Motion to Dismiss

A motion to dismiss¹ essentially requires the Commission to determine whether the party bringing the motion prevails based solely on undisputed facts and matters of law. The Commission treats such motions as a court would treat motions for summary judgment in civil practice. (Westcom Long Distance, Inc. v. Pacific Bell et al., Decision (D.) 94-04-082, 54 CPUC2d 244, 249.) Defendants' motion to dismiss is partially granted and partially denied, as discussed below.

Jurisdiction

Defendants assert the Commission has no jurisdiction over DSL Transport. Complainant states that the Commission has jurisdiction because DSL Transport is detariffed at the federal level, there is an intrastate tariff for RLAN DSL, and the Commission asserted jurisdiction over DSL in D.03-07-032. Defendants further assert that SBC California can provide customer support to customers of the SBC-affiliated ISP under existing law without providing the same support to Complainant, that customer privacy laws preclude SBC California from providing Raw Bandwidth with information concerning changes in underlying voice service, and that the previous tariff and current contract provide that DSL Transport only is offered over a telephone line where line-sharing exists.

The Commission has resolved that it has concurrent jurisdiction with the FCC over DSL. (D.03-07-032, 2001 Cal. PUC LEXIS 1232 *4.) The Commission's jurisdiction encompasses enforcement of California law and Commission orders, including consumer protection and service quality, but does not extend to rates, operating speeds and other matters included in federal tariffs. (See id.) This Complaint does not raise rate issues or technical matters within the ongoing jurisdiction of the FCC in a detariffed environment. Defendants' motion to dismiss this Complaint for lack of jurisdiction over DSL Transport is denied.

611 Referral

Defendants assert SBC California is permitted as a matter of law to provide customer support to SBC's ISP (SBCIS). Therefore, it is not discriminatory to give callers to SBC California's 611 Help Line the option to be directly connected to SBCIS. Complainant disputes that contention and alleges that the FCC requires SBC California to offer the same access to enhanced services to other ISPs as it does to its own ISP. As noted by Defendants, the authority cited by Complainant for that proposition merely requires that local exchange service providers should be able to use 611 for repair and their customers should be able to reach their own carriers' repair service when dialing 611. However, Defendants' reliance on the joint marketing provisions of the FCC's Computer III decision does not support their claim that they can provide customer support to SBCIS.

It is unclear whether Defendants' practice of referring SBCIS's customers to 611 when declining to provide that same service to Raw Bandwidth's customers is contrary to the provisions of the FCC's Merger Order, In Re Applications of Ameritech Corp. and SBC Communications, Inc., (1999) CC Docket No. 98-141, 14 FCC Rcd. 14712, ¶ 473.) Defendants also noted at the PHC that it might be necessary to take evidence on this issue. For the foregoing reasons, I decline to dismiss Count 3 of the First Cause of Action.

Notice When Voice Service Will Be Disconnected

Customers have the right to privacy when their service is disconnected or about to be disconnected. (D.92-06-063, Jama vs. PG&E, 44 CPUC2d 682.) Defendants cannot inform Complainant when the underlying voice service is about to be disconnected without violating those customers' privacy rights. Complainant asserts there is no privacy violation, because it only wants advance notice of disconnection of the DSL Transport service that it purchases. However, such advance notice only would be necessary if the underlying voice service also was going to be disconnected, negating Complainant's claim that there would be no privacy concern. Once underlying voice service is disconnected, SBC ASI no longer can furnish DSL Transport under its contract with Complainant and so notifies Complainant. The parties disagree on whether Defendants' customer service representatives fail to warn customers who are disconnecting their voice service that their DSL service also will be disconnected.

Complainant does not refute Defendants' contention that the DSL Transport tariff/contract provides for disconnection when the underlying voice service is disconnected. Instead, Complainant alleges the failure to provide notice to Complainant is not adequate, efficient, just and reasonable as required under Pub. Util. Code §§ 451, and 2896. Because the relief Complainant requests has privacy impacts, Defendants' motion to dismiss Complainant's Third Cause of Action, Counts 3 and 4, is granted. However, I will grant Complainant leave until September 22, 2003, to amend the Complaint to request relief that would obviate these privacy impacts.

¹ Defendants filed their motion to dismiss pursuant to Rule 45 of the Commission's Rules of Practice and Procedure.