6. Applicability of G.O. 168 Rules

The Commission's ability to provide consumers appropriate redress obviates any need for private litigation. We have Staff dedicated to assisting consumers who have complaints about telecommunications carriers, and a consumer or group of consumers that files a formal complaint may seek penalties and restitution.144 Indeed, many parties that are participating in this proceeding - including TURN, UCAN, LIF, and Greenlining -have come to the Commission in an effort to seek enforcement of various consumer protection rules.

We first clarify that we believe that we should not restrict the AG's ability to use the Unfair Competition Law to bring suit against a carrier. Collaboration with other law enforcement officials is to our mutual benefit. For example, penalties under the Unfair Competition Law and P.U. Code are cumulative, so coordination with local law enforcement officials may afford greater relief to California consumers. Moreover we concur with the California Supreme Court's assessment that, as compared with a private right of action, "there is a diminished likelihood that an action . . . initiated by the district attorney would undermine the ongoing regulatory authority of the PUC. . . ."152 The Court reasons that multiple statutes "clearly indicate that . . . the PUC and public prosecutors are expected to coordinate their efforts to accomplish the most efficient and effective means of remedying any misconduct of the public utility."153

We modify our applicability language to make our position clear. G.O. 168, as revised, states that "[t]hese rules shall not be interpreted to create any new private right of action, to abridge or alter a right of action under any other state or federal law, or to create liability for that which would not exist absent the foregoing rules." Also we modify our applicability language that specifically addresses our relationship with the AG. The new language provides that the "Commission intends to continue its policy of cooperating with law enforcement authorities to enforce consumer protection laws."

Our response to the Wireline Group's comments is mixed. We cannot support its first proposal, which would have us add that "construction and application of these rules by any other body would be inconsistent with and interfere with the Commission's regulatory purpose and authority."154 This statement goes too far. We agree with the AG that we have no "specialized expertise that would suggest [we are] more capable than the courts to define a term used generally in consumer protection law."155 We recognize that California courts already have defined the term "reasonable consumer,"156 and we do not seek to create a scenario where "carriers and the public would have to operate under two different standards for the same concept."157

We do, however, agree that we should extend our applicability language to all the rules adopted in the General Order. This extension provides consistency among the rules, as we have the same response to private actions in all rules that we adopt. Also our modifications to the applicability language sufficiently addresses the AG's concern that this extension would "weaken[] any enforcement possibilities."158 Thus, in conclusion, we modify our applicability language and extend this text to all rules included in G.O. 168.

144 Additionally our intervenor compensation program provides compensation for the reasonable costs incurred by intervenors as a result of their participation in CPUC proceedings. Awards of compensation are paid by the public utility (or utilities) that were the subject of the proceeding in which the intervenor participated. If the proceeding applies to an entire industry, then the awards of compensation are paid by the CPUC out of fees it collects from utilities.

145 31 Cal 4th 1132, 1155 (Cal. 2003).

146 We included no equivalent provision in Part 3 (Rules Governing Slamming Complaints).

147 San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 918 (Cal. 1996).

148 AG Opening Comments, p. 11. DRA echoes these concerns. DRA Reply Comments, pp. 2-3.

149 AG Opening Comments, p. 11.

150 Wireline Group Opening Comments, p. 6. CTIA provides more general support for the private right of action language included in the decision. CTIA Reply Comments, p. 3.

151 Id.

152 Orloff, 31 Cal. 4th at 1151.

153 Id. (citing Govt. Code § 26509(d)(32), which permits the Commission to defer disclosure of investigative materials to public prosecutors in the event such disclosure would jeopardize the Commission's own investigation or other duties, as an example of one such statute).

154 Wireline Opening Comments, p. 7.

155 AG Reply Comments, p. 2.

156 See, e.g., Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 504-513 (Cal. 2003) (applying .the reasonable consumer standard to a case brought under the Unfair Competition Law).

157 Id. at 2-3.

158 Id. at 2.

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