Procedural Background
The Commission started this investigation to determine whether Vista had engaged in cramming, slamming, and misrepresenting Vista's relationship with local exchange companies. If proven, such activities would constitute violations of Sections 451, 489, 702, 2889.5, and 2890.1 (The terms "slamming" and "cramming" refer, respectively, to the unauthorized transfer of a telecommunications customer's account from one provider to another, and the billing of such a customer for services not authorized by the customer.) In addition, the Commission asked whether fines should be imposed pursuant to Sections 2107 and 2108 for any such violations, whether respondent should be ordered to cease and desist from any unlawful operations or pay restitution, and whether respondent's certificate of public convenience and necessity should be suspended or revoked. Based upon the evidence presented during the proceeding, the alleged statute violations were reduced solely to Sections 702 and 2889.5.
Evidentiary hearing was held on October 18-22, November 15-19, and December 6 and 15, 1999. Vista and the Commission's Consumer Services Division (CSD) filed concurrent opening and closing briefs on January 7 and 14, 2000, respectively.
CSD objected to the receipt of exhibits identified at the hearing and offered into evidence later, namely, Exhibits (Exh.) 32, 38, 39, and 40. After review of the exhibits, we conclude that CSD's arguments regarding the receipt of these exhibits mostly concern the weight to be given the exhibits, rather than whether they should be received into evidence. The exception is Exh. 40, which, indeed, Vista did not submit as promised or offer into evidence. Therefore, Exhs. 32, 38, and 39 are received into evidence. Exh. 40 is not received.
On November 10, 1999, the Assigned Commissioner consolidated this proceeding with Application (A.) 99-09-038, which was filed September 14, 1999. This investigation proceeding is adjudicatory with a 12-month statutory deadline; whereas, the later filed application is ratesetting. (See Sections 1701.2 and 1701.3)
On April 6, 2000, the Commission issued an order pursuant to Section 1701.2(d) extending the 12-month deadline in the consolidated proceeding in order to accommodate the later schedule of the application. (D.00-04-032)
1 Unless otherwise indicated, statutory citations are to the Public Utilities Code. We also instructed staff to bring to our attention by motion any evidence of violations of Section 2889.9 after its effective date. This statute was not effective until January 1, 1999. It prohibits a person or corporation from misrepresenting its association or affiliation with a telephone carrier when soliciting a subscriber to purchase a product or service and to have that product or service billed on the subscriber's telephone bill. At the time the Commission signed out the order starting the investigation, Vista had informed staff it had ceased all marketing in California in November 1998, making Section 2889.9 inapplicable. Staff did not file such a motion but argued that evidence contradicting Vista's representations was discovered, namely, a complaint alleging Vista telemarketers represented themselves to be employed by a local exchange company in August 1999. We will address this argument in the part of the Opinion dealing with cramming allegations.
