3. Review of Record Evidence
The AG, Division of Ratepayer Advocates ("DRA") (previously known as the Office of Ratepayer Advocates), and The Utility Reform Network ("TURN"), along with other members of Consumer Groups, advocate adoption of new rules and argue that the data they present justify these rules.22 In rebuttal, Wireless Carriers and the Wireline Group contend that the evidence presented by TURN and DRA is flawed and fails to justify new rules.23 The carriers also offer evidence that they say demonstrates that additional rules are unnecessary and may result in net harm to consumers.
This Part describes parties' arguments and supporting evidence in greater detail below. In response to issues raised by consumer representatives, we make significant modifications to this Part in order to clarify our analysis and conclusions.
TURN, DRA, and other consumer organizations primarily rely upon the following pieces of evidence: consumer complaint records, survey data, enforcement actions, and anecdotal evidence. We review each piece of this evidence in turn.
The primary complaint data at issue in the proceeding are telecommunications consumer informal complaints received by the Commission's CAB between 2000 and 2004.24 DRA witness Lynn Maack offers an analysis of these data and finds that CAB received 165,415 complaints during that period, three-fourths of which (124,579) were complaints about wireline carriers and one-fourth of which (40,836) were complaints about wireless carriers.25
Maack finds that the number of individuals complaining about wireless service is small compared to the number of wireless customers in California. Even assuming that all these complaints report actual grievances,26 wireless consumers complaining to the Commission in 2004 constituted just 0.04% of the entire universe of the more than 23 million wireless customers in California.27
Maack also reviews these complaints by subject matter. He finds that complaints about billing are the single largest complaint category for both wireline (56%) and wireless (74%) carriers. Service complaints are the second largest complaint category for wireline (17%) and wireless (12%) carriers, respectively.28
DRA's analysis pays special attention to complaints regarding wireless carriers' disclosures of prices, terms, and conditions of service plans and products. "Disclosure," however, is not a specific category under which CAB records complaints, so DRA had to review descriptions of individual complaints to identify disclosure-related complaints.29 DRA sorted a CAB-generated list of all complaints filed in 2004 into major categories and sub-categories, from which sixteen combinations of categories and sub-categories were selected for review. All complaints in the fourteen categories with relatively small numbers of complaints were reviewed, and the remaining two categories, which held the largest numbers of complaints, were sampled.
From this review, DRA concludes that approximately eleven percent of all wireless complaints to CAB could be characterized as involving disclosure issues.30 Given that wireless consumers complaining to the Commission in 2004 constituted just 0.04% of all wireless users in California,31 this statistic means that less than 0.004% of California wireless consumers reported disclosure issues to the Commission.
This data is the core evidence in this proceeding, and resolving the issues requires that we determine what this complaint data means and whether it is capable of supporting proposals for more prescriptive rules. We do not dismiss the complaint data, nor do we impose a new evidentiary standard for this data (as alleged by TURN and DRA). Instead the complaint data is evaluated in light of our standard procedures.
We first find that lack of statistical validity does not warrant dismissing complaint data altogether. We recognize it is impossible for complaints to constitute a statistically valid study: There is no sample drawn from the universe of California consumers; the analysis is done from the universe of complaints to the CPUC.32 Yet the Commission sometimes is able to place incidence of specific complaints into a larger context that justifies regulatory action.
A common analytic step taken to overcome the limitations of specific data is to compare the incidence of complaints in one company or service with complaint rates in another company or in other service areas. For example, we currently examine the rates of reported carrier switching disputes to identify companies involved in disputes who's ratios exceed industry norms. We then investigate whether companies with abnormal dispute rates are following the procedures required to document the validity of service switches.
In this proceeding, however, we are unable to draw similar conclusions or take such actions. We lack critical information on both 1) the specific issues identified by the complainants, and 2) an appropriate context that provides general information on a normal levels of complaints (against which we could compare our complaint data). Each of these problems is discussed below.
First, many complaints were not described with enough specificity to determine whether they raised issues that could or should be addressed by the proposed consumer rules. Billing "complaints" provide a good example of this problem. It is unclear whether we should be concerned by DRA's finding that billing issues are the most frequently cited cause of consumer complaints to CAB for both wireless and wireline carriers,33 because the billing complaints are insufficiently analyzed to permit us to draw any valid inferences as to the substance of those complaints. Consequently we do not know if the proposed rules would address the subject matter of customer concerns. Moreover, to the extent billing complaints addressed wireless carriers' rate structures or rate levels, those matters are preempted by federal law.34
There also is no indication that DRA validated that "complaining" consumers were reporting actual grievances.35 Currently our database cannot distinguish whether an inquiry registered in our database is regarding a new complaint, or simply following up on a matter that is one among many in our significant backlog of consumer complaints.36 Our database also does not provide any means of assessing whether there was any validity to a consumer's complaint.37 We could find some indication of the validity of the consumer's complaint in how a complaint is resolved, but currently our database is incapable of effectively recording what, if any, related resolution occurs.38 This information that we lack about complaints is critical, and, therefore, we do not find it unreasonable that we expectDRA to validate the complaints.39
The significant lack of specificity regarding consumer complaints prevents us from using the "tip of the iceberg theory." We should only use this theory, which is based on the presumption that only a small percentage of aggrieved customers actually will report a complaint,40 when there is a nexus between the customer complaint and a specified carrier practice that a new rule is directed to remedy. Prudent practice dictates that the Commission establish the nexus before considering whether complaints warrant new regulation or enforcement actions based upon existing statutes or rules.
We, however, do not dismiss the "tip of the iceberg" theory out of hand. Despite comments to the contrary,41 we recognize that the theory may have value in other cases where there is a more clearly defined nexus between the customer complaint and carrier practice. Our intent here is only to determine what effect a proposed regulation will have on a particular carrier practice, and we cannot use this "tip of the iceberg" theory to justify adoption of regulations that respond to problems that have not been fully identified.
Second, there is no reliable baseline context against which to compare the observed level of consumer complaints. During the hearings, Assigned Commissioner Kennedy repeatedly asked TURN and DRA experts to define a normal level of consumer complaints with which the observed level of complaints could be compared to determine if there were problems requiring regulatory intervention. Neither expert offered any substantive response to this question, though each admitted that any industry the size of the telecommunications industry was bound to have some unavoidable complaints.42
TURN, along with other members of Consumer Groups, misconstrues Commissioner Kennedy's interest in the context of complaints, when they argue that it is unfair to require them to provide a "single number as a threshold of complaints."43 Indeed, we agree with TURN's assertion that "it is improper regulatory policy to expect that there is a significant numerical threshold above which intervention is automatically warranted and below which is not."44 We do not hold that there is any "magic number" that constitutes a threshold for action.
Like TURN, we acknowledge that the analysis is "more subtle": A "small number of complaints about all the same issue and carrier at once may indicate that Commission action is warranted, but the same action may be warranted by a large number of complaints that take a year or more to `pile up.'"45 The important analysis is not one that focuses on a threshold, but one that looks at how complaints fit into a broader context, which may require a subtle analysis. Here, however, we have no such external context in which we can evaluate the level of complaint data.
The only context we have comes from the complaint data itself. Specifically we can compare wireline to wireless complaints, and consider what specific topics generate the greatest percentage of complaints.
What we find when we make this internal comparison is that wireline complaints run at approximately three times the frequency of wireless complaints, while the number of wireless customers in California is approximately equal to the number of wireline customers in the state.46 This result is counter to standard expectations. Since wireless technology is only about ten years old and wireline technology is over a hundred years old, one would expect that wireless technology would trigger more complaints than wireline. In addition, assuming regulations provide effective consumer protection, one would expect that wireless service, which is less regulated than wireline service, would trigger more complaints.
So we must ask: What does this lower complaint frequency mean? The complaint data suggest that wireless consumers are less likely to have telecommunications problems than wireline consumers, and that the wireline regulations do not have much effect on customer complaints. Thus, under our standard procedures for analyzing complaint data, we would conclude that we should focus our regulatory energies on wireline service, not wireless. Parties that want to extend more rules to wireless carriers did not provide an alternate explanation for these data.
Other key elements of the consumer complaint data also cut against certain proposed new rules. For example, Maack's analysis indicated that consumer complaints to CAB about "abusive marketing" were minimal for both wireline and wireless carriers, far fewer in number than complaints about billing, service, or "other matters."47 The complaint data effectively cut against the suspended rules' concern with carriers' marketing practices.
In conclusion, as TURN's own witness admits, the complaint numbers by themselves do not justify new rules.48 It is unclear that the complaints are capable of justifying any policy recommendations, given their lack of specificity and our inability to place the complaint data in a larger context that supports new rules. Moreover, even assuming we can take some meaning away from the complaint data, what meaning we find suggests that we should avoid imposing more prescriptive rules on telephone companies.
Consumer representatives also make use of various types of survey data to bolster their case for the necessity of new regulations. These surveys include, among others, a 2003 nationwide survey of 3,037 adults conducted for AARP; a 2004 survey of New York State residents also conducted for AARP; and a 2001 telephone survey of California consumers conducted for the CPUC.49 The following discussion reviews some of the surveys in this proceeding, and identifies factors that make us reluctant to place significant weight upon them.
2003 nationwide AARP survey
The nationwide AARP survey demonstrates why it may be difficult to discern what we should take away from survey results. The AARP data were presented in skewed fashion to convey the impression that there was widespread dissatisfaction with wireless service, when the actual data may have revealed just the opposite. Respondents were classified as either "highly satisfied" or "less than highly satisfied" with their wireless service, but the survey did not reveal how many respondents were satisfied overall.50 This omission likely inflates the degree of apparent dissatisfaction and makes it difficult to draw a conclusion.51
2004 New York State AARP survey
Other objections apply to the use of the New York AARP data. The number of wireless users in the sample was so small as to make inferences from their responses highly unreliable.52 Also drawing conclusions concerning California consumers based on a survey of New York consumers requires the use of care and judgment. Taken together, the small sample size and focus on New York limit the advisability of relying on this data for setting California policies.
TURN is critical of our review of survey data collected outside of California. It argues that a requirement that evidence of dissatisfaction be specific to California consumers is legal error. TURN states that the Commission "cannot ignore concrete evidence of consumer dissatisfaction, either surveys or national complaint data."53
These statements indicate that TURN misunderstands how the Commission considers and assesses survey data. The Commission does not ignore national survey and complaint data. Instead the Commission weighs this evidence in light of the information in the entire record. In particular, the low rates of wireless complaints received by the Commission caution against relying heavily on surveys that document dissatisfaction in other states.
2001 California Telephone Survey
The 2001 California telephone survey data are five years old now. So even if the survey was sufficiently well-conducted to permit valid inferences to be drawn from the results, the age of the information makes it of questionable value given the explosive growth of wireless phone use during the past five years.
Unfortunately the survey also suffers from significant methodological shortcomings. These shortcomings include survey questions that lump together wireless and wireline problems, a failure to separate wireless users from non-users, and a general bias in favor of encouraging respondents to report dissatisfaction.54
The small sample size makes the validity of any inference drawn from this survey even more questionable. For example, the sample contains only eighteen consumers who reported having received a sales call from a cell phone company at their home during the previous year and only two consumers who reported having authorized service or equipment changes as a result of a sales call from a cell phone company.55
Consumer representatives further rely upon multiple enforcement actions that have occurred outside of California as examples of a greater pattern of abuse in the telecommunications industry. These actions, however, also may be characterized as providing evidence in support of fewer new rules, rather than more.
The existence of out-of-state lawsuits against telecommunications carriers is one such example that may cut against organizations advocating more California rules. An argument may be made that these lawsuits merely demonstrate that "when perceived issues arise, there are means available for addressing them."56
Also some of the nationwide enforcement actions may eliminate the need for further rules. For example, TURN cites a settlement between wireless carriers and the Attorneys General of thirty-two states as evidence that new rules are necessary in California.57 The settlement is memorialized in an Assurance of Voluntary Compliance ("AVC") that covers point of sale disclosures, coverage disclosures, fourteen-day return periods for wireless handsets, advertising, separate disclosure of taxes and surcharges on consumer bills, and mechanisms for handling customer inquiries and complaints.58 For practical reasons described by industry experts, wireless carriers have committed to adhere to the principles of the AVC in California.59 Thus California consumers will benefit from the settlement even though the California Attorney General ("AG") was not a party to the action.
The AG replies that the AVC does not form any basis to suggest that consumer rules are not needed in California. It maintains that the AVC is not a set of "comprehensive consumer protection rules, is not applicable to California, and is not relevant to this proceeding."60
The AG misinterprets our actions and reasoning. We do not claim that the AVC forms a basis to suggest that no consumer protection rules are needed in California. In contrast, we find that there are sufficient existing rules that provide protection for California consumers, and that the national approach embodied in the AVC obviates the need for additional state-specific rules that address issues that are being addressed nationally in an effective manner.
Several parties provide anecdotal evidence as additional support for more regulation. This Part reviews various forms of anecdotal evidence submitted to the Commission and discusses how we should respond to this evidence.
Disability Rights Advocates asks us to adopt a group of new rules specifically designed to make it easier for people with disabilities to receive information from carriers and present complaints to carriers.61 No evidence was quantified as to the extent of the alleged problem, and the scope of the proposed solution is undefined.62
Luis Arteaga testified that Spanish speaking customers face a variety of problems. He noted that although Verizon Wireless communicates well in Spanish, "they are certainly not the rule when it comes to many other carriers."63 Additionally he stated that having materials in Spanish is "often incomplete."64 He described situations in which at a cell phone kiosk, a Spanish speaking customer is "handed a contract which they cannot read."65 Arteaga also mentioned that customers often are told that the phone works in Mexico, and "[w]hen the person chooses to call Mexico or travel to Mexico, they're seeing outrageous phone bills."66
DRA's witness Lynn Maack gave testimony concerning advertisements that contain information on different wireless services, but contain some information in smaller fonts. He argued that this practice warrants the extension of current rules, which require that written orders be in ten-point font.67 Barbara Alexander, testifying on behalf of TURN, stated that customers are irritated by bills that conflate mandatory taxes and fees with discretionary charges.68
Carriers address this testimony in different ways. The Wireless Carriers respond to DRA by arguing that working with the federal government is the best approach to ensuring compliance with Section 251(a) and Section 255 of the Communications Act.69 The Wireline Group replies that DRA's proposals came in at the last minute, fall outside the scope of the current phase of this proceeding, and fail to make a case that the benefits outweigh the costs.70
Michael Bagley of Verizon Wireless responded to Luis Arteaga's praise of Verizon Wireless's bilingual marketing by noting that Verizon Wireless does not conduct these marketing practices for regulatory reasons. Instead he stated that Verizon Wireless is "looking at a community that is a very large opportunity in the marketplace for us to distinguish ourselves and be a leader. We want those Spanish-speaking customers to come to Verizon Wireless."71
Testifying for CTIA, UC-Berkeley Professor Michael Katz, responded that even if some carriers are "bad actors," most carriers find that their "investments serve as `hostages' that create economic incentives to maintain good reputations with customers."72 He further contended that the "state level rules would impose costs and unintended consequences on all providers and their customers."73 He concluded that "Ms. Alexander provides no evidence or argument that the existing laws are insufficient to deal with any exceptionally bad service providers that might exist, not that broad policies are preferable to targeted policies."74
We find ourselves in agreement with the arguments of Katz. While some proposals made on behalf of the above anecdotal evidence may have merit, we should not adopt extensive new rules solely on the basis of anecdotal evidence. Without clear data on the extensiveness of a particular harm, the Commission has little information to assess what a specific incident means. Prudent policy, however, would seek to ensure that a regulatory response does not impose costs on carriers and their customers that outweigh benefits of reducing inappropriate behavior. Without data on the scope of the inappropriate behavior, one cannot make such an assessment of benefits and costs. Without such an assessment, it is not prudent to adopt sweeping new rules.
On the other hand, the anecdotal information, combined with our low levels of complaints, suggests that targeted enforcement actions and consumer education programs can offer a positive response to issues identified by witnesses. Targeted enforcement actions can stop bad actors, and targeted consumer education programs can provide consumers with specific knowledge they can use when making choices that best serve their telecommunications needs. These alternative responses to evidence of consumer dissatisfaction are discussed in Parts 13 and 14.
Even if we accept the contention that there are significant problems that can be remedied by the Commission, it still would not be clear that we should create new rules in response to these problems. Rules can cause their own problems, which may overshadow any benefits bestowed upon consumers. Katz testified that the ability of regulation to improve efficiency and consumer economic welfare is very limited except in certain well-defined circumstances, namely those characterized by externalities (or missing markets) or certain types of asymmetric information. Even an imperfectly competitive market is likely to produce better outcomes for consumers than will regulation.75
TURN contests this reliance on the testimony of Katz. It claims that we have failed to adequately consider the testimony provided by TURN's witness and that this testimony "debunks" Katz's testimony.76 Testifying on behalf of TURN, Barbara Alexander argues that support for Katz's analysis "relies on economic theory more relevant to price regulation, which is not an issue pending before the PUC."77 Addressing many of the points raised by Katz, Alexander develops an elaborate argument that relies in large part on the observation that "[a]ny attempt to rely on the `market' to satisfy consumer satisfaction with disclosures will of necessity mean that some consumers will `lose' in choosing the competitor that fails to provide the necessary disclosures."78
We find Alexander's arguments unpersuasive. Her arguments appear to largely rely on an unconventional view that the markets mainly affect price, and do not have a major affect on quality, customer satisfaction, and information needs. We do not agree with this view of how telecommunications markets function. In contrast we find Katz's testimony more convincing, and more consistent with our view of how California telecommunications markets function.
For example, we agree with Katz's admonition that rules can have unintended consequences. Consider, for example, proposed requirements intended to improve readability of documents provided by phone companies. Multiple parties to this proceeding encouraged adoption of rules that would require a contract (or an accompanying summary document) to highlight "key rates, terms, and conditions,"79 and various documents (excluding bills) to use at least a ten-point font.80 While no doubt well-intentioned, there are several ways that rules such as these, however, may inadvertently harm consumers.
First, rules may impose additional compliance costs on transactions. Undisputed testimony in the record establishes that compliance is expensive when it requires national carriers to create "California only" practices, documents and systems. A rule that requires changes in billing formats could "trigger millions of dollars of systems development and modification costs."81 Such costs would likely be passed on to carriers' customers.82
Second, rules may restrict the number of service options available to consumers. In his opening testimony, U.S. Cellular's witness Bradley L. Stein testified that enforcement of G.O. 168's ten-point type requirement alone would raise this rural carrier's costs to the point that it would exit the California market rather than attempt to comply.83 Thus, in particular, imposing additional regulations may have the unintended consequence of reducing the number of competitors, and thus decreasing service offerings in the markets where these services are especially needed.
Third, rules may induce confusion. With respect to the proposed rule requiring "key rates, terms and conditions" to be highlighted, the phrase "key rates, terms and conditions" was not defined in a clear way, so the proposed rule likely would produce confusion among carriers. Carriers point out that they would consider ensuring compliance by just highlighting a consumer's entire bill.84 Although this action would comply with the poorly written regulation, it would provide no benefits: Consumers would simply receive a contract entirely printed in a "bold" font.
In conclusion, while there are contradictory statements in the record regarding the costs of complying with additional proposed rules,85 the balance of testimony favors the carriers' position that new rules may impose significant costs on carriers. In the absence of a convincing showing that most prescriptive rules would effectively respond to real problems, we decline to impose most of the rules included in the original G.O. 168. Specific areas where we deem new rules appropriate and necessary are discussed in further detail below.
22 California Attorney General's Opening Comments In Opposition To The [Draft] Decision Issuing Revised General Order 168, pp. 16-27 ("AG Opening Comments"); Opening Comments of The Utility Reform Network, Consumer Federation of California, National Consumer Law Center, Consumers Union and CALPIRG, on the Proposed Decision of Commissioners Peevey and Kennedy, pp. 10-16 (Feb. 3, 2006) ("Consumer Groups Opening Comments"); Comments of the Division of Ratepayer Advocates on Commissioners Peevey and Kennedy's Proposed Decision on Telecommunications Consumer Bill Of Rights, pp. 7-18 (Jan. 17, 2006) ("DRA Opening Comments").
23 Opening Comments of Cingular Wireless, Cricket Communications, Inc., Nextel of California, Inc., T-Mobile, Sprint Telephony PCS, L.P., Sprint Spectrum L. P., As Agent For Wireless Co., L.P., dba Sprint PCS, Verizon Wireless and CTIA-The Wireless Association On Proposed Decision Of Commissioners Kennedy And Peevey, pp. 3-6 (Jan. 17, 2006) ("Wireless Carriers Opening Comments"); Consolidated Opening Comments of the Wireline Group Opening Comments on Proposed Decision of Commissioners Peevey and Kennedy, pp. 3-5 (Jan. 17, 2006) ("Wireline Group Opening Comments").
24 Consumer representatives also referred to FCC and FTC complaint data. TURN Opening Brief, pp. 12-13; California Attorney General and Office of Ratepayer Advocates Reply Brief (July 22, 2004), p. 47. This evidence, however, has only modest value in a state-specific regulatory proceeding, given that we have no way of knowing whether the complaints address issues governed by state and federal law. Reply Brief of Wireless Carriers (Nov. 7, 2005) ("Wireless Carriers Reply Brief"), p. 11.
25 Prepared Testimony of Lynn A. Maack in the Telecommunications "Bill of Rights" Proceeding (Aug. 5, 2005) ("Maack Testimony"), p. 3.
26 We explain below that this assumption is a significant one.
27 DRA Opening Comments, p. 13.
28 Maack Testimony, p. 3.
29 DRA classified a complaint as "disclosure-related" if it the complainant specifically indicated that the carrier provided insufficient, misleading, or no information about their service or equipment. Not included were the many complaints in which the complainants indicated only that the bill did not match the service they ordered.
30 Maack Testimony, p. 6.
31 DRA Opening Comments, p. 13.
32 DRA responded to our previous question of "whether DRA's review of complaint data was statistically valid" by stating that there is "nothing in the record to show that complaints were selected in a biased way" and similarly argues that our criticism of "sample size" is mistaken. Id. at 12. DRA's response indicates to us that we may not have accurately communicated our concerns. We did not intend to accuse DRA of taking a biased sample. Although "bias" or "inadequate sample size" would be a reason that would prevent one from drawing a valid statistical conclusion, the problems confronted here - the fact that the data reviewed is limited to a pool of complainants - is more basic. Reaching conclusions for wireless customers based on the complaint data is not a statistically valid exercise.
33 Maack Testimony, p. 4.
34 See 47 U.S.C. § 332(c)(3)(A) ("[N]o State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.").
35 Reply Testimony of John McLaughlin (Sept. 16, 2005) ("McLaughlin Reply Testimony"), p. 3; Reply Testimony of William Schulte and Robert Johnston (Sept. 16, 2005) ("Schulte and Johnston Reply Testimony"), p. 3.
36 Since an inquiry regarding the status of a complaint may be logged as a complaint, it is likely that DRA's estimates regarding "substantive" complaints is inflated. See DRA Opening Comments, p. 14 (failing to recognize this current limitation in our complaint database).
37 Schulte and Johnston Reply Testimony, p. 4.
38 We intend to correct these short comings in our new complaint database and future procedures, assuming we are granted the budget to fund it by the Legislature. DRA apparently also was unaware of this limitation to our database. See DRA Opening Comments, p. 14 (claiming that it could identify the number of complaints resolved in favor of the complainants).
39 See Id. at 13 (contending that our request that it should "validate" complaints imposes "a test for consumer complaints that is unreasonable").
40 See TURN Opening Brief, p. 6 (arguing that "[i]t is well known that only a small percentage of aggrieved customers actually seek help from even their own carriers, much less file a complaint with a state or federal government agency or pursue the dispute into a formal lawsuit"). Barbara Alexander, testifying on behalf of TURN, maintained that "the tip of the iceberg theory . . . has motivated all state regulators with respect to how they handle complaint data." Tr. 1311 (Barbara Alexander, TURN). See also Direct Testimony of Barbara R. Alexander, pp. 36-37 (Aug. 5, 2005) (discussing this theory at length) ("Alexander Direct Testimony").
41 AG Opening Comments, p. 22 (arguing that we have improperly dismissed the "tip-of-the-iceberg" theory). See also Consumer Groups Opening Comments, pp. 15-16 (contending that we have incorrectly interpreted the tip of the iceberg theory).
42 Tr. at 1305-1311.
43 Consumer Groups Opening Comments, p. 14. See also AG Opening Comments, p. 21 (arguing that there is no "magic number of complaints needed to prove an improper act is being committed").
44 TURN Opening Comments, p. 15.
45 Id.
46 Maack Testimony, p. 5.
47 Maack Testimony, p. 4.
48 Tr. at 1323.
49 In its Opening Comments, DRA describes a recent Consumers Union survey that finds customer dissatisfaction with wireless service in California. See DRA Opening Comments, p. 1 (citing Consumers Union, Three Steps to Better Cellular, Consumer Reports, Vol. 68, No. 2 (Feb., 2003) pp. 15-18). This survey, however, is not part of the record in this proceeding, and even if were, it would not support the need for specific regulations by itself.
50 Id. at 10.
51 Although TURN defends the AARP survey, TURN itself admits that the survey alone does not provide a basis for setting policy: "While TURN would not suggest that the Commission base any action solely on these surveys, when combined with the other evidence of consumer dissatisfaction, those surveys add another piece to the puzzle." TURN Opening Comments, p. 16 (citing TURN's Opening Brief, p. 11).
52 McLaughlin Reply Testimony, p. 9.
53 TURN Opening Comments, p. 14.
54 Id. at 5-9.
55 Katz Reply Testimony, pp. 19-20.
56 Wireless Carriers Reply Brief, p. 12.
57 Assurance of Voluntary Compliance (June 25, 2005), http://www.nasuca.org/CINGULAR%20AVC%20FINAL%20VERSION.pdf.
58 Id.
59 See, e.g., Declaration of Henry J. Herman in Response to May 2, 2005 Assigned Commissioner's Ruling (Aug. 5, 2005) ("Herman Declaration"), pp. 5-14 (providing a detailed description of difficulties in creating state-specific billing regimes on behalf of Nextel).
60 AG Opening Comments, p. 26. The AG specifically notes that the "settlements . . . are enforceable only in those states as to practices occurring in those locations by those three carriers." Id. The AG, however, fails to consider that AVC could be enforceable in California if the AG entered into a settlement with the carriers.
61 Opening Brief of Disability Rights Advocates, pp. 13-15 (Oct. 24, 2005) ("Disability Rights Advocates Opening Brief").
62 In Opening Comments, Disability Rights Advocates states that a reason it failed to cite quantifiable data is because "such data does not exist." Comments of Disability Rights Advocates, p. 11 (Jan. 17, 2006) ("Disability Rights Advocates Opening Comments"). Consequently Disability Rights Advocates requests that we "direct production of a disability report comparable to the requirement of the in-language report" commissioned later in this decision. Id. We, however, decline to commission production of a disability report for two reasons. First, we expect that we already will be learning a great deal more about the special issues faced by individuals with disabilities, since we designate them to be a group that we will be focusing on in our educational campaign (described in Part 13.3). Second, as noted by T-Mobile, the Telecommunications Act "provides a national framework specifically designed to provide access to individuals with disabilities," and to "the extent that DRA believes that there is a problem in the enforcement structure or the structure of the national framework set out in the Act and its accompanying regulations, those matters would be more appropriately addressed at the FCC." Reply Comments of Omnipoint Communications, dba T-Mobile, on the Proposed Decision of Commissioners Peevey and Kennedy, p. 4, n.19 (Jan. 23, 2006) ("T-Mobile Reply Comments").
63 Tr. at 1401. But see Reply Comments of Cricket Communications, Inc. on the Proposed Decision of President Peevey and Commissioner Kennedy, p. 1 (Jan. 23, 2006) (stating that "Cricket has provided its Spanish-speaking customers with in-language versions of its informational rate plan brochure as well as the terms and conditions of its service").
64 Tr. at 1401.
65 Id.
66 Id.
67 See Cal. Pub. Util. Code § 2890(b) (discussed in Maack Testimony, p. 15).
68 Reply Testimony of Barbara R. Alexander (Sept. 16, 2005) ("Alexander Reply Testimony"), p. 21 (on behalf of TURN).
69 Wireless Carriers Reply Brief, p.23.
70 Consolidated Reply Brief of the Wireline Group (Nov. 7, 2005) ("Wireline Group Reply Brief"), p. 8.
71 Tr. at 1421.
72 Katz Reply Testimony, p. 38.
73 Id. at p. 39.
74 Id. at p. 39.
75 Id. at pp. 7-8.
76 TURN Opening Comments, p. 13.
77 Reply Testimony of Barbara Alexander on Behalf of TURN, p. 8
78 Id., p. 10.
79 See Interim Decision Issuing General Order 168, Rules Governing Telecommunications Consumer Protection, Decision 04-05-057, App. A, Rule 3(e) (May 27, 2004) ("Key rates, terms and conditions shall be highlighted (e.g., printed in larger or contrasting type, underlined, bolded, enclosed within text boxes, or some combination of those or other comparable methods), either in the contract or in an accompanying summary document.").
80 Stayed rules would require ten-point type in any written confirmation, authorization, order, agreement, or contract used in marketing; any contract for service; and any notice given to customers. Id. at App. A, Rules 1(h), 2(c), 3(e) and 8(e).
81 Katz Opening Testimony, p. 29.
82 Id. at 28 (observing that costs stemming from state-specific regulation "costs would be passed on to consumers, in whole or in part, in the form of higher quality-adjusted prices").
83 Opening Testimony of Bradley L. Stein (Aug. 5, 2005) ("Stein Testimony"), p.10.
84 See, e.g., Comments of Omnipoint Communications, Inc., Dba T-Mobile (U-3056-C) on the May 13, 2004 Draft Alternate Decision of Commissioner Brown Regarding Rules Governing Telecommunications Consumer Protection, p. 10 ("Given that almost every provision of a contract could satisfy that test, the rule could arguably lead a prudent carrier to consider most everything to be `key.' On a more basic level, the definition would now require that the rates for every service that the consumer might use, regardless of how remote or incidental, be highlighted. Thus, all of the carriers' efforts to make contracts and collateral more accessible to consumers would be rendered useless as carriers struggle not to run afoul of these "command and control" dictates.").
85 A number of carrier witnesses testified in support of the carriers' assertion that the original G.O. 168 rules would impose significant costs on them. See, e.g., Katz Opening Testimony; Katz Reply Testimony; Herman Declaration; Testimony of Marni Walden (on behalf of Verizon Wireless) (Aug. 5, ,2005). Consumer representatives, however, reply that these testimonies merely provide "threats of what `might' happen if these rules go into effect." TURN Opening Brief, pp. 22-23. See also AG Opening Comments, pp. 28-32 (criticizing cost data with respect to specific rules in the original General Order); DRA Opening Comments, p. 1 ("No carrier submitted any reliable cost data in this proceeding.").
