Motions to Partially Dismiss

AT&T California urges the Commission to dismiss Blue Casa's claim related to the LWC agreement. It argues that, as opposed to the ICA, the LWC agreement is a private contract outside of the Commission's authority. AT&T California maintains that Blue Casa's allegation that it has acted in violation of Pub. Util. Code § 451 with respect to the LWC agreement is misleading and untrue. Instead, Blue Casa is asking the Commission to adjudicate the breach of a private agreement which properly belongs either in the courts or in commercial arbitration. AT&T California insists that it has not contravened "any provision of law or of any order or rule of the commission." Moreover, the Commission is not the appropriate forum in which to settle a private contract dispute.⁶ In its response, Blue Casa denies that the Commission lacks subject matter jurisdiction over the LWC agreement. Complainant asserts that the Commission has authority over the private agreement because it "directly pertains to the provision of public utility service."

Two weeks later, Blue Casa moved for leave to dismiss its claim related to the ICA because it no longer utilized services purchased under that agreement. Consequently, it has no concerns about AT&T California currently discontinuing services to it, and asks the Commission to release all funds escrowed pursuant to the ICA. Contending that the ICA is squarely within the Commission's jurisdiction, AT&T California opposes the motion and asserts that the monies in escrow are owed in payment of a number of ISP charges incurred utilizing services obtained under the ICA.

While the LWC agreement choreographs the logistics of a business relationship with a public utility, the agreement is still a private contract.⁷ As such, disputes regarding the LWC agreement are most appropriately adjudicated in the courts or any other forum agreed to, and included in the accord, by the parties. With respect to the law and the facts of this case, we agree that the cause of action regarding the LWC agreement should be dismissed. The Commission is not the arbiter of private accords, and this specific contract is not a matter over which we have subject matter jurisdiction. Therefore, we shall grant AT&T California's motion and dismiss the cause of action stemming from the LWC agreement.

Blue Casa submits that, in light of it discontinuing serving customers using products acquired from AT&T California under the ICA, the ICA-related claim is moot and the Commission should permit it to voluntarily dismiss the cause of action. But, the matter is not moot; it has become an affirmative defense of AT&T California's. Moreover, granting Blue Casa's request to dismiss this cause of action would only induce AT&T California to counterclaim and file its own complaint. Further, the ICA does not appear to condition Blue Casa's obligation to escrow disputed amounts on whether the carrier is obtaining services under the agreement at the time. Consequently, we will not grant Blue Casa leave to withdraw or dismiss the cause of action derived from the ICA, and we deny Blue Casa's motion to partially dismiss its complaint, as well as its request for related relief.

⁶ See, AT&T California Motion to Partially Dismiss Complaint at pp. 4-7 (December 3, 2007).

⁷ The agreement sets forth the terms and conditions for providing "certain non-251/252 telecommunications-related products and/or services." Section 1.1 of the LWCA General Terms and Conditions.