. The Decision does not establish a disclosure requirement and then find that AT&T failed to meet that newly created requirement. Rather, as discussed in the main text, above, the Decision finds that AT&T failed to meet the minimum statutory standard applicable in all cases to all telephone utilities: correctly describing to customers what service it was providing. (Cf., Pub. Util. Code, § 2896, subd. (a).)
