16. Appeal of Presiding Officer's Decision

On December 19, 2011, pursuant to Rule 14.4 of the Commission's Rules of Practice and Procedure, TracFone filed an appeal of the POD alleging numerous factual and legal errors. Based on the alleged errors, TracFone argues that the POD should be modified to find that TracFone does not operate as a public utility under the California Public Utilities Code and, as such, has violated no laws by not collecting and remitting user fees and public purpose surcharges. To the extent the Commission continues to find TracFone a public utility, TracFone further argues that the POD should be modified to find TracFone in compliance with all rules and regulations governing user fees and public purpose surcharges as TracFone is exempt from such fees and surcharges under GO 153. On January 6, 2011, CPSD filed a response to TracFone's appeal requesting the Commission adopt the POD.¹³⁰

TracFone's appeal raises many of the same arguments it made throughout the proceeding. The POD already addressed these arguments and that discussion need not be repeated here. To the extent that TracFone makes new legal arguments, those arguments are addressed below. We affirm the POD with a few minor changes to improve the discussion and correct typographical errors.

The following is a summary of TracFone's arguments on appeal with, if applicable, citations where the arguments are addressed in the POD:

TracFone argues that the POD erroneously limits the procedural background and ignores key procedural events. The procedural history at pages 5-9 of the POD is sufficient for purposes of addressing the issues presented.

TracFone argues that the POD misstates the facts of the case. The POD does not misstate the facts of the case. As the statement of facts at pages 9-13 indicates, the POD appropriately weighs the evidence presented by the parties.

TracFone argues that the POD erroneously shifts the burden of proof to TracFone by relieving CPSD of the burden to establish that TracFone is subject to the user fees and public purpose surcharges. The POD at pages 14-18 does not require TracFone to establish, by the preponderance of evidence, that the surcharges and user fees are not applicable.

TracFone argues that the POD incorrectly finds that TracFone does not provide "debit card calling" services. The POD at pages 28-30 correctly applies the facts to the law and finds that TracFone is not a provider of "debit card calling" services.

TracFone argues that the POD errs by retroactively applying the user fees and public purpose surcharges to TracFone and by imposing potential penalties. The POD does not direct the payment or collection of past user fees or public purpose surcharges and the POD does not assess penalties. As noted at page 52, Ordering Paragraph 3, the amount of fees and surcharges owed, if any, and penalties, if any, will be the subject of Phase 2.

TracFone argues that the POD relies on a flawed analysis of relevant statutory law and Commission decisions to find TracFone a California public utility. The POD at pages 14-18 analyzes the public utility question and correctly finds TracFone a public utility under California law.

Section 1701.2 provides, in part, that a POD shall be filed and served without undue delay, not later than 60 days after the matter has been submitted. This matter was submitted on April 13, 2011, the same day reply briefs were filed. The POD was issued on November 18, 2011. TracFone argues that the time that elapsed between submission and the issuance of the POD exceeded 60 days and constituted undue delay under the statute. This argument is not directly addressed in the POD. Therefore, we address it now. We find that, while the POD did issue beyond the 60 days noted in the statute, TracFone was not harmed by this delay.

TracFone argues that the POD unfairly and unreasonably precludes a full investigation of the allegations against TracFone by excluding from the evidentiary record information concerning the practices and views of other service providers. This argument is not directly addressed in the POD. Therefore, we address it now. We find that evidence concerning other carriers or of the wireless industry in general is not determinative nor required when addressing the alleged violations of law by an entity regulated by the Commission. People v. Casa Blanca Homes, Inc., 159 C.A.3d 509, 532.

This completes the analysis of the issues presented in TracFone's appeal and CPSD's response.

While the Commission was considering TracFone's appeal, TracFone filed a motion requesting an oral argument. We hereby deny this motion.

¹³⁰ By e-mail dated December 22, 2011, the ALJ granted a 3-day extension of time for filing the response.