ALJ/DOT/jva DRAFT Agenda ID #3186

Adjudicatory

2/11/04 Item 12

Decision

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

OPINION ON REQUEST FOR INTERVENOR COMPENSATION

This decision grants The Utility Reform Network (TURN) and the Utility Consumers' Action Network (UCAN) $22,777.11 for substantial contributions to Decision (D.) 03-07-032. In that decision, the Commission approved a settlement between the California ISP Association (CISPA) and SBC California and its affiliate Advanced Solutions Inc. (collectively, SBC/ASI). TURN, UCAN and three independent Internet Service Providers (ISPs) intervened in the proceeding to provide comment and evidence as to whether the original proposed settlement between CISPA and SBC/ASI was in the public interest.

1. Background

CISPA in 2001 filed a complaint against SBC/ASI alleging unlawful discrimination in the provision of Digital Subscriber Line (DSL) Transport services. A Scoping Memo narrowed the issues to be resolved in the complaint, a ruling denied a motion to dismiss by defendants for lack of jurisdiction, and there were several procedural motions regarding discovery. TURN and UCAN monitored the proceeding, especially the issues regarding Commission jurisdiction over DSL, but did not seek to formally intervene.

On August 12, 2002, CISPA and SBC/ASI filed a joint motion to withdraw the complaint, stating that the parties had reached a settlement that resolved the dispute and served the interest of independent ISPs. The settlement agreement itself, however, was said to be proprietary and therefore was not available to the public. After protests by independent ISPs and TURN and UCAN, the settling parties made the settlement agreement public on August 29, 2002.

TURN and UCAN state that they became concerned that CISPA's interests had diverged from those of small business and residential consumers. On September 10, 2002, TURN and UCAN filed a motion to intervene and opposed the joint motion to withdraw. By Administrative Law Judge (ALJ) Ruling on December 17, 2002, the motion to intervene was granted on the basis that TURN and UCAN "have an interest in this complaint as representatives of end-users concerned with the competitive provisioning of internet services." (ALJ Ruling, at 5.)

In the same ruling, the ALJ denied the joint motion to withdraw the complaint and ordered that the Commission review the proposed settlement under Rule 51.1 "to determine whether it is reasonable in light of the whole record, consistent with law, and in the public interest." (ALJ Ruling, at 13.) The ruling delineated several provisions of the proposed settlement for review, requiring CISPA and SBC/ASI to convene a settlement conference for all parties, to file and serve a report on whether the settlement would be modified, and allowing other parties to comment on the settlement report.

Parties conducted two settlement conferences on January 3 and January 29, 2003. CISPA and SBC/ASI filed a revised settlement on February 10, 2003, and parties filed comments on February 20 and March 10. On June 3, 2003, the ALJ issued a draft decision approving the revised settlement with modifications. Parties filed comments on the draft decision, and the Commission subsequently issued its final decision (D.03-07-032) approving the settlement but requiring the settling parties to adopt some modifications. The settling parties filed a final settlement on July 21, 2003, and the case was closed on September 5, 2003, with the issuance of D.03-09-009.