Limited Modification of the OII is Appropriate

Cingular identifies several defects in Ordering Paragraph 1 of the OII, which, though not grounds for dismissal, warrant correction. After review of Cingular's arguments and the text in question, we are persuaded to make the following modifications.

First, Ordering Paragraph 1(c) charges Cingular with violation of § 451, as follows:

... by failing to comply with certain standards (described in previous Commission decisions and in P.U.Code Section 2896 inter alia) that require all relevant, available, and accurate information be provided to customers so that they can make an intelligent choice between similar services where such a choice exists; (Emphasis added in first instance.)

However, Ordering Paragraph 1(c) fails to specify which Commission decisions are meant. The only decision mentioned in connection with § 451 in the text of the OII is D.95-04-028, which concerns the limitations on bundling of cellular products and services. This is the issue at the core of the charge under Ordering Paragraph 1(d), which specifically cites D.95-04-028. The OII does not identify any other Commission decisions.

It is well established that administrative pleading is not bound by the strict rules applicable to pleadings in court proceedings; fair notice to the respondent is more important than compliance with technical pleading rules.¹⁹ A pleading is sufficient and comports with due process when it provides the respondent with enough notice of the charges to enable him or her to prepare a defense.²⁰

Cingular cannot reasonably be expected to prepare a defense against violation of unspecified Commission decisions. We will cure the notice defect by modifying Ordering Paragraph 1(c) to delete the reference to "previous Commission decisions."

Second, the citations to D.95-04-028 in Ordering Paragraph 1(d) and (e) contain an inadvertent clerical error. The references to "Ordering Paragraph 5 of D.95-04-028" should be to Ordering Paragraph 1(5), consistent with the text of the OII.

The third problem, also in Ordering Paragraph 1(d), concerns a notice defect similar to the one discussed above. Ordering Paragraph 1(d) charges violations of §§ 451 and 702, as well D.95-04-028, as follows:

... by marketing and selling bundled packages of services and goods in a way that was illegal, and therefore unjust and unreasonable, under the consumer protection laws of the State of California, including but not limited to the Song-Beverly Consumer Warrant Act (CC §§ 1792-1792.4), the Consumer Legal Remedies Act (CC § 1770), and Sections 2314-2316 of the California Commercial Code; (Emphasis added.)

The text of the OII does not discuss any consumer protection laws other than those in the Civil Code. We deem inadvertent the failure to mention the Commercial Code statutes and modify the text of the OII to include that reference in the discussion of the sale of equipment and goods at the bottom of page 14, mimeo. We cure the notice defect in Ordering Paragraph 1(d) by deleting the words "but not limited to."