IV. DISCUSSION

CSD staff's investigative report alleges that Respondents have engaged in the illegal practice of cramming in violation of section 2890 and have failed to report consumer complaints of cramming against Pacific Bell's affiliates, as required by D.00-03-020 and D.00-11-015.

Section 2890 provides that a telephone bill may only contain charges for products or services, the purchase of which the subscriber has authorized. (Section 2890(a). ⁸) The practice of cramming has become a serious and widespread problem in California, draining time and money from California consumers and businesses. To address the problem, the Legislature enacted Public Utilities Code sections 2889.9 and 2890. Section 2889.9 provides the Commission with jurisdiction over public utilities and non-public utilities that place unauthorized charges on a subscriber's telephone bill. We have exercised that jurisdiction in the past to protect consumers from cramming, and will continue to do so. (See, e.g., Investigation of USP&C (April 19, 2001) D.01-04-036.)

According to the allegations, Pacific Bell, Pacific Bell Internet Services, and/or SBC-ASI have billed consumers for DSL and/or Internet services that were never ordered or received, or that were ordered but not received, or continued to bill consumers for DSL and/or Internet services after the consumer canceled the service. CSD staff's allegations also state that two or more Respondents have billed consumers for the same DSL and/or Internet services, and have billed consumers for services or products that were promoted as free or as less expensive than the charges placed on the consumers' telephone bills. If true, these allegations demonstrate that Respondents have violated section 2890.

Staff's report also alleges that Pacific Bell has not complied with our complaint reporting rules established pursuant to section 2889.9. (Rules Designed to Deter Slamming, Cramming and Sliding (March 2000) D.00-03-020, as modified by D.00-11-015.) These rules state "Every billing telephone company shall maintain accurate and up-to-date records of all customer complaints made to or received by it for charges for products or services provided by a third party, including corporate affiliates." (D.00-11-015, Attachment A.) The rules define "customer complaints" as "any written or oral communication to a Billing Telephone Company from a person or entity which has been billed for a charge which the person or entity alleges was unauthorized or resulted from false, deceptive, or misleading representations and which was billed, either directly or indirectly, through a billing telephone company." (Ibid.) Ordering Paragraph 2 of D.00-03-020 as modified by D.00-11-015 requires all billing telephone companies and billing agents to create summary reports of consumer complaints received each month for each service provider and billing agent and provide the report quarterly to CSD.

Pacific Bell's quarterly reports for the year 2001 report no complaints against SBC-ASI in any month. Considering the number of unauthorized billing complaints received by CAB against SBC-ASI in 2001, the amount of dollars Pacific Bell adjusted to SBC-ASI customers' bills during that period, and staff's allegation that written cramming complaints against SBC-ASI were forwarded by CAB to Pacific Bell, we find it appropriate to consider whether Pacific Bell failed to maintain accurate and up-to-date records of consumer complaints and failed to report these complaints against its affiliates in its quarterly reports submitted to CSD.

To achieve the goal of deterring cramming, the various participants in the billing chain must be held accountable for their part in the billing process. (See Interim Opinion Adopting Interim Rules Governing the Inclusion of Non-Communications-

Related Charges in Telephone Bills (July 12, 2001) D.01-07-030, mimeo, p. 11.) CSD staff's investigation raises questions about the role Pacific Bell and its affiliates have played in the chain of unauthorized billing of California consumers for DSL and/or Internet services.

If Pacific Bell did not comply with Ordering Paragraph 2 of D.00-03-020 as modified by D.00-11-015, we will consider whether Pacific Bell should be found in violation of section 702. Should we find violations of sections 702 or 2890, or any violations of statutes or Commission orders, decisions, rules or requirements, we will consider whether Respondents should be fined pursuant to sections 2107 and 2108, whether Pacific Bell and/or SBC-ASI should be ordered to pay reparations pursuant to section 734, and whether Pacific Bell and/or SBC-ASI should be ordered to cease and desist from any unlawful operations and practices, or have special conditions and restrictions imposed on them.

Good cause appearing, therefore,

IT IS ORDERED that:

1. An investigation on the Commission's own motion is instituted into the operations, practices and conduct of Pacific Bell Telephone Company (Pacific Bell), Pacific Bell Internet Services (Pacific Bell Internet), and SBC Advanced Solutions, Inc. (SBC-ASI) (Respondents) to determine whether:

a) Any or all of the Respondents violated Public Utilities Code section 2890 by placing charges on a subscriber's telephone bill for products or services the purchase of which the subscriber did not authorize;

b) Pacific Bell violated Ordering Paragraph 2 of Decision 00-03-020 as modified by D.00-11-015 which requires billing telephone companies to maintain accurate and up-to-date records of all customer complaints made to or received by them for charges for products or services provided by a third party, including corporate affiliates;

c) Pacific Bell violated Ordering Paragraph 2 of Decision 00-03-020 as modified by D.00-11-015 which requires billing telephone companies to

create a calendar month summary report of all customer complaints received each month for each service provider and billing agent for charges by a third party, including corporate affiliates, and provide it to the Director of CSD quarterly;

d) Pacific Bell violated Public Utilities Code section 702 by violating Ordering Paragraph 2 of Decision 00-03-020 as modified by D.00-11-015. Section 702 requires every public utility to obey and comply with every order, decision, direction or rule of the Commission and to do everything necessary or proper to secure the compliance by its agents;

e) Pacific Bell and/or SBC-ASI should be ordered to pay reparations pursuant to Public Utilities Code section 734;

f) Any or all of the Respondents should be fined pursuant to Public Utilities Code sections 2107 and 2108 for violations of the Public Utilities Code or other order, decision, rule, direction, demand or requirement of the Commission.

2. To facilitate the completion of this investigation, and consistent with the provisions of Public Utilities Code section 314, Respondents are ordered to preserve until further order of the Commission all California consumer complaints, as defined in Attachment A, Subscriber Complaint Reporting Rules of D.00-11-015.

3. CSD staff's investigative report includes cramming complaint information for Respondents that Pacific Bell has identified as proprietary pursuant to P.U. Code section 583. This information is relevant to the airing of the issues in a full, open regulatory proceeding and is hereby made public.

4. Within 30 days of the date this order is mailed, Respondents shall provide CSD staff with the following information or, if the information is not available, provide CSD staff with an explanation of why it is not available:

a) Any and all records of California "customer complaints" (as defined in D.00-11-015, Attachment A) against Pacific Bell, Pacific Bell Internet, and SBC-ASI, from 1999 to the present. Specifically, any and all records of such "customer complaints" that relate to Pacific Bell, Pacific Bell Internet, and SBC-ASI billing consumers for DSL and/or Internet services that were neither ordered nor received; billing consumers for DSL and/or Internet services that were ordered but not received; billing consumers for DSL and/or Internet services after the consumer requested termination of the service(s); billing consumers twice (under two different names) for the same DSL and/or Internet service; and billing consumers for services or products that Respondents promoted as free or as less expensive than the charges placed on the consumers' telephone bills.

5. A full hearing on the allegations set forth in this OII and any additional information which staff wishes to advance that is germane to the issues in the proceeding, shall be held on a date to be set at the Commission's hearing room, 505 Van Ness Avenue, San Francisco.

6. CSD staff shall continue discovery and continue to investigate the operations of Respondents. Any additional information that CSD staff wishes to advance, as part of its direct showing in this proceeding, shall be provided to the Respondents in advance of any hearings in accordance with the schedule directed by the assigned Administrative Law Judge. CSD staff will be subject only to discovery relating to the specific violations alleged in this order.

7. We expect CSD staff to bring additional evidence of any alleged harmful business practices by Respondents to our attention (e.g., new types of violations). CSD staff may propose to amend the OII to add additional respondents or to raise additional issues. Any such proposal should be presented to the Commission in the form of a motion to amend the OII and should be supported by a CSD staff declaration supporting the additional named respondents and/or proposed amendments.

8. This ordering paragraph suffices for the "preliminary scoping memo" required by Rule 6 (c) of the Commission's Rules of Practice and Procedure. This proceeding is categorized as an adjudicatory proceeding and will be set for evidentiary hearing. The issues of this proceeding are framed in the above order. A prehearing conference shall be scheduled for the purpose of setting a schedule for this proceeding including dates for the exchange of additional written testimony, determining which of the CSD staff's witnesses will need to testify, and addressing discovery issues. This order, as to categorization of this proceeding, can be appealed under the procedures in Rule 6.4. Any person filing a response to this order instituting investigation shall state in the response any objections to the order regarding the need for hearings, or issues to be considered. However, objections regarding issues to be considered must be confined to jurisdictional issues that could nullify any eventual Commission decision on the merits of the alleged violations, and not on factual assertions that are the subject of evidentiary hearings.

Service of this order on Respondents will be effectuated by personally serving a copy of the order and CSD staff's investigative report on the Respondents' designated agent for service in California:

The Registered Agent for Service of Process in California for Pacific Bell Telephone Company is:

Mary Mello

485 S. Monroe Street

San Jose, CA 95128

The Registered Agent for Service of Process in California for Pacific Bell Internet Service is:

Marilyn Salmon

485 S. Monroe Street

San Jose, CA 95128

The Registered Agent for Service of Process in California for SBC Advanced Solutions, Inc. is:

CT Corporation System

818 West Seventh Street

Los Angeles, CA 90017

A copy of the order and CSD staff's investigative report will be sent by certified mail directly to:

Pacific Bell

140 New Montgomery Street, Room 1805

San Francisco, CA 94105

Attention: James B. Young

This order is effective today.

Dated January 23, 2002, at San Francisco, California.

LORETTA M. LYNCH

President

HENRY M. DUQUE

RICHARD A. BILAS

CARL W. WOOD

GEOFFREY F. BROWN

Commissioners