II. Procedural Background

We held a prehearing conference (PHC) on August 23, 2003, to establish the scope of this proceeding and set a hearing schedule. Both prior and subsequent to the PHC the parties had settlement discussions and resolved many issues.

On June 30, 2003, Defendants filed a motion to dismiss the complaint, which Raw Bandwidth opposed. On July 8, 2003, Complainant filed a request for withdrawal of issues concerning listing ISPs on the SBC.com web page. On September 11, 2003, the Assigned Commissioner Ruling's (ACR) and scoping memo granted the unopposed request of Raw Bandwidth to withdraw two counts of the Complaint. The ACR also partially granted Defendants' motion to dismiss part of Raw Bandwidth's complaint, specifically, the allegation that Defendants unreasonably disconnected DSL Transport whenever Defendants disconnected a customer's voice line service for nonpayment. The ACR noted that the relief Raw Bandwidth requested, i.e., advance notice of disconnection, raised privacy concerns. The ACR granted Raw Bandwidth leave to amend the complaint to request relief that would obviate the privacy concerns.

Raw Bandwidth filed its First Amended Complaint on September 22, 2003. On October 23, 2003, Defendants filed a joint motion to dismiss and to strike portions of the amended complaint. On October 31, 2003, the parties reported that they anticipated resolving remaining issues with the exception of the 611 transfer issue and the disconnection issue subject to the motion to dismiss. On November 7, 2003, Complainant filed a response opposing the motion to dismiss.

On October 10, 2003, Raw Bandwidth's attorney sent an email message to request that the hearings scheduled for October 15 be taken off calendar and that the matter be submitted on briefs, because the parties had settled two of the three remaining issues.³ The assigned administrative law judge (ALJ) granted the request to take the hearings off calendar and concurred with the filing of opening briefs on November 10 and reply briefs on November 25, 2003. Both parties submitted opening and reply briefs.

By December 22, 2003 ALJ Ruling, the motion to dismiss portions of the amended complaint was granted, because the relief requested (regarding disconnection of DSL Transport) would violate the settlement agreement between the California ISP Association, SBC California, and SBC ASI adopted in Decision (D.) 03-07-032.

In sum, the parties were able to resolve among themselves several matters from the original complaint; those matters are not discussed further. The issues before us today are (1) the request by Raw Bandwidth to reconsider the ALJ Ruling dismissing parts of the amended complaint, and (2) the discrimination issue, which was submitted on briefs. As discussed in sequence below, we affirm the dismissal and deny relief on the discrimination issue.