5. Comments on Draft Decision
The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ________________, 2002.
1. Pacific owns property in Calpella that includes a 40x140 foot strip of land.
2. Homeowners whose property adjoins the strip of land brought suit to quiet title and to affirm their prescriptive easement over the property.
3. Pacific entered into a settlement agreement by which Pacific agreed to sell and convey the property to the homeowners who had brought suit.
4. This complaint was filed by other adjoining owners who allege that Pacific failed to seek Commission approval of the sale under Pub. Util. Code § 851.
5. On December 11, 2001, Pacific provided the Telecommunications Division with additional information regarding the accounting and ratemaking treatment associated with the property in question.
6. The additional information shows that that the property located at 6140 N. State Street in Calpella, including the 40x140-foot strip of land, were booked to an above-the-line ratebase account.
7. Utility property that is recorded to above-the-line operating accounts is by definition necessary and useful in the provision of utility service.
8. On August 13, 2001, Pacific removed the 40-x140-foot strip of land from an above-the-line ratebase account and moved it to a below-the-line non-operating account.
9. Pacific states that it will treat any gain from the sale of land in accordance with the Commission's directive on sale of land set forth in D.92-05-002.
10. Pacific's accounting treatment effectively removed the strip of land to a category not necessary and useful in the provision of utility service.
11. Section 851 precludes from its requirements a utility sale of property that is not necessary or useful in the performance of the utility's duties to the public.
12. Pacific has not used, does not now use, and has no plans to use the strip of land in the performance of its duties to the public.
13. Approval by the Commission of the sale of the property by Pacific is not required.
14. Further inquiry into the propriety of the sale of the property is a matter for the courts and not for this Commission.
The complaint should be dismissed for failure to state a cause of action for which relief can be granted by the Commission.
IT IS ORDERED that:
1. The complaint of Christopher J. Rooney and Debra G. Polak against Pacific Bell is dismissed.
2. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
