II. Discussion

D.98-10-058, often referred to as the right-of-way (ROW) decision, provides the process under which this complaint was filed. The process is described in findings of fact 72 through 74 as follows:


"72. Any carrier may file a formal complaint against any other carrier with an access agreement with a private building owner, including any executed prior to the date of this decision, that allegedly has the effect of restricting access of other carriers or discriminating against the facilities of other carriers, such as CLCs.


"73. In the case of such complaints, the complainant will have the burden of proving that the defendant carrier is the exclusive provider of service or the beneficiary of better terms of access in violation of the policies of this order.


"74. If, after a hearing, we find that a carrier's agreement or arrangement with a private building owner is unfairly discriminatory with respect to other carriers, we shall direct that within 60 days, the agreement be renegotiated. Failing that, at the end of 60 days, a fine shall be imposed ranging from $500 to $200,000 per day based on the number of lines served in the building until the agreement is renegotiated to remove the discrimination."

The only result that Pacific could receive from this proceeding would be an order requiring that the LOA be renegotiated. Since the LOA no longer exists, the remedy sought in the complaint is no longer available or necessary. Pacific's causes of action are moot. As to Pacific's quest for damages, the record developed in this proceeding is available to Pacific in pursuing any court action it wants to take. It would not be appropriate, or the best use of the Commission's resources, to further address this complaint purely for the purpose of helping Pacific develop its court case.

Since FWSC no longer has a CPCN to operate as a local exchange carrier in California, it is precluded from providing local exchange service. As far as other carriers are concerned, Pacific has presented no evidence that a significant number of other carriers are acting as Pacific alleged FWSC acted. Therefore, we see no need to address the alleged actions to prevent future harm to customers, competitors, and competition by FWSC or other carriers. If Pacific believes that other carriers are acting in a similar fashion, it can file a complaint as it did here.

The request for review and FWSC's appeal filed in this proceeding address the findings in the POD regarding FWSC's alleged actions. Since the remedy sought in the complaint is no longer available or necessary, the request for review and appeal need not be addressed.

For the above reasons, we will dismiss this complaint.

Findings of Fact

1. On May 25, 2001, FWSC's customers at Block were transitioned to Pacific.

2. By D.02-05-045, FWSC's CPCN was revoked.

3. The only result that Pacific could receive from this proceeding would be an order requiring that the LOA be renegotiated.

4. The LOA no longer exists.

5. The remedy sought in the complaint is no longer available or necessary.

6. The record developed in this proceeding is available to Pacific in pursuing any court action it wants to take.

7. There is no need to address FWSC's alleged actions to prevent future harm to customers, competitors, and competition by FWSC or other carriers.

8. The request for review and FWSC's appeal filed in this proceeding address the findings in the POD regarding FWSC's alleged actions.

Conclusions of Law

1. Pacific's causes of action are moot.

2. The complaint should be dismissed, effective immediately.

ORDER

IT IS ORDERED that this proceeding is dismissed.

This order is effective today.

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