C. Discussion

As the description of terms set forth in the preceding section indicates, the key provisions of the revised settlement agreement are virtually identical to those relating to this investigation that the Commission approved in D.04-06-017. The settlement sum and schedule for paying it are the same, the restitution provisions and duties of the settlement claims administrator (Rosenthal) are the same, and the undertaking by respondents to abide by the terms of the FCC TCU Consent Decree is the same. (Mimeo. at 10-14.) We expressly concluded in D.04-06-017 that these terms satisfied the requirements of Rule 51.1(e) of our Rules of Practice and Procedure, and we see no reason to depart from that conclusion here. (Id. at 19-21.)

In addition, the revised settlement agreement addresses the concerns expressed in D.04-06-017 about the restitution process and any future applications by respondents. First, the fee agreement with Rosenthal (Appendix A to the revised settlement agreement) has been modified to state that Rosenthal's compensation for acting as settlement claims administrator shall not exceed $7,825. (See, D.04-06-017, mimeo. at 22.) Second, ¶5.10 has been added to the settlement agreement; it requires that if any of the respondents in this proceeding (or any of their corporate affiliates) file an application pursuant to Pub. Util. Code §§ 851-854, 1001 or 1013, such applicant shall disclose "(a) the fact that this proceeding was filed, (b) the fact that this proceeding was settled pursuant to the settlement agreement approved herein, and (c) the relationship between the applicant and this proceeding." This new language responds to the concerns expressed on page 27 of D.04-06-017.

In addition, in a memorandum concerning the revised settlement agreement that was filed on April 1, 2005, CPSD and the respondents have confirmed their intent that Conclusion of Law (COL) 7 in D.04-06-017 should be incorporated into the revised settlement agreement. That COL, which was based on the discussion appearing at pages 21-22 of the decision, stated:

"The settlement agreement should be modified to provide that once the restitution process (including preparatory work by Rosenthal) has begun, neither the Commission nor CPSD will have any obligation for any reason to return to respondents the $50,000 payment intended for restitution purposes, as described in ¶1.2.1 of the settlement agreement."

The other reservations about the December 9, 2003 settlement agreement expressed in D.04-06-017 concerned CPSD's promise that upon the withdrawal of its protest to the Blue Ridge application, "the Commission agrees . . . to resolve A.01-12-013 as an unopposed application." These reservations have now been addressed in D.04-12-021. In that decision, we noted that Blue Ridge had filed the supplement to its application required by D.04-06-017, and that this supplement "state[d] unambiguously that no litigation, investigation or administrative proceeding has been brought, or is pending against or related to, Blue Ridge, NOS or any of their respective affiliates in connection with the marketing or provision of local exchange services." (Mimeo. at 9-10.) In view of this representation, and the apparent absence of complaints about the marketing of long distance service by NOS and its affiliates since the signing of the so-called Winback Consent Decree in October 2003,⁹ we concluded in D.04-12-021 that "the management of Blue Ridge, which will be the same as that of the NOS companies, has sufficient integrity so as to be fit to render the services proposed here." (Id. at 22, Finding of Fact No. 22.)

We also concluded in D.04-12-021 that the CPCN granted to Blue Ridge should be conditioned upon the approval of a new settlement in this proceeding. With respect to this question, OP 1 of D.04-12-021 stated:

"On the same date, if any, that the Commission issues a decision approving a settlement agreement in Investigation (I.) 02-05-001 that supersedes the settlement agreement submitted by the parties therein on December 9, 2003, a certificate of public convenience and necessity (CPCN) shall be granted to Blue Ridge Telecom Systems, LLC (Applicant) to provide limited facilities-based and resold local exchange services in the service territories of Pacific Bell Telephone Company, Verizon California Inc., Citizens Telecommunications Company of California, Inc., and Surewest Telephone, subject to the terms and conditions set forth below."

With the approval herein of the revised settlement agreement of January 19, 2005, we deem this condition to be satisfied, so that the effective date of this decision will also be the date of issuance of Blue Ridge's CPCN.

The final issue remaining in this proceeding is the application for rehearing of D.04-06-017, which as a practical matter has been rendered moot by the approval herein of the parties' revised settlement agreement. On the question of how to handle the application for rehearing, the parties' memorandum of April 1, 2005 states:

"[A]fter the Commission approves the settlement in I.02-05-001, at which point the CPCN will be deemed issued to Blue Ridge, the Respondent will withdraw its application for rehearing of D.04-06-017."

We accept this representation by respondents, and find it an acceptable method of disposing of the application for rehearing of D.04-06-017.