2. Background
To understand why we conclude that Greenlining/LIF did not substantially contribute to D.01-04-036, it is necessary to give some detail regarding the issues in this investigation and the procedural steps to resolve it. As will become clear, Greenlining/LIF did not contribute to the resolution of their issues. Instead, its efforts in the proceeding were chiefly directed at broadening the investigation to include violations of the Business and Professions Code to add an additional respondent, which we declined to do.
This proceeding concerns allegations by the Commission's Consumer Services Division (CSD) that USP&C, Inc. (USP&C) had engaged in telephone billing practices that violate Sections 2889.9 and 2890, most notably by billing for products or services whose purchase had not been authorized by the billed subscriber. CSD further alleged that: (1) USP&C had violated Section 2889.9 by failing to provide CSD with requested information; (2) USP&C had violated Section 2890 by failing to provide "clear and concise descriptions of all products being billed;" and (3) USP&C had violated Section 2890 by failing to include on the bill the "name of the party responsible for generating the charge."
On November 9, 1999, Greenlining/LIF filed a motion seeking intervenor party status. Respondent USP&C, CSD, Greenlining/LIF, and Pacific Bell Telephone Company (Pacific) also entered appearances at the Prehearing Conference on December 1, 1999. Greenlining/LIF's motion to intervene was orally granted by the assigned Administrative Law Judge (ALJ).
During the Prehearing Conference, a question arose as to the scope of the Order Instituting Investigation (OII). Counsel for USP&C expressed concern that Greenlining/LIF intended to exceed the scope of the investigation as articulated in Ordering Paragraph 1 of the OII. The assigned Commissioner responded, stating that while the Commission welcomes the active participation of intervenors in Commission proceedings, the OII clearly outlines the issues to be resolved. The Commissioner added that if an intervenor believed that the public interest would best be served by investigating issues beyond the scope of the OII, the way to do so would be to petition the Commission to initiate a separate proceeding.2 The ALJ agreed with the Commissioner's clarification that the scope of the proceeding be limited to the OII's specification of alleged violations of Sections 2889.9 and 2890 by USP&C. Greenlining/LIF declined to heed these Commissioner's comments and suggestions, and instead pursued further attempts at broadening the scope of the OII to have Pacific named as a respondent and to include possible violations of the Business and Professions Code.
On December 29, 1999, Greenlining/LIF filed a Notice of Intent (NOI) to seek compensation alleging that both groups met the statutory eligibility criteria, although it deferred the requisite showing of financial hardship until the time of filing a request for an award of compensation, pursuant to Section 1804(a)(2)(B). Greenlining/LIF acknowledged that a finding of eligibility "in no way ensures compensation." USP&C responded to the NOI, and Greenlining/LIF replied to this response.
On February 11, 2000, the ALJ issued a ruling addressing issues raised in the NOI, USP&C's response and Greenlining/LIF's reply. The ruling noted that Section 1804 expressly limits compensation award funding to public utilities.3 Because billing agents are not subject to the intervenor compensation statutes, Section 1804(b)(2) "would appear to preclude the Commission from subjecting USP&C to funding an award." The ruling cautioned Greenlining/LIF that the absence of a public utility respondent to fund an award of compensation might affect its obtaining an award.
On April 11, and 12, 2000, the ALJ conducted evidentiary hearings. CSD and USP&C presented witnesses. Greenlining/LIF participated by cross-examination. Following the conclusion of the hearings, the parties, other than Pacific, filed initial briefs, and all parties filed replies.
On October 20, 2000, the ALJ issued the Presiding Officer's Decision (POD). USP&C, Pacific, and CSD appealed the POD; Greenlining/LIF filed a response to the appeals. In April 2001, the Commission issued D.01-04-036, which found that USP&C violated Section 2890(e)(2)(A) and (B), and imposed a fine of $1,750,000. The Commission also approved a partial agreement between CSD and USP&C, under which USP&C incurred an additional fine of $43,000 for failure to promptly provide information that CSD had requested.
The Commission ordered all Local Exchange Carriers (LEC's) permanently to cease providing USP&C billing and collection service. The Commission also ordered USP&C to show cause why it (1) should not be required to disgorge all amounts retained from unauthorized billings, and (2) should not be fined for failure to comply with Sections 2889.9 and 2890. Finally, the Commission required Pacific Bell to enforce its Billing and Collections tariff to the letter and to modify it to preclude a practice known as "dilution."4
USP&C filed an application for rehearing of D.01-04-036, and failed to pay the ordered fine.
2 Tr. pp. 29-31. 3 We note that there are at least two types of entities against whom complaint proceedings may be brought at the Commission but who are not explicitly covered by the intervenor compensation statute: billing agents (such as Respondent USP&C) and mobilehome parks. Due to this gap, a customer may prevail in a complaint at the Commission against such an entity but lack a public utility source from which to seek an award pursuant to the statute. 4 Approximately half of the customers billed by USP&C disputed the charge or demanded a refund. USP&C's stated plan to lower this rate was to obtain other billing customers with lower refund rates to "dilute" the unacceptably high rate.
