E. Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and A. Kirk McKenzie is the assigned ALJ in this proceeding.
1. The settlement agreement appended hereto as Attachment A, which is dated January 19, 2005, supersedes the settlement agreement dated December 9, 2003 that was considered in D.04-06-017.
2. The January 19, 2005 settlement agreement is unopposed.
3. When implemented, the January 19, 2005 settlement agreement will achieve customer restitution, because approximately 1,400 Eligible Consumers will each receive a restitution payment of $25.00, for a total of $35,000.00.
4. As found in D.04-06-017, the restitution payments described in the preceding finding are consistent with those in other settlements the Commission has approved in recent years for telecommunications customers allegedly victimized by deceptive marketing, cramming and slamming.
5. When implemented, the January 19, 2005 settlement agreement will help to protect the public from unscrupulous marketing practices by telecommunications carriers, will serve to obtain refunds for customers allegedly injured by respondents' actions, and will help to promote a robust telecommunications market free from unfair competition.
6. In their memorandum concerning this proceeding filed on May 1, 2005, CPSD and respondents have stated that it is their intention that the requirements of Conclusion of Law (COL) 7 of D.04-06-017 should be incorporated into the January 19, 2005 settlement agreement.
7. The other modifications to the December 9, 2003 settlement agreement in this proceeding required by D.04-06-017 have been addressed either in the January 19, 2005 settlement agreement, or in D.04-12-021.
8. In the memorandum concerning this proceeding filed on May 1, 2005, respondents have represented that upon Commission approval of the January 19, 2005 settlement agreement and the issuance of the CPCN conditionally authorized in D.04-12-021, respondents will withdraw the application for rehearing of D.04-06-017 filed on July 13, 2004.
1. The proposed restitution payments described in Finding of Fact (FOF) 3 are reasonable.
2. The proposed fee of $7,825.00 to be paid to Rosenthal for its services as settlement claims administrator pursuant to the January 19, 2005 settlement agreement is reasonable.
3. The $2,900,000.00 that respondents have agreed to pay to the Commission to settle this proceeding, in addition to the restitution to be paid to Eligible Consumers, is reasonable and lawful for the reasons stated in D.04-06-017.
4. The provision in the January 19, 2005 settlement agreement requiring respondents to abide by the Call Unit Marketing and Sales Compliance Program included in the FCC TCU Consent Decree, for a period of two years following the Commission's approval of the January 19, 2005 settlement agreement, is reasonable.
5. The requirements of COL 7 of D.04-06-017, which CPSD and respondents have stated should be incorporated in the January 19, 2005 settlement agreement, are reasonable.
6. The January 19, 2005 settlement agreement appended hereto as Attachment A, with the addition of the provisions of COL 7 of D.04-06-017, is reasonable in light of the whole record, consistent with law, and in the public interest.
7. With the addition of the provisions of COL 7 of D.04-06-017, the January 19, 2005 settlement agreement appended hereto as Attachment A should be approved.
8. Upon the Commission's approval of the January 19, 2005 settlement agreement herein as set forth above, the condition in Ordering Paragraph 1 of D.04-12-021 should be deemed satisfied.
9. Today's order should be made effective immediately.
IT IS ORDERED that:
1. Subject to the addition of Conclusion of Law (COL) 7 of Decision (D.) 04-06-017, the settlement agreement appended to this decision as Attachment A is approved.
2. Pursuant to the foregoing paragraph, the condition set forth in Ordering Paragraph (OP) 1 of D.04-12-021 is deemed satisfied.
3. All billing agents, facilities-based providers, local exchange carriers, and all other persons and corporations subject to the jurisdiction of this Commission that provide services or facilities of any kind to any one or more of the respondents in this proceeding, shall cooperate fully in carrying out the provisions of the settlement agreement approved herein.
4. Within 45 days after the issuance date of this decision, the respondents shall execute the fee agreement with Rosenthal & Company LLC referenced in paragraph 2.1 of the settlement agreement approved herein, and shall make the payment specified in paragraph 1.2.1 thereof.
5. The Commission preliminarily determined that hearings would be required in this proceeding. Hearings have not been held, and the preliminary determination has been changed from "Yes" to "No."
6. This investigation remains open for the purpose of dealing with the application for rehearing of D.04-06-017 filed on July 13, 2004.
This order is effective today.
Dated , at San Francisco, California.
