15. DUE PROCESS

Several consumer representatives complain that their right to due process has been violated during the course of the Commission's review of G.O. 168.³⁷⁸ TURN, joined with other Consumer Group members, criticizes the Proposed Decision in a number of ways: It faults the Proposed Decision for not responding to the claims in its Reply Brief; argues that the Proposed Decision improperly puts the burden of proof on TURN to justify the rules adopted in D.04-05-057 and later stayed in D.05-01-058; contends that the Commission failed to clarify the scope of proceedings after D.05-01-058 was issued; maintains that there was insufficient time and direction provided for preparing for hearings; criticizes the hearings for failing to permit cross-examination of the parties; and complains that its Motion to Recuse Commissioner Kennedy was improperly rejected as moot.³⁷⁹

The AG generally endorses TURN's due process claims and adds one more: "The Assigned Commissioner . . . prohibited consumer groups or law enforcement from obtaining from carriers any information regarding their consumer complaint numbers unless it could be proven that a carrier `had put its own consumer complaint data in issue by relying on it in pleadings or other formal submissions.'"³⁸⁰

LIF faults the Commission and the Proposed Decision for failing to more fully develop the record on problems faced by limited-English speakers. It calls for a "promised second phase of [the] proceeding to address language minority issues."³⁸¹ LIF also maintains that the proposed repeal of the Interim Non-Com rules was without an adequate record and due process.³⁸²

There is no dispute among the parties that this rulemaking qualifies as a quasi-legislative proceeding within the meaning of P.U. Code § 1701.1(c)(1). The statute provides that quasi-legislative proceedings are "cases that establish policy, including, but not limited to, rulemakings and investigations which may establish rules affecting an entire industry."³⁸³

The Commission has little or no statutory obligation to offer hearings in a quasi-legislative proceeding, such as this one. The Legislature provides that in quasi-legislative proceedings "the commission may conduct any proceeding to adopt, amend, or repeal a regulation, using notice and comment rulemaking procedures, without an evidentiary hearing, except with respect to a regulation being amended or repealed that was adopted after an evidentiary hearing . . . "³⁸⁴ In this proceeding, the G.O. 168 rules were not adopted without any preceding evidentiary hearing, so we are under no obligation to hold any hearing at all. Any parties' claims regarding hearings, therefore, should only be judged on whether we provided parties with sufficient notice and an opportunity to be heard.

It is clear that the Commission provided all parties ample opportunity to be heard within this proceeding. As Sprint Nextel points out in response to TURN's comments,³⁸⁵ TURN had the opportunity to participate in the following ways: file comments on February 7, 2005 in response to Petitions for Modification of D.04-05-057; file comments on March 25, 2005 on the Assigned Commissioner's March 10 Ruling; present arguments at the April 6, 2005 Prehearing Conference; move (on May 31, 2005) to recuse the Assigned Commissioner; file opening and reply comments (on May 31 and June 15, 2005) on the Assigned Commissioner's May 2, 2005 Ruling; present opening and reply testimony (August 5 and September 16, 2005); testify and otherwise argue at the two-day formal hearing attended by two commissioners and the assigned ALJ; file opening and reply briefs (October 24 and November 7, 2005); and most recently file opening comments (January 17, 2006) and reply comments on the Proposed Decision.

Similarly the AG expressed itself in multiple portions of this proceeding. The AG's activities included the following: filing comments on February 7, March 25, and May 31, 2005; and appearing and arguing at the April 6 Prehearing Conference. The AG also could have filed testimony and participated in the formal hearing, had it wished to do so; regardless it had its views read into the formal hearing record by others. TURN and the AG, therefore, have no credible basis for contending they have not been provided with a full opportunity to be heard in this case.

TURN's charges that inadequate notice was provided in advance of the formal hearings are similarly baseless. The Assigned Commissioner's Ruling issued on June 30, 2005, nearly three full months before the hearing, advised parties that formal hearings would be held in this quasi-legislative proceeding. The format of the hearing was set forth in an extensive Assigned Commissioner's Ruling that was issued to all parties on September 19, 2005, a full 10 days before the hearing commenced. Ten days' notice of a hearing is fully consistent with the Commission's Rules of Practice and Procedure for hearings.³⁸⁶ The fact that hearing panels were finalized the day before the hearing also did not disadvantage parties, since this notice merely concerned the order in which the witnesses would appear and testify.

We find no merit in TURN's arguments regarding the allegedly unclear scope of the proceeding either. A review of TURN's opening and reply testimony, as well as the hearing transcript, demonstrates that neither TURN nor its witness had any difficulty in recognizing the scope of the proceeding and addressing an extremely wide range of subjects during the hearing.

TURN's complaints about the lack of cross-examination in the formal hearings likewise are not persuasive. As TURN is well aware from its participation in hearings before the Legislature, legislative-style hearings typically do not permit opposing parties to cross-examine other parties' witnesses. To the extent cross-examination occurs, it is conducted by the legislators. Analogously, cross-examination in the formal, quasi-legislative hearing here was conducted by Commissioners Kennedy and Brown, who acted in their quasi-legislative capacity.

Finally we hold that no due process violation occurred when Commissioner Kennedy ruled to preclude discovery of carrier complaint records. We concur with the Assigned Commissioner that such a ruling was necessary to move the proceeding forward in the face of what almost certainly would have been unacceptable delays over the significance and discoverability of carriers' interactions with their customers. At the time of the ruling, no carrier had voluntarily put its own consumer complaint data in issue by relying on such data, so it was not procedurally inequitable to the opposing parties to circumscribe the limits of discovery in this fashion.

It is notable that, despite the shortcomings TURN, the AG and others allege, neither they nor any other party raises any claim that the Proposed Decision fails to comply with any specific due process requirement in the P.U. Code or the Commission's own Rules of Practice and Procedure. TURN and the AG fail to adequately consider the quasi-legislative nature of this rulemaking, which, for due process purposes, is central to determining whether the Commission provided parties with notice and an opportunity to be heard. Moreover, upon review of the procedural history, it is clear that the Commission provided parties' ample notice and opportunity to be heard. Thus we conclude that the Commission fully complied with all requirements for due process of law in this Commission proceeding.

³⁷⁸ Consumer Groups Opening Comments, pp. 16-18;AG Opening Comments, p. 8; LIF Reply Comments, p 2; Consumer Groups Reply Comments, pp. 2-4.

³⁷⁹ TURN Opening Comments, pp. 16-18.

³⁸⁰ AG Opening Comments, p. 8.

³⁸¹ LIF Opening Comments, p. 2.

³⁸² LIF Opening Comments, p. 2.

³⁸³ Cal. Pub. Util. Code § 1701.1(c)(1).

³⁸⁴ Cal. Pub. Util. Code § 1708.5(f). See also the Rules of Practice and Procedure, Rule 14.1, which defines `Rulemaking' as "a formal Commission proceeding in which written proposals, comments, or exceptions are used instead of evidentiary hearings."

³⁸⁵ Sprint Nextel Reply Comments, p. 3.

³⁸⁶ Rule 52(a) states that "[i]n complaint or investigation proceedings, the Commission shall give notice of hearing not less than ten days before the date of hearing, unless it be found that public necessity requires hearing at an earlier date. Comparable notice ordinarily will be given when hearings are held in application proceedings."