IV. CONCLUSION

In this order, we have considered each of the rehearing application's several claims of error. Many of these claims are based on a misunderstanding of the Decision's holdings. Other claims rely on inapplicable principles of law. This order explains the Decision's reasoning in order to make it clear that the factual findings made in the decision and the legal conclusions it reaches are correct. In addition, the Decision itself will be modified, among other things, to make it clearer, and to correct the citation to AT&T's Tariff Rule 14. Once modified, the application for rehearing of D.08-08-017 should be denied. The following ordering paragraphs achieve this result.

Therefore IT IS ORDERED that:

1. The last paragraph in Section 4, "Questions Presented" that appears on page six, is modified to read:

In addition, AT&T's contentions raise the issue of whether the provisions of section 2883 relieve a carrier of its 911 access obligation in the circumstances present here. Two provisions in the statute qualify the obligation to provide warm line service. Subsection (a) requires local exchange carriers. "to the extent permitted by existing technology or facilities" to provide access to 911 services. Subsection (e) further states: "Nothing in this section shall require a local telephone corporation to provide `911' access . . . if doing so would preclude providing service to subscribers of residential telephone service." These provisions should be read to create an exception that is stated twice in the statute: a carrier need not comply with the full extent of section 2883's requirements if it faces certain obstacles. AT&T claims this exception applies to its circumstances because of numbering concerns. (AT&T's Opening Brief at pp. 2, 6-7.)

2. Section 4, "Burden of Proof" on pages six and seven, is modified in its entirety to read:

UCAN has the burden of establishing the allegations set forth in its complaint by a preponderance of evidence. AT&T argues that UCAN also has the burden of establishing, by a preponderance of evidence, that none of the statutory provisions that allow a carrier to curtail warm line service under certain circumstances apply to AT&T.

AT&T's claim that the exception that allows warm line service to be curtailed applies here will be treated as a defense. In order to prevail in this proceeding UCAN will not be required to prove the negative proposition that none of the circumstances allowing a carrier to curtail warm line service apply to AT&T. AT&T is incorrect in assuming that UCAN bears the burden of proving that no statutory exception applies in order to prevail. If UCAN makes a case that the warm line service provided by AT&T does not comply with section 2883's general requirements, then AT&T, in order to prevail, must prove that the statute's exceptions do in fact justify its warm line policy. AT&T cannot prevail simply if it "casts doubt" on UCAN's claims-it must show that the statutory provisions it claims are applicable do in fact apply. (Cf., AT&T's Opening Brief at p. 2.)

Evidence Code § 500 provides appropriate guidance and will be followed here: "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."3 It is especially appropriate for AT&T to bear the burden of proving that an exception that AT&T claims justifies its conduct applies to the particular facts of AT&T's situation. Most of the information necessary to make such a showing is uniquely within AT&T's possession.

3. The topic heading for section six, on page seven, is modified to read: "6. What Facilities Are Used To Provide Telephone Service?"

4. A new sentence is added at the end of the first, partial, paragraph on page eight, following the reference to footnote 4. That sentence reads:

This description of what is necessary to provide telephone service should not be confused with the question of what constitutes a "telephone connection" as that term is used in § 2883. That question is addressed below.

5. The last two sentences of the last paragraph of Section 7.1, which appear on page nine, immediately following the reference to footnote five are deleted and replaced with the following:

Further, carriers have a continuing obligation under § 2883(a) to provide 911 access from these residential units-the statute does not state that this obligation is interim or temporary. This obligation exists under § 2883(b) even if AT&T discontinued residential service "for nonpayment of any delinquent account or indebtedness owed by the subscriber to the telephone corporation." Thus, as UCAN points out, unless certain specific conditions exist that excuse a carrier from complying with § 2883's requirements, a policy of terminating warm line service after a certain period of time is not valid under the statute. As discussed above in connection with the burden of proof, AT&T's specific contention that § 2883 allowed it to implement its warm line policy in response to numbering concerns will be considered separately, as a defense. In light of the fact that AT&T adopted a state-wide policy of terminating warm line service after approximately 180 days, even though UCAN pointed out that numbering usage varies by area, it is appropriate to require AT&T to prove its claim that its policy is justified by numbering concerns.

6. The first clause of the first sentence of the first full paragraph on page 12, which introduces the numbered list is modified to read:

Both parties' expert witnesses provide helpful testimony to provide a more detailed understanding of the elements necessary to provide service over a residential phone connection:

7. The first full paragraph on page 14, which paragraph begins, "While we do not explore ..." is modified to read:

However, we reject AT&T's contention that the plain meaning of the statute requires us to conclude that a telephone connection is not present unless AT&T has taken steps to provide service over that connection. A statute should be read to ascertain and effectuate its purpose. It is obvious from the statute itself that the Legislature, in enacting § 2883, sought to expand the availability of 911 access, even in certain new residential units "regardless of whether an account has been established." This requirement is relatively unqualified, with only two provisions possibly creating a situation where a carrier would not be required to provide warm line service at a new residence. As discussed elsewhere, an exception allows a carrier to restrict the availability of 911 access in some circumstances because of limits in existing technology and facilities or if providing warm line service would preclude the carrier from providing service to other residential subscribers. The second provision, which AT&T contends is relevant here, requires a "telephone connection" to exist before warm line service is to be provided at new residences.

8. The second full paragraph on page 14, which paragraph begins, "Regardless of these two limitations ..." is modified to read:

We do not accept AT&T's tautology, i.e., that all the steps necessary to provide voice service must already have been taken before a telephone connection exists and makes the company statutorily obligated to provide 911 emergency voice access. Section 2883(a) contemplates that, once a "telephone connection" is in place, AT&T must do something: it must take the remaining steps to "provide access to `911' emergency service regardless of whether an account has been established[,]" unless an exception applies. In order to determine when this statutory requirement applies, we further consider both the meaning of "telephone connection" and how the exception related to existing technology and facilities applies in the typical new residential setting.

9. The second sentence of the paragraph spanning pages 15 and 16, which sentence begins, "We interpret ..." is modified to read:

We interpret the phrase "telephone connection" in section 2883 to mean: (a) a CT facility from the primary Minimum Point of Entry at the residential unit or complex to the line side of the central office's main distribution frame, and (b) the appropriate infrastructure on the residential side of the primary Minimum Point of Entry, including inside wiring, phone jacks, and in the case of a multiple dwelling building or complex wiring from the primary minimum point of entry to the residence's secondary Minimum Point of Entry.

10. The first full paragraph on page 16, which paragraph begins, "Because of the ..." is modified to read:

We note in passing that because of the "existing technology and facilities" provisions, § 2883 a carrier need not bring a CT facility to new residential structures solely for the purpose of providing 911 access, nor is a carrier required to attempt to provide warm line service in situations where the residence has not been outfitted with the necessary infrastructure (for example phone jacks, or a connection between the primary Minimum Point Of Entry and a secondary Minimum Point Of Entry). 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),18 the carrier is responsible for taking all remaining steps necessary to provide 911 access, if requested by the residential owner or occupant (essentially the same step that would be required to provide billed service). Because the owner or occupant determines when construction is complete, and because a portion of the required infrastructure is under the control of the owner or occupant of the residence, we conclude a carrier's obligation to provide warm line service should begin when a CT facility is in place and the owner or occupant indicates that service should begin.

11. The second full paragraph on page 18, which paragraph begins, "AT&T also uses the..." is modified to read:

AT&T also uses the June 2006 Central Office Code Assignment Activity Report, prepared by the North American Numbering Plan Administrator (NANPA), to argue that 20 of California's 27 Numbering Plan Areas (NPAs, commonly known as area codes) have been exhausted or are in jeopardy. AT&T, however, provides no explanation that allows us to understand the significance of the "exhausted" or "in jeopardy" characterizations of these area codes. Additionally, AT&T does not explain why a 180-day termination policy would be necessary for area codes not listed as "exhausted" or "in jeopardy."

12. The last three paragraphs of Section 7.4, appearing on pages 19-21, and beginning with the words, "For its part, UCAN ..." are modified to read:

UCAN made a number of arguments concerning numbering, several of which we find helpful and persuasive. UCAN pointed out that AT&T's evidence tends to show that numbering shortages are "possible" or that they "could" occur but not that these possibilities actually did occur. UCAN's Opening Brief at 37-38. UCAN also suggests that AT&T's warm line policies were motivated by cost concerns rather than concerns about numbering resources. UCAN's Opening Brief at 44-46. In addition, UCAN provided rebuttal evidence that disputed AT&T's assertion that there was a state-wide lack of numbering resources in California, and disputed the AT&T's claims about the seriousness of numbering concerns. Specifically, UCAN presented and discussed a report issued by NANPA, the "2006 NRUF and NPA Exhaust Analysis,"28 to rebut the conclusions AT&T drew from NANPA's June 2006 Central Office Code Assignment Activity Report. The Exhaust Analysis report attempts to estimate when numbering resources within a specific area code are likely to be exhausted and whether the time projected for exhaustion within a specific area code is increasing or decreasing. While AT&T asserts that its NANPA materials show that 20 of 27 California area codes were experiencing some form of numbering limitations ("exhausted" or "in jeopardy"), the report UCAN provided stated the time when the NANPA projected California area would begin to experience exhaust events, and two-thirds of those area codes were not projected to begin experiencing these events within 5 years.29 This allows us to conclude that AT&T's position does not necessarily reflect the NANPA's views. UCAN also convincingly demonstrates, using material relied upon by AT&T, that AT&T's state-wide warm line policy is not rationally related to its stated purpose of proactively managing numbering resources to avoid shortages because limitations in available telephone numbers do not occur state-wide.30

AT&T has not carried its burden of showing that that a defense based on unavailable technology or facilities justifies its admitted curtailment of 911 access after 180 days and failure to connect new residential units when infrastructure is already in place. None of the material AT&T relies upon shows that numbering concerns resulted in any specific, "existing" limitations in AT&T's technology or facilities, or meant that providing warm line service as the statue otherwise required would have precluded it from providing billed service to other subscribers. Put another way, AT&T only identified generic 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[.]" Given the legislative purpose behind § 2883, AT&T's policies, to be permitted under the statute, would have to be closely tailored to the risk of exhaustion in a specific area code. AT&T's blanket, statewide policy of 180-day termination and failing to connect new residential units appear to be arbitrary measures because AT&T did not show that these measures bore a reasonable relationship to actual numbering projections in specific area codes.

In summary, AT&T has conceded that it applies a 180-day termination policy for most currently or previously occupied residential units where voice service has been voluntarily or involuntarily curtailed. AT&T has also conceded that it fails to connect new residential units even when a CT facility exists to the central office. AT&T claims that its policy is justified because § 2883 permits it to curtail warm line service under certain circumstances, but AT&T has not supported that claim by showing that its policy has a direct relationship to technology and facilities limitations - including numbering constraints. Thus AT&T did not carry its burden of proof for the defense it raised. Additionally AT&T's internal documents show that AT&T adopted its warm line policy in response to the possibility of a shortage in telephone numbers, but the carrier did not perform a more detailed analysis of its facilities and equipment, numbering availability or the needs of customers in specific locations in response to this generic concern. In fact, AT&T's internal documents support the inference that AT&T instituted its policy to achieve cost savings, and because it had recently developed the ability to easily and cheaply terminate warm line service en mass, rather than line by line. Given the information in the record, we conclude that the circumstances that allow a carrier to curtail warm line service were not present for AT&T on a state-wide basis, during the time period covered by the complaint.

13. The first full paragraph on page 23, which paragraph introduces the quotation from section 2896, subdivision (a), and begins "Whether or not..." is modified to read:

Thus, whether or not the Commission has issued specific requirements under § 2883(c), we established a minimum disclosure obligation that carriers must meet. The requirements of this affirmative obligation include providing adequate 911 access information, so that customers are adequately informed of their choices. The Legislature has also established this minimum customer information standard set in § 2896(a), which provides:

14. The second full paragraph on page 23, which paragraph appears after the quotation from section 2896, subdivision (a), and begins "Sections 2883(c) and 2896(a) ..." is modified to read:

When sections 2883(c) and 2896(a) are considered together, it becomes clear that we, and the Legislature, have articulated the basic requirement carriers must follow. Carriers must give customers enough information about warm line service to make informed choices. When issuing rules or orders pursuant to § 2883, the Commission may determine the format of such information and increase the amount of information required; but the Commission may not require less than the statutory minimum information required of utilities by § 2896(a). As a result, lack of Commission action did not affect the basic requirement that carriers were under an obligation to follow.

15. The last sentence of the first full paragraph on page 24, which sentence begins, "Because we find that..." is deleted.

16. The second full paragraph on page 31, which paragraph begins, "The Commission takes official notice..." is deleted.

17. The third full paragraph on page 31, which paragraph begins, "Regarding the remaining criteria..." is modified to read:

Regarding the remaining criteria for assessing penalties (financial ability, totality of the circumstances and precedent), several recent Commission decisions indicate that the size of the penalty imposed here is comparable to other recently imposed penalties, and far smaller other penalties imposed on AT&T. However, the conduct sanctioned here is somewhat unique from that penalized in other proceedings.

18. The last sentence in the first full paragraph on page 32, which sentence begins, "In this proceeding..." is modified to read:

In this proceeding, AT&T's conduct is marked by a lack of good faith in attempting to discharge its statutory obligations.

19. The first sentence in the first full paragraph on page 33, which sentence begins, "Having examined the foregoing..." is modified to read:

Having examined the foregoing factors and totality of circumstances, we believe AT&T did not engage in a good faith effort to discharge a statutory responsibility imposing an important public safety obligation (emergency 911 access), a violation that would have been more serious had we received evidence of personal injury or property damage as a consequence of this policy.

20. The second full paragraph on page 35, which paragraph begins, "While specific information..." is restated to read:

While specific information is unavailable for us to order reparations or disgorgement, we will allow customers and other persons to pursue other remedies otherwise available to them at law or in equity. AT&T's failure to provide emergency access service in conformity with § 2883 is a violation of law. As a result, AT&T's tariff Rule 14, which limits AT&T's liability, does not insulate AT&T from liability for its conduct in this case. Schedule CAL. P.U.C. No. A2.2.1.14.A.1 states: "The provisions of this rule do not apply to errors and omissions caused by willful misconduct, fraudulent conduct, or violations of law." Because we cannot award reparations it is proper to make provisions so that customers who have been injured by AT&T's conduct can seek appropriate remedies.

21. The last sentence in the third full paragraph on page 37, which sentence begins, "With this showing..." is modified to read:

Under the technical rules of evidence, with this showing it would become the defendant's burden to establish a defense, such as the unavailability of existing technology and facilities.52

22. The paragraph spanning pages 39 and 40, which paragraph begins "Second, as the POD determined..." is modified to read:

Second, as the POD determined, AT&T did not engage in good faith in its failure to comply with § 2883, a precondition for application of its own standard. As the POD indicates, AT&T's termination policy "was implemented without the analysis of facilities and equipment availability, number availability, or the needs of the customers in the specific areas affected." POD at 30. This decision also indicates that AT&T's conduct did not meet requirements of good faith at pages 34, and 42. As a result, AT&T does not satisfy the good faith precondition for the lenient interpretation it seeks to invoke. This discussion also answers AT&T's related argument, set forth in Part III(F) of its brief, that there is no basis for the imposition of a penalty because its interpretation of § 2883 was reasonable. The POD justifies its conclusion why AT&T's termination policy was unreasonable.

23. The first full paragraph on page 41, which paragraph begins, "We also do not accept..." is modified to read:

We also do not accept AT&T's continued urging that billed voice service must be in place before the carrier has a responsibility to provide 911 access. In the POD, we described AT&T's position as a "tautology, i.e., voice service must already exist before the company is statutorily obligated to provide 911 emergency voice access." POD at 14. (This language was subsequently modified.) AT&T repeats this same refrain ("there is . . . no basis to exclude certain elements included in AT&T's definition, namely the physical connection from the MDF [main distribution frame] to the switch . . ."), AT&T App. Brief at 11, which if accepted would nullify any protection afforded by the statute. We do not believe the legislature contemplated a meaningless act in its adoption of § 2883. As the POD indicates, when a telephone connection and other prerequisites are in place, "AT&T must do something: it must take the remaining steps to provide access to `911' emergency service"-steps including making the physical connection from the main distribution frame to the switch. POD at 14

24. The first two full paragraphs on page 43 and the following paragraph spanning pages 43 and 44 are modified to read:

Additionally, AT&T maintains that the POD commits legal error by not considering the letter attached as Attachment MJ-8 to Martha Johnson's testimony. (Exhibit 5.) AT&T alleges that this letter informed Commission staff that a disconnect policy was necessary due to numbering constraints. AT&T App. Brief at 14. We have considered the letter, but it does not support AT&T's interpretation. AT&T seems to make the argument that, by communicating the 180-day disconnect policy to Commission staff, the policy thereby became anointed as reasonable.

To the contrary, the letter in Attachment MJ-8 informed Commission staff that "Pacific Bell is in the process of initiating an automated process to recapture useful telephone plant. Upon exceeding a 180-day time period, the QDT will be automatically broken to place its assigned plant facilities back onto the pool of available facilities for re-assignment to new customer service."

While the letter then mentions the need for reserve capacity, the following paragraph indicates that the true basis for the disconnect policy is cost-not numbering shortages: "Although we have not conducted cost studies associated with leaving over-aged QDTs permanently in place, we believe that the dollar amount would easily reach in the tens of millions of dollars." The letter further suggests that the development of new automated techniques making it possible to disconnect warm line service without employing expensive manual techniques may have prompted the carrier to adopt its policy. The letter then concludes with an unauthorized-and in our view incorrect-summary of statutory purpose: "The intent of the QDT was to provide an interim method to access emergency services . . . ." 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 only on an interim basis. And staff members who did not have a legal background or the benefit of extensive knowledge about the requirements applicable to warm line service would not be able to realize, given this context, that this letter was describing a potentially impermissible change to the carrier's warm line policy.

25. Section 11.8 spanning pages 47 and 48 is modified to read:

AT&T complains that the POD errs by canceling any protection the carrier might have to limited civil liability under its tariff. The POD originally withdrew the immunity conferred under Schedule CAL. P.U.C. No. A2-T, 2.14.1B because it concluded AT&T's warm line policy represented willful misconduct. Subsequently it was determined that AT&T's liability was limited under Schedule CAL. P.U.C. A2.2.1.14.A.1 and immunity was withdrawn as a result of the fact that AT&T's warm line policy was a violation of law. AT&T's appeal contends that the POD's conclusion regarding willful misconduct reached a conclusion beyond the allegations in UCAN's complaint. While this decision no longer refers to willful misconduct, we do believe that AT&T failed to act in good faith, and that UCAN alleged a deliberate corporate policy in violation of § 2883 ("However, SBC [AT&T] has admitted to implementing a policy where it in fact does so [terminates warm line access contrary to § 2883(b)]." UCAN First Amended Complaint April 17, 2006, at ¶ 18. The POD concludes, based on the facts, that AT&T had adopted a 180-day disconnect policy that "is unreasonable, arbitrary, and capricious and does not support an `existing technology or facilities' exemption under § 2883(a)." POD at Conclusion of Law 3. Based on the arbitrary policy, Conclusion of Law 3, and other determinations made in the POD, the nullification of the tariff's protective language only replicates what § 2106 independently requires: "Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the Commission, shall be liable to the person or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom."

26. Section 11.10, spanning pages 50-51, is modified to read:

AT&T's appeal asserts it was error for the POD to consider "a single FCC document introduced by UCAN for the first time in its reply brief," which occurred "On December 6, 2006, [while] the ALJ issued a ruling granting UCAN's request for official notice, and denying our request for official notice." AT&T App. Brief at 3 and 5. AT&T appears to contest the fact that we determined to consider a document offered by UCAN but did not consider a document AT&T offered. This claim does not contend with the fact that there is no parity between these two documents. AT&T did not oppose UCAN's request that we take official notice of its document, and stated that this document was a proper subject for official notice. AT&T's separate request that we take notice of its Form 502 utilization data was contested by UCAN, which argued, among other things, that the calculations AT&T made using this material used the wrong mathematical approach and the material would have to be tested at a hearing before we could rely on it. The Presiding Officer concluded that AT&T's calculations should be stricken, although AT&T's material was filed, under seal. See ALJ Ruling (Dec. 6, 2006). As previously discussed, we do not lightly disturb the evidentiary rulings of the Presiding Officer in our proceedings, and we endorse this ruling. The material does not appear to qualify for official notice and we find UCAN's concerns about the accuracy of AT&T's calculations to be persuasive.

27. Finding of Fact 7, spanning pages 52 and 53 is deleted and replaced with the following additional findings of fact:

7a. In general, the facts and arguments relied upon by AT&T to support its policy of terminating warm line service after approximately 180 days are too general because they only show that AT&T was contending with numbering issues, and they fail to describe the "extent" to which those numbering issues affected its "technology or facilities" or how the provision of service to subscribers would be precluded.

7b. AT&T's reference to Commission-approved area code splits is equivocal, suggesting both a growing demand for phone numbers and the ability of the regulatory process to respond to that need.

7c. AT&T's reference to the June 2006 Central Office Code Assignment Activity Report, prepared by the NANPA provides no means for understanding the significance of the "exhausted" or "in jeopardy" characterizations of 20 of California's 27 Numbering Plan Areas, and other material in the record suggests that the conclusions AT&T draws from this report may not necessarily reflect the position of the NANPA.

7d. AT&T adopted a blanket, state-wide policy to curtail warm line service even though the record showed that when the supply of available telephone numbers became restricted this occurred only in specific area codes, for a limited period of time. Because AT&T was unable to show that its policy bore a rational relationship to the numbering restrictions AT&T faced its policy was arbitrary.

7e. AT&T's internal documents show that AT&T's warm line policy was as adopted in response to a general concern that telephone numbers could be depleted, and no material in the record shows that AT&T quantified its need for numbers, assessed the limits of its facilities capabilities, considered equipment availability, or reviewed or attempted to update or verify its original 1997 analysis. Because terminating warm line service has potentially serious public safety ramifications, such conduct does not show good faith.

7f. AT&T's internal documents show that in addition to concerns about numbering, concerns about cost, and the recently developed ability to terminate warm line service automatically may have prompted the carrier to adopt its policy of terminating warm line service after approximately 180 days.

28. Finding of Fact 9, on page 53, is modified to read:

9. If the "CT facility" described in this order has been installed between the residential unit and AT&T's central office; and the CT facility is connected to the residential unit's primary Minimum Point of Entry; and the building or complex contains the requisite internal infrastructure, as described in this order, then the additional steps necessary to make a telephone connection capable of providing service 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.

29. Finding of Fact 20 on page 55 is modified to read:

The record does not reflect what portion of AT&T's revenues from May 13, 1977 through August 15, 2006, is attributable to its official emergency access policy, and we have no means to estimate the sum.

30. Conclusion of Law 8, on page 57, is restated to read:

8. This decision concludes that AT&T violated § 2883. Under the terms of its tariff, Schedule CAL. P.U.C. A2.2.1.14.A.1, AT&T's liability is not limited when its conduct violates a statute. Accordingly, AT&T's liability to a customer or other person for damages resulting from its violation of § 2883 is not limited by its tariff.

31. Rehearing of D.08-08-017, as modified herein, is denied.

This order is effective today.

Dated April 16, 2009, at San Francisco, California.

3 See also City of Brentwood v. Central Valley Regional Water Quality Control Bd., 123 Cal. App. 4th 714, 725 (1st Dist. 2004) (when charged with wastewater permit violations, alleged polluter has burden of proving that statutory exceptions are available).

18 "If the LUs are a part of a multiple dwelling/multiple building complex, the contractor/developer also must arrange to have the jacks in each unit wired to the secondary MPOE, and to have the secondary MPOEs wired to the primary MPOE." Id. at 6.

28 In a ruling dated December 6, 2006, the Presiding Officer took official notice of this report.

29 2006 NRUF and NPA Exhaust Analysis, Exhibit A to Request for Judicial Notice of Report, September 15, 2006, at 9-10.

30 The record does not disclose how many numbers AT&T controls or is likely to acquire in these 26 area codes in coming years. After the parties had stipulated to submitting the proceeding on the prepared testimony and stipulated exhibits, AT&T requested that the Commission take official notice of FCC Form 502, which was denied by the Presiding Officer. Because AT&T (not the FCC) generated the information in Form 502, official notice is impermissible under Rule 13.9 and California case law. See ALJ's Ruling Resolving Pending Motions re Record and Submitting Proceeding at 2-3 (Dec. 6, 2006).

52 We note that in this case, UCAN has done more than what is required under this formulation of the law. UNAN demonstrated that section 2883 contains no time limit restricting the provision of warm line service, and further showed that AT&T's blanket, state-wide policy bore little relationship to numbering concerns that were transitory and limited to specific area codes. In light of these showings and the evidentiary principles discussed above, we find it entirely appropriate to require AT&T to demonstrate that its warm line policy was, in fact, required by numbering concerns.

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