VII. Appeals

The decision of the presiding officer, ALJ Grau, was mailed on June 27, 2003. Pursuant to rule 8.2 of the Commission's Rules of Practice and Procedure, CPSD and Starving Students filed appeals of the Presiding Officer's Decision (POD) on July 25 and 28, 2003, respectively. CPSD and Starving Students filed responses on August 12, 2003.

CPSD and Starving Students object to different sections of the POD and oppose each other's appeals. CPSD's appeal contends that the POD contains several errors, including a conclusion of law, a statement in the POD, incorrectly applying § 5285, illegally ordering credits, and staying the imposed suspension without explanation. Starving Students responds that CPSD's appeal disregards the facts, misapplies the law, and misrepresents the impact a Commission decision will have on the moving industry and Starving Students. Starving Students does acknowledge that the conclusion of law could be clarified to more accurately reflect the text of the POD.

Starving Students' appeal contends that the POD contains several significant errors of fact and law, including findings based upon hearsay, sanctions that are excessive and inconsistent with Commission precedent, and probationary terms that are excessively harsh, inconsistent and incompatible with the violations found, and that the POD violates §§ 5317 and 5318. CPSD states Starving Students' appeal should be denied, because Starving Students fails to point out any legal error and misstates the law with regard to hearsay and burden of proof.

Starving Students claims that the POD errs in finding Starving Students violated Item 100, because the POD acknowledges CPSD failed to prove that the declarations concerned moves exceeding 5,000 pounds and 75 constructive miles. Instead, the POD finds Starving Students misrepresented its ability to complete moves in violation of Max Tariff 4, Item 88. To resolve any ambiguity, we have modified the POD to clarify that Starving Students violated Item 88 at least 32 times.

CPSD states that the POD is inconsistent with Commission precedent in staying the 180-day suspension and imposes upon CPSD three more years of monitoring Starving Students' activities. CPSD recommends an actual 30-day suspension and a compliance plan, because CPSD believes that reorganizing will permit Starving Students to achieve compliance. CPSD also contends that requiring Starving Students to pay a $100 credit if Starving Students violates certain conditions is illegal, because it would permit Starving Students to violate the law as long as it paid the credit. We find the POD's imposition of a 180-day suspension is appropriate in light of the severity of the violations and concur that staying the suspension is also appropriate because Starving Students has made significant progress in addressing those violations. The POD discusses our authority to impose service guarantees on carriers such as Starving Students and we need not further elaborate. Although the POD intends that performance guarantees substitute for more comprehensive monitoring of Starving Students by CPSD, we revise the POD to ensure that the service credits perform that function.

Starving Students notes the POD failed to consider evidence it introduced that demonstrated that Starving Students had proof of insurance on file during the two-day suspension period from December 8 through December 9, 1999. We have corrected that omission and adjusted the resulting penalty accordingly.

CPSD contends the POD requires CPSD to interview consumers with complaints and obtain a sworn declaration in order to prove a violation. The POD did not set that standard but we modify the POD to clarify the standard for determining violations applied in this decision.

Starving Students states that the POD is inconsistent with Commission precedent in finding violations where overall complaints are below the industry norm and do not involve personal injury or death and rarely involved significant property damage. Starving Students largely relies on a POD in an electric line safety investigation. That POD has no precedential import. However, we modify the POD to address Starving Students' concerns.

CPSD contends the POD errs in its finding that Starving Students did not violate § 5285 due to an incorrect interpretation of "knowingly and willfully." We find that the POD applied the correct standard.

Starving Students states the POD violated §§ 5317 and 5318, because it imposes penalties without complying with the procedures and rules of evidence applicable to civil actions in superior court and without resort to such court. We have consistently interpreted our authority to permit imposing penalties and find no reason to determine that authority does not extend to household goods carriers.

CPSD contends the POD does not address the 12 violations CPSD alleged for Starving Students' failure to provide a "Not to Exceed Price." We have corrected the POD refer to these additional alleged violations of Max Tariff 4, Item 128, and adjusted the resulting penalty accordingly.

Both CPSD and Starving Students state the POD is unclear by its requirement that the stay of the 180-day suspension shall be lifted if Starving Students violates any law, regulation, or condition. CPSD recommends that it be authorized to bring an Order to Show Cause why the suspension should not be imposed if violations are found in the future. Starving Students recommends that the stay be lifted only if the number of verifiable complaints concerning the company during any three-month period exceeds industry norms. We modify the POD to provide guidance on this issue.