V. Comments on Draft Decision

We initially categorized this proceeding as an adjudication that would go to hearing. We adhere to that category but find, with the agreement of the parties, that a hearing is not needed.

The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on April 27, 2004 and reply comments were filed on May 3, 2004. Defendants support the draft decision; Raw Bandwidth alleges the draft decision errs in its analysis and findings.

In response to the parties' comments, we made editorial changes and clarifications. However, we made no substantive change to the draft decision's disposition of the Complaint. Turning to Raw Bandwidth's allegations of legal error, we find there are basically two, allegations that we ignored legal argument by Raw Bandwidth and allegations that we denied Raw Bandwidth due process. We next discuss these allegations.

Raw Bandwidth alleges the draft decision does not address Raw Bandwidth's argument that the anti-discrimination requirements of Pub. Util. Code § 453 and 47 U.S.C. § 202 are violated whenever its subscriber is not automatically connected to its service department. We disagree. Raw Bandwidth's opening and reply briefs refer to the statutes but fail to develop the argument that there is a violation.¹⁰ Mere mention of those statutes in opening and reply briefs, without supporting legal argument based on specific facts, does not support Raw Bandwidth's assertion that those statutes are violated. The draft decision holds differential treatment of Raw Bandwidth's subscribers, the alleged discrimination, is lawful. A violation of § 453 requires more; the alleged discrimination must be unreasonable. The draft decision properly finds the differential treatment is not unreasonable discrimination.

Raw Bandwidth further alleges that the draft decision does not address the just and reasonable service standards of §§ 451 and 2896(c) in connection with SBC ASI's procedures for disconnecting DSL Transport. We disagree. Raw Bandwidth's contention was addressed in the December 22, 2003 dismissal ruling, affirmed in the draft decision. In the draft decision we similarly rejected Raw Bandwidth's claim that Defendants' procedure was unreasonable but supported a public policy interest in reasonable notice. Defendants contend it is not feasible to provide more than scant notice, based on existing procedures. Nonetheless, we continue to direct SBC ASI to negotiate with Raw Bandwidth to resolve this issue to satisfy SBC's commitment in the "forbearance from tariff regulation" proceeding.

Raw Bandwidth erroneously alleges dismissing the remaining counts in its First Amended Complaint violates its due process rights. In fact, the draft decision did not dismiss any issue raised in the First Amended Complaint. The ACR and scoping memo narrowed the scope of the proceeding to three issues, granted dismissal of the Third Cause of Action, Counts 3 and 4, and permitted amendment of the Complaint to request relief that would not violate privacy rights.

The scoping memo relied on Raw Bandwidth's characterization of the issues in its Prehearing Conference Statement and at the PHC in setting three issues for hearing.¹¹ Narrowing the scope of the proceeding resulted from Raw Bandwidth's request in its August 19, 2003 Prehearing Conference Statement to put two issues on hold, because Complainant had not decided how to pursue them. Raw Bandwidth and Defendants had resolved two other issues and wanted to continue settlement negotiations.⁸

At that time, Raw Bandwidth characterized its Third Cause of Action, Count 3, subject to the motion to dismiss, as raising two issues: 1) the failure of SBC service representatives to warn end users that disconnecting their voice line also will disconnect their DSL; and 2) the failure to warn ISPs that the voice line has been disconnected for nonpayment. Although amendment of the Complaint was limited to requesting relief that did not raise privacy concerns, the First Amended Complaint added new counts. Although Raw Bandwidth earlier characterized Count 3 as raising two issues, Raw Bandwidth stated in the First Amended Complaint that the Complaint's Count 3 (originally four paragraphs) had been split into four counts for clarity of the relief requested (now twelve paragraphs).

Raw Bandwidth would have us set another PHC to address all remaining issues, including those for which hearings were taken off calendar based on the parties' representations that they had settled the issues.⁹ We decline to do so. Our decision resolves the only issue contained in the scoping memo that the parties have not settled. We also resolve the core allegation of the original complaint concerning disconnection.

Although the scoping memo did not include the discrete disconnection sub-issue concerning the failure of service representatives to warn subscribers that disconnection of the voice line would disconnect DSL, we do not find that omission, which Raw Bandwidth did not challenge, violates Raw Bandwidth's due process rights. Raw Bandwidth states the issue may be settled shortly. If not, we have directed SBC ASI to negotiate terms of service with Raw Bandwidth to satisfy the FCC's "forbearance from tariff regulation" order.

We clarify the procedural status of the remaining counts of the First Amended Complaint to ensure Raw Bandwidth can continue to negotiate with Defendants in order to resolve those issues. We dismiss without prejudice all remaining counts of the First Amended Complaint. Raw Bandwidth also brought to our attention during this proceeding Defendants' failure to negotiate other issues not raised in the Complaint. We encourage Defendants to negotiate those issues as well. Should Raw Bandwidth need to file another complaint on issues raised in this Complaint or brought to our attention in this proceeding, we request that Raw Bandwidth provide us with a status report on the results of informal negotiations.