Assignment of Proceeding

Carl Wood is the Assigned Commissioner and Jean Vieth is the assigned ALJ in this proceeding.

Findings of Fact

1. The petition to modify and the supplement comply with the procedural requirements of Rule 47.

2. Cingular has established that public disclosure of following information has the potential to cause it unfair economic disadvantage: the number of Cingular customers in California; data on Cingular's California subscriber base and growth; and the chart detailing Cingular's entire indirect distribution network in California.

3. The OII raises the kind of consumer protection matters that federal law permits the states to adjudicate and does not expressly or impliedly seek to regulate wireless rates or terms of entry.

4. The Commission may look to cases decided under statutes outside the Public Utilities Code for guidance on the kinds of activities that have constituted consumer protection violations.

Conclusions of Law

1. The petition to modify should be granted to the extent discussed herein.

2. Pursuant to § 583 and GO 66-C, the confidential information described in Ordering Paragraph 2 of today's decision should not be publicly disclosed.

3. Federal law does not preempt this OII.

4. The Commission has jurisdiction to investigate Cingular under the state law theories alleged.

5. The motion to dismiss should be denied.

6. The OII should be modified as described herein to correct notice defects and inadvertent clerical omissions.

7. In order to provide certainty to the parties and promote an efficient use of their resources and the resources of the Commission, this decision should be effective immediately.

INTERIM ORDER

IT IS ORDERED that:

1. The Petition for Modification filed June 25, 2002 by Cingular Wireless (Cingular) is granted to prohibit the public disclosure of the following information: the number of Cingular customers in California; data on Cingular's California subscriber base and growth; and the chart detailing Cingular's entire indirect distribution network in California.

2. Ordering Paragraph 10 of Investigation (I.) 02-06-003 is modified as follows (text to be deleted is indicated in strikeover format and text to be added is indicated in italics):


(a) Staff's investigative Report contains Cingular's responses to Staff data requests, which Cingular has identified as confidential and/or proprietary pursuant to Public Utility Code section 583. The Commission finds that none of the information contained in the report is so trade sensitive as to outweigh the public interest in disclosure, and such disclosure is herby authorized in order to prevent an unfair business disadvantage to Cingular, the following information should be excluded from public disclosure: (i) the number of Cingular customers in California (found in the Staff Report, at page 5 prior to footnote 23 and in Attachment E to the Staff Report on the page bearing Bates Stamp 00138); (ii) data on Cingular's California subscriber base and growth (found in Attachment E to the Staff Report on the page bearing Bates Stamp 00151; and (iii)the chart detailing Cingular's indirect distribution network in California (found in Attachment E to the Staff Report on the page bearing Bates Stamp 00154).


(b) The Commission's Central Files shall hold the Staff Report and Attachment E to the Staff Report under seal for the duration of this proceeding or for two years from this order (whichever is later), except as provided in Ordering Paragraph 2(c). CSPD shall provide the service list for this proceeding and the Commission's Central Files with public versions of the Staff Report and Attachment E to the Staff Report in which the confidential information has been redacted consistent with Ordering Paragraph 2(a).


(c) For the duration of this proceeding or for two years from this order (whichever is later), the documents or portions of documents described in Ordering Paragraph 2(a) shall not be made accessible or be disclosed to anyone other than Commission staff except on the further order or ruling of the Commission, the Assigned Commissioner, the assigned Administrative Law Judge (ALJ), or the ALJ then designated as Law and Motion Judge.


(d) If Cingular believes that further protection of this information is needed beyond the duration of this protective order, it may file a motion stating the justification for further withholding the material from public inspection, or for such other relief as the Commission rules may then provide. Such motion shall be filed no later than 30 days before the expiration of this protective order.

3. Parties shall comply with the discovery directives, herein, regarding claims for protection of confidential information and resolution of related disputes.

4. For the duration of this proceeding, neither this Commission nor the any hearing officer assigned to this proceeding will order the public release of allegedly confidential information except upon careful consideration, after notice and opportunity to be heard on the matter.

5. Cingular's motion to dismiss (motion), filed on July 19, 2002, is denied.

6. Ordering Paragraph 1(c) of I.02-06-003 is modified as follows (text to be deleted is indicated in strikeover format):


(c) Respondents violated P.U. Code § 451 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;

7. The final paragraph on Page 14, mimeo, of I.02-06-003 is modified as follows (text to be deleted is indicated in strikeover format and text to be added is indicated in italics):

(b) Sections 2314-2316 of the California Commercial Code and The the Consumer Legal Remedies Act (Civil Code § 1770), the latter which defines as illegal any sale of goods or services accompanied by the following conduct:

8. Ordering Paragraph 1(d) of I.02-06-003 is modified as follows (text to be deleted is indicated in strikeover format and text to be added is indicated in italics):


(d) Respondents violated P.U. Code §§ 451 and 702 and Ordering Paragraph 1(5) of D.95-04-028 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;

This order is effective today.

Dated October 24, 2002, at San Francisco, California.

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