III. Motion for Reconsideration of
December 22, 2003 ALJ Ruling

Raw Bandwidth requests reconsideration of the ALJ Ruling dismissing portions of the amended complaint. Raw Bandwidth alleges the ruling is not supported by the record, and it disagrees with the ruling's conclusion that we cannot grant the relief requested by Raw Bandwidth, i.e., advance notification of disconnection. Defendants support the ruling and assert Raw Bandwidth mostly reargues its position opposing Defendants' motion to dismiss.

We affirm the ruling's conclusion that SBC ASI need not provide DSL Transport if SBC California disconnects the underlying voice service. (In practice, DSL Transport remains connected for five days after voice service has been disconnected.) DSL Transport is a detariffed service offering subject to conditions mandated by the Federal Communications Commission (FCC). (Memorandum Opinion and Order, In the Matter of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services, 17 Fcc Rcd 27000 (2002),
¶ 1.) Under SBC ASI's general services agreement, which provides that DSL Transport is offered via a line sharing arrangement, the line cannot be shared

and DSL Transport no longer is offered once the voice line is disconnected.³ (Ruling, pp. 2-3.) Thus, disconnection of DSL Transport when the voice line is disconnected does not violate the terms under which DSL Transport is offered, nor does disconnection under these circumstances violate any law or order of this Commission.

There also is no statute or Commission order that bars disconnection of non-basic services for nonpayment of basic service charges. DSL, and by extension, DSL Transport, is not a basic service under Commission rules. Disconnecting DSL Transport for nonpayment of basic service charges does not violate a Commission order. (See Campbell v. Pacific Bell Telephone Co., D.02-06-011, 2002 Cal. PUC LEXIS 391, **9-10.)⁴

There is also no statute or Commission order that requires a lengthy notice to the ISP in advance of voice service disconnection. Specifically, Defendants' practice is that five days after dial tone has been suspended for nonpayment of basic service charges, Defendants notify the ISP, either its affiliated ISP or an unaffiliated ISP, that DSL Transport is being disconnected and disconnect the line. Raw Bandwidth contends that Defendants must give 30 days' written notice before DSL Transport can be disconnected, because SBC ASI's general services agreement with the ISP provides that SBC ASI only may discontinue DSL Transport on 30 days' written notice.⁵ However, the 30-day notice referenced by Raw Bandwidth applies to the notice SBC ASI must provide if its DSL Transport customer (that is, the ISP) does not comply with the agreement. That notice does not apply to the circumstance contemplated here, the disconnection of the SBC California subscriber for nonpayment of its basic service charges and the resulting disconnection of DSL service. Thus we determine that SBC ASI's notice practice does not violate its general services agreement by notifying its DSL Transport customer only after dial tone already has been suspended and when the DSL portion of the phone line has been or is about to be disconnected.

Raw Bandwidth argues that failure to warn it in advance of disconnection of DSL Transport is unreasonable and presents problems, e.g., because notice of voice disconnection sometimes is sent to the wrong address and ISPs have no opportunity to contact their subscriber to warn that subscriber of the disconnection of DSL. We reject this argument. SBC California, like any provider of basic service, must give proper notice to its subscriber before disconnecting the subscriber's basic service. The subscriber's ISP is a third party who has some interest in the disconnection of that service but who does not thereby become entitled to the same advance notice given the subscriber. Although the subscriber's ISP has no right to the disconnection notice sent to the voice service subscriber, public policy considerations favor giving the DSL Transport customer (the ISP) reasonable advance notice of the pending disconnection of DSL Transport service. DSL Transport continues five days after voice service is suspended. During that period, the issue is advance notice of DSL Transport disconnection, not voice disconnection, and the privacy protections afforded the voice subscriber for disconnection of voice service no longer apply.

Of further concern is Raw Bandwidth's contention that Defendants refuse to negotiate these terms of the general services agreement with Raw Bandwidth. In the FCC's "forbearance from tariff regulation" proceeding, SBC Communications, Inc. (SBC) committed to publishing "general rates, terms, and conditions for ISP broadband access arrangements that unaffiliated ISPs can either opt into or use as the starting point for negotiating alternative rates, terms, and conditions." (Memorandum Opinion and Order, supra, at ¶ 11.) The FCC relied on those commitments in finding that "forbearance from tariff regulation" criteria were met. (Id. at ¶ 13.) The failure to negotiate specific terms would violate SBC's commitment to the FCC that ISPs can negotiate alternate terms. Thus, we conclude SBC ASI must negotiate these terms with Raw Bandwidth. Among the terms that are subject to negotiation, are terms relating to notice to the ISP in the circumstances we have been discussing.

Raw Bandwidth maintains that the ALJ Ruling did not apply the appropriate standard in determining that portions of the first amended complaint should be dismissed. Raw Bandwidth is correct that the standard for dismissing complaints or portions thereof is the summary judgment standard and that the moving party must prevail based solely on undisputed facts and matters of law. The ruling determined that Raw Bandwidth's proposal to permit subscribers to waive privacy concerns to enable Raw Bandwidth to receive advance notice of disconnection was contrary to the settlement agreement we approved in D.03-07-032. That settlement agreement precludes SBC California, when acting on behalf of its affiliated ISP, from being able to identify which unaffiliated ISP is the provider. Raw Bandwidth asserts that relaying information from SBC California to SBC ASI could be a means of providing advance notice to the ISP that would not violate the settlement agreement. If true, that procedure could resolve these legal concerns. Because we determine that the failure to give advance notice to the ISP does not violate statute or Commission order, we need not weigh the legality or merits of Raw Bandwidth's alternate advance notice proposal. However, we direct SBC ASI to negotiate with Raw Bandwidth to determine the feasibility of this or alternate proposals to satisfy the FCC's "forbearance from tariff regulation" order.