II. BACKGROUND
The rulemaking order that initiated this proceeding relied upon a Commission staff report noting an increase in recorded complaints by customers against Commercial Mobile Radio Service (CMRS) carriers.2 The report indicated that the Commission received in 1998, 2,404 and in 1999, 3,356 informal complaints regarding the 158 registered CMRS providers operating in California. The informal complaints were recorded during a time when carriers of all classes were engaging in aggressive marketing tactics resulting from increased competition both in the wireless industry and the newly competitive local wireline service. During this same period, carriers were also in the process of deploying new technologies and services such as ISDN and digital wireless. The staff reviewed a total of 81 of those 5,760 complaints. Based on these 81 complaints, the staff report recommended a set of rules for the entire telecommunications industry, with specific changes to industry tariffing, marketing and billing practices, changes to the limitation on liability of carriers, and establishment of a "Consumer Bill of Rights." Respondent utilities and interested parties were invited to submit comments and replies on the proposed rules in the staff report, and a full spectrum of stakeholders did so.
In January 2001, Assigned Commissioner Carl Wood issued two rulings seeking comments on two additional sets of proposed rules falling within the scope of the rulemaking proceeding. The first set was Proposed Rules on the Inclusion of Non-Communications-Related Charges on Telephone Bills. On September 29, 2000, Governor Gray Davis signed Assembly Bill (AB) 994 extending a ban on non-communications-related charges in telephone bills to July 1, 2001. AB 994 also added §2890.1 to the Public Utilities Code, explicitly directing the Commission to adopt by that date any additional rules it determined necessary to implement the billing safeguards set forth in § 2890. AB 994, §§ 1(c) and 1(d), cites this rulemaking proceeding as a proper vehicle for the Commission to do so. After considering some 31 sets of comments and replies, the Commission issued Decision (D.) 01-07-030 adopting a set of interim rules governing the inclusion of non-communications-related charges on telephone bills. We stated that those rules, possibly with some modifications, would be incorporated into and superseded by the new general order we adopt in this decision.
In the second January ruling concerning the second set of additional proposed rules, the Assigned Commissioner sent out for comments his second set of Proposed Rules for Slamming, prepared in response to the FCC's decision in CC Docket No. 94-129. The FCC rules gave each state the option to act as the adjudicator of slamming complaints, both interstate and intrastate. Under the FCC's order, each state that opts to take on that responsibility must notify the FCC of the procedures it will use to adjudicate individual slamming complaints. Twenty-four sets of comments and replies were received on those proposed rules.
On June 6, 2002, Assigned Commissioner Wood issued a draft decision and a proposed general order, "Rules Governing Telecommunications Consumer Protection," for public comment. Thirty-two sets of comments were filed, followed by four days of workshops. Commissioner Wood suspended the proceeding schedule to allow carrier and consumer representatives to convene an informal working group to consider rule changes that both could agree to. The working group submitted its report with agreement on some issues and disagreement on others. The Assigned Commissioner sought two additional rounds of comments, following which a draft decision and general order were mailed for public comment on July 24, 2003 as required by Public Utilities Code §311(g)(1).
On November 17, 2003 Governor Arnold Schwarzenegger issued Executive Order S-2-03, directing all State agencies and departments to suspend action on and withdraw all proposed regulations not yet enacted for a period of 180 days in order to reassess the regulatory and economic impact on California businesses. On December 22, 2003, Governor Schwarzenegger sent a letter to the Commission requesting that the Commission voluntarily abide by this Order, seeking voluntary compliance in recognition of the Commission's independent status. In response to the Governor's request, the Assigned Commissioner delayed Commission action on this decision, and issued for public comment a Revised Draft Interim Decision on March 2, 2004. In the Revised Draft Decision, the Notice of Availability invited parties to include comments on economic effects of the proposed new general order3 requiring that two sets of comments be filed within two weeks from release of the 231 page order - one set addressing the proposed rules, and another set addressing the economic impacts.
Parties representing carriers and many California businesses uniformly indicated that the restrictive procedural schedule was unreasonable and impossible to effectively comply with, and that the short comment cycle did not provide sufficient time to permit meaningful consideration of the economic impacts of the proposed rules.4 Carriers and other parties also objected to the level of consideration that the comments on economic impacts would receive, as outlined in the Notice of Availability, which states:
Because this is a quasi-legislative proceeding, new information will not be evaluated as to its factual accuracy but may be considered by the Commission, in its discretion, as it makes policy determinations.5
Carriers argued that this treatment of the comments on economic impacts without testing the factual accuracy of the information before relying on the data to reach policy determinations would not be reasoned decision-making.
The Assigned Commissioner held no evidentiary hearings in this proceeding and did not accept any formal evidentiary submissions. As a result, the record consists of customer complaint data from 1998-1999, statements made at public participation hearings, and comments filed by various parties.
The Wireless Carriers and the Wireline Group sought extensions in the proposed schedule by formal motion. The assigned Administrative Law Judge (ALJ) granted a one-week extension, denying the motion in all other respects without comment on the majority of those motions.
The Assigned Commissioner made additional changes in response to the parties' comments and posted a further revised draft on the Commission's website on March 24, 2004
