8. Commission Information Requests
This Part reviews the Commission's ability to request information from telecommunications carriers. We first describe our statutory authority to request such information. We then evaluate two proposals for regulatory action. First, we discuss modification of a rule regarding carriers' obligations to provide requested information. Second, we consider establishment of a process for resolving related disputes when these disputes arise outside of a formal proceeding.
Commission staff may require entities subject to Commission jurisdiction to comply with reasonable requests for information. P.U. Code § 314 states that a Commission employee may "at any time, inspect the accounts, books, papers, and documents of any public utility" so long as the employee, if not a Commissioner or Commission officer, "produce[s], under the hand and seal of the commission, authorization to make the inspection."180
The P.U. Code is clear about the obligations of utilities to supply such information, even if supplying the information requires preparation of reports or materials that do not already exist. P.U. Code §§ 581, 582 and 584 enunciate the following utility responsibilities:
581. Every public utility shall furnish to the commission in such form and detail as the commission prescribes all tabulations, computations, and all other information required by it to carry into effect any of the provisions of this part, and shall make specific answers to all questions submitted by the commission.
Every public utility receiving from the commission any blanks with directions to fill them shall answer fully and correctly each question propounded therein, and if it is unable to answer any question, it shall give a good and sufficient reason for such failure.
582. Whenever required by the commission, every public utility shall deliver to the commission copies of any or all maps, profiles, contracts, agreements, franchises, reports, books, accounts, papers, and records in its possession or in any way relating to its property or affecting its business, and also a complete inventory of all its property in such form as the commission may direct.
584. Every public utility shall furnish such reports to the commission at such time and in such form as the commission may require in which the utility shall specifically answer all questions propounded by the commission. The commission may require any public utility to file monthly reports of earnings and expenses, and to file periodical or special reports, or both, concerning any matter about which the commission is authorized by any law to inquire or to keep itself informed, or which it is required to enforce. All reports shall be under oath when required by the commission.
Information requests made pursuant to these statutes can work to the convenience of both the Commission and the utility by allowing compliance with requests to take place within the course of normal activities.
Furthermore, while Commission staff has access to requested information, the P.U. Code provides that utilities are protected from the inappropriate release of information disclosed to the Commission. P.U. Code § 583 states the following:
No information furnished to the commission by a public utility, or any business which is a subsidiary or affiliate of a public utility, or a corporation which holds a controlling interest in a public utility, except those matters specifically required to be open to public inspection by this part, shall be open to public inspection or made public except on order of the commission, or by the commission or a commissioner in the course of a hearing or proceeding. Any present or former officer or employee of the commission who divulges any such information is guilty of a misdemeanor.
Thus information provided to Commission staff can be protected from public disclosure. Non-disclosure agreements provide similar protections regarding information disclosed to Commission consultants.
8.2 New Subsection 8.2: Expansion of Information Request Regulation
The May 2 ACR proposed that we adopt a rule regarding Commission information requests. The proposed rule required every carrier and service provider to designate one or more representatives to be available during regular business hours to accept this Commission's CAB inquiries and requests for information regarding complaints. Another portion of the proposed rule stipulated that, unless alternate timing is approved by CAB, carriers and service providers have ten days to respond by providing requested documents and information.
Both Consumer Groups and DRA support inclusion of the information request rule in G.O. 168. DRA, whose work involves its repeatedly propounding data requests, contends that the benefits of the information request rule, like the public safety rules, "outweigh any potential cost that may be imposed on the carrier." 181 And while they would not support the rule to the exclusion of all others, Consumer Groups recognize that regulatory pressure is critical to ensuring compliance with Commission information requests.182
The Wireless Carriers, in contrast, oppose the rule. They state that "they agree with the principle that they should respond promptly to reasonable requests for information" from CAB, but they argue that the "record does not indicate any problem in this area necessitating a new rule."183
The AG response to the information request rule, like its review of the public safety rules, is mixed. It admits that parts of the rule are "useful."184 At the same time, however, it criticizes the rule in two ways. First, the AG objects to language in the rule that limits its applicability to all carriers "under the Commission's jurisdiction." 185 The AG views this provision as a concession to wireless carriers. The AG argues that wireless carriers "have long attempted to include in the rules [text like this language] to suggest that the rules do not apply to them."186 Second, the AG would like the rule to be stricter. It notes that "the rule has no additional requirement regarding how carriers are to handle such inquiries."
After reviewing these comments and the record more generally, we decide to adopt a modified version of the rule regarding information requests. We modify the rule proposed in the May 2 ACR so that it applies to information requests from all Commission staff, not just CAB personnel.
Our review of our statutory authority regarding information requests makes it clear that all Commission employees are entitled to information requested from utilities. Although this rule regarding telecommunications carriers' compliance with Commission information requests is largely a restatement of statutory provisions, we find nothing is lost and much is gained by clearly stating the obligations of all carriers in this General Order.
We find little merit to the Wireless Carriers' argument that this rule is unnecessary. The Legislature has vested the Commission with authority to monitor the functioning of the marketplace, and requirements that clarify and facilitate our work are justified. Furthermore the Commission's ability to request information is distinct from issues that are directly influenced by the level of marketplace competition.187 Thus while there may be evidence of competition in the telecommunications market, competition cannot be relied upon to ensure that a carrier complies with Commission information requests.
We are not persuaded by any of the AG's comments either. The information request rule's recognition of our jurisdictional limits is appropriate. We agree with the AG in its contention that "we do not believe that it is a close question that this rule also applies to the wireless carriers."188 At the same time, however, the rule rightfully acknowledges that telecommunications regulation takes place in a complex and dynamic environment where jurisdiction is sometimes shared with and sometimes preempted by the FCC. Thus it is important to recognize limitations on the applicability of this particular rule.
8.3 Creation of a Process to Resolve Disputes in the Informal Complaint Context
Despite the fact that carriers have a clear obligation to respond to Commission requests for information, our experience in the regulatory process demonstrates that there can be genuine, good faith differences regarding the reasonableness of Commission information requests. Just as it is important for the Commission to receive information, we recognize that it is important for carriers' due process rights to be protected.
Our treatment of disputes involving information requests varies depending on the context. In formal proceedings, an Administrative Law Judge (ALJ) or presiding officer reviews and decides upon such disputes. Currently, however, we do not have a process to adjudicate the issue of whether an information request is reasonable when it arises in the context of an informal complaint.
We believe it will be useful to establish a more systematic process to address concerns regarding information requests made outside of a formal proceeding.189 Thus we direct our General Counsel and Chief ALJ to prepare for Commission consideration a resolution recommending an appropriate process for resolving timing, format, scope, and burden concerns regarding Commission staff's requests for information.
180 The obligation to produce information requested by the Commission also extends to the following entities: "any business which is a subsidiary or affiliate of, or a corporation which holds a controlling interest in, an electrical, gas, or telephone corporation with respect to any transaction between the electrical, gas, or telephone corporation and the subsidiary, affiliate, or holding corporation on any matter that might adversely affect the interests of the ratepayers of the electrical, gas, or telephone corporation." Cal. Pub. Util. Code § 314(b).
181 DRA Reply Comments, pp. 1-2..
182 Consumer Groups Opening Comments, p. 9.
183 Wireless Carriers Opening Comments, p. 7.
184 AG Opening Comments, p. 13 (specifically praising the portion of the rule that requires carriers to respond by providing requested documents and information within 10 days).
185 Id.
186 Id.
187 Matters that are directly influenced by the level of competition in the market include service quality, prices, and the terms and conditions of service.
188 AG Opening Comments, p. 13. It is difficult to reconcile the AG's allegation that this qualifying language is a concession to the wireless industry when, as we note here, the AG itself admits that the rule clearly applies to the Wireless Carriers.
189 Resolution ALJ-164 currently provides procedures to be used by all parties in formal Commission proceedings.
