II. DISCUSSION

We have reviewed Qwest's application for rehearing, and have concluded that Qwest's compliant should not have been dismissed on the ground for failing to state a cause of action. Therefore, we grant rehearing to consider the allegations of discrimination asserted in Qwest's complaint.

We note a few guiding principles: To prove discrimination, a carrier will have to show that it was similarly situated and that there was no rational basis for such different treatment. (Order Denying Rehearing of Decision (D.) 09-12-018 [D.10-04-054] (2004) ____ Cal.P.U.C.3d ___ at p. 7 (slip op.).) "A showing that rates lack uniformity is by itself insufficient to establish that they are unreasonable and hence unlawful. . . ." (Order Denying Rehearing of Decision (D. )06-07-030) [D.07-01-020] (2007) ___ Cal.P.U.C.3d ___ at p. 7 (slip op.) relying on Hansen v. City of San Buenaventura (1986) 42 Cal.3d 1172, 1180. "Numerous characteristics of a particular customer -- volume, calling patterns, cost of negotiation, etc. -- could be sufficient to distinguish one customer from another." (Re Alternative Regulatory Frameworks for Local Exchange Carriers [D.94-09-065] (1994) 56 Cal.P.U.C.2d 117, 243. As the Commission recognized:

[C]ontracting with individual customers at rates that deviate from those available under the tariffs raises the issue of whether such contracts violate the nondiscrimination provisions of § 453(a). Courts reviewing this issue under statutes similar to § 453 have concluded that such contracts are permissible if the rates under the contract are made available to any similarly situated customer willing to meet the contract's terms. [Citations omitted.] (Id., relying on Sea-Land Service, Inc. v. ICC (D.C. Cir. 1984) 738 F.2d 1311, 1317; MCI Telecommunications Corp. v. FCC (D.C. Cir. 1990) 917 F.2d 30, 38; see also, General Order 96-B, Telecommunications Industry Rule 8.2.2 -Availability of Contract Rates, stating: "The rate or charge under a contract then in effect must be made available to any similarly situated customer that is willing to enter into a contract with the same terms and conditions of service."

We note that Defendants in this proceeding have filed numerous motions to dismiss and motions for summary judgment. These motions had been denied as moot in D.10-07-030. Because we are granting rehearing and vacating D.10-07-030, these motions are once again pending. Disposition of these motions shall be made during the rehearing. We grant Qwest's motion for leave to file the unredacted version of its Application for Rehearing under seal.