6. Applicability of G.O. 168 Rules
This Part discusses applicability of the rules included in G.O. 168. Specifically we focus on the extent to which these rules may be the basis for court action by private individuals or public law enforcement officials.
Our intent in drafting the decision's applicability language was to ensure that individuals with grievances based on the G.O. 168 rules come to the Commission for resolution. The Commission offers a stable and predictable regulatory environment. We have expertise in the telecommunications industry, and we know how resolution of an individual matter may affect our continuing policies and programs. The Commission is especially well-equipped to interpret its rules, given that we adopt and regularly apply them.
The Commission's ability to provide consumers appropriate redress obviates any need for private litigation. We have staff dedicated to assisting consumers who have complaints about telecommunications carriers, and a consumer or group of consumers that files a formal complaint may seek penalties and restitution.147 Indeed, many parties that are participating in this proceeding - including TURN, Utility Consumers' Action Network ("UCAN"), Latino Issues Forum ("LIF"), and Greenlining Institute ("Greenlining") - have come to the Commission in an effort to seek enforcement of various consumer protection rules.
We are concerned that private litigation may undermine the effectiveness of the Commission. In People ex rel Orloff v. Pacific Bell, the Supreme Court of California rightly observed that a court action brought by a private party may present "a risk of a lack of coordination with PUC officials," and a "danger that the civil action might undermine an ongoing regulatory program or policy of the PUC."148
These considerations convince us to include limiting language regarding applicability of the rules in Part 2 (Consumer Protection and Public Safety Rules). The applicability section of Part 2 stated that "[t]hese consumer rights and regulations shall not be interpreted to create a private right of action or form the predicate for a right of action under any other state or federal law."149 We have the ability to preclude private action when it would have the "effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy."150
Parties to this proceeding criticize the applicability language in two different ways. On the one hand, the AG voices concerns that the private right of action language goes too far and may limit the AG's ability to bring cases under the Unfair Competition Law, Bus. & Prof. Code § 17200 et seq.151 A violation of another statute or regulation may qualify as an unlawful act that is actionable under the Unfair Competition Law, and the AG fears that our applicability language may limit its authority to protect consumers from violations of the proposed rules.152 On the other hand, the Wireline Group calls for tightening language regarding the private right of action and reasonable consumer standard even further, as it requests that we "expressly state that the rules should only be construed by the Commission."153 It also requests that we extend the modified language to the slamming rules.154 We assess and make modifications in response to both sets of comments below.
We first clarify that we believe that we should not restrict the AG's ability to use the Unfair Competition Law to bring suit against a carrier. Collaboration with other law enforcement officials is to our mutual benefit. For example, penalties under the Unfair Competition Law and P.U. Code are cumulative, so coordination with local law enforcement officials may afford greater relief to California consumers. Moreover we concur with the California Supreme Court's assessment that, as compared with a private right of action, "there is a diminished likelihood that an action . . . initiated by the district attorney would undermine the ongoing regulatory authority of the PUC. . . ."155 The Court reasons that multiple statutes "clearly indicate that . . . the PUC and public prosecutors are expected to coordinate their efforts to accomplish the most efficient and effective means of remedying any misconduct of the public utility."156
We modify our applicability language to make our position clear. G.O. 168, as revised, states that "[t]hese rules shall not be interpreted to create any new private right of action, to abridge or alter a right of action under any other state or federal law, or to create liability that would not exist absent the foregoing rules." Also we modify our applicability language that specifically addresses our relationship with the AG. The new language provides that the "Commission intends to continue its policy of cooperating with law enforcement authorities to enforce consumer protection laws."
Our response to the Wireline Group's comments is mixed. We cannot support its first proposal, which would have us add that "construction and application of these rules by any other body would be inconsistent with and interfere with the Commission's regulatory purpose and authority."157 This recommendation goes too far. With respect to the reasonable consumer standard in particular, we agree with the AG that we have no "specialized expertise that would suggest [we are] more capable than the courts to define a term used generally in consumer protection law."158 We recognize that California courts already have defined the term "reasonable consumer,"159 and we do not seek to create a scenario where "carriers and the public would have to operate under two different standards for the same concept."160
We do, however, agree that we should extend our language regarding private right of actions and the reasonable consumer standard to all the rules adopted in the General Order. This extension provides consistency among the rules, as we have the same response to these issues in all rules that we adopt. Also our modifications to the applicability language sufficiently addresses the AG's concern that this extension would "weaken[] any enforcement possibilities."161 Thus we modify language regarding private right of actions and the reasonable consumer standard, and extend this text to all rules included in G.O. 168.
147 Additionally our intervenor compensation program provides compensation for the reasonable costs incurred by intervenors as a result of their participation in CPUC proceedings. Awards of compensation are paid by the public utility (or utilities) that were the subject of the proceeding in which the intervenor participated. If the proceeding applies to an entire industry, then the awards of compensation are paid by the CPUC out of fees it collects from utilities.
148 31 Cal 4th 1132, 1155 (Cal. 2003).
149 We included no equivalent provision in Part 3 (Rules Governing Slamming Complaints).
150 San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 918 (Cal. 1996).
151 AG Opening Comments, p. 11. DRA echoes these concerns. Reply Comments of the Division of Ratepayer Advocates on Commissioners Peevey and Kennedy's Proposed Decision on Telecommunications Consumer Bill of Rights, pp. 2-3 (Jan. 23, 2006) ("DRA Reply Comments").
152 AG Opening Comments, p. 11.
153 Wireline Group Opening Comments, p. 6. CTIA provides more general support for the private right of action language included in the decision. Reply Comments of CTIA - The Wireless Association on Proposed Decision of Commissioners Kennedy and Peevey, p. 3 (Jan. 23, 2005) ("CTIA Reply Comments").
154 Id.
155 Orloff, 31 Cal. 4th at 1151.
156 Id. (citing Cal. Govt. Code § 26509(d)(32), which permits the Commission to defer disclosure of investigative materials to public prosecutors in the event such disclosure would jeopardize the Commission's own investigation or other duties, as an example of one such statute).
157 Wireline Opening Comments, p. 7.
158 AG Reply Comments, p. 2.
159 See, e.g., Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 504-513 (Cal. 2003) (applying .the reasonable consumer standard to a case brought under the Unfair Competition Law).
160 Id. at 2-3.
161 Id. at 2.
