II. Background
Qwest is a Deleware corporation with its principal place of business in Denver, Colorado.2 Qwest offers both long distance and local toll services for California residential consumers, and provides communication services to interexchange carriers and other entities using its own facilities as well as facilities leased from other carriers. Qwest currently acts as an underlying carrier for 158 long distance resellers.
The order instituting this investigation (OII) charges Qwest with changing the long distance carrier of numerous California customers without their authorization. This practice, known as "slamming", is unlawful under § 2889.5. Section 2889.5 contains detailed rules regarding the appropriate steps telephone corporations must take in order to make changes in a subscriber's telephone service. The statute requires independent third-party verification of the subscriber's decision to change telephone service providers. The telephone corporation must record the subscriber's decision to change, retain the record for at least one year, and make the record available to the subscriber and the Commission upon request. Section 2889.5 is a public welfare statute which does not require proof of a mental state element such as intent. (See e.g., In Re Communication TeleSystems International (CTS), D.97-05-089, 72 CPUC2d 621, 642, Conclusion of Law 6.)
The OII also charges that Qwest has caused various unauthorized charges to be added to the customers' telephone bills. This practice, known as "cramming", is unlawful under § 2890.3 According to the OII, the highest percentages of complaints come from residential customers indicating Spanish or Asian languages as their preferred language.4
Additionally, the OII asks whether Qwest should be ordered to pay reparations pursuant to § 734, whether the Commission should order fines against Qwest pursuant to § 2107 and § 2108, and whether the Commission should order Qwest to cease and desist from any unlawful operations, or have special conditions imposed upon it. The investigation focuses on Qwest's alleged violations of § 2889.5 and § 2890 from January 1, 1999 through mid 2001.
Evidentiary hearings were held from May 3 through May 11, 2001. Briefing was complete with the filing of concurrent surreply briefs on June 20, 2001. In addition to Qwest and the Consumer Services Division (CSD), Greenlining Institute/Latino Issues Forum (Greenlining/LIF) participated in the evidentiary hearings and briefing.
We set aside submission in order to consider multiple motions made by Qwest commencing on August 17. The briefing on this series of motions was complete with the filing of Qwest's October 25, 2001 reply. The Commission held oral argument on July 18, 2002 at Qwest's request.
In this OII, CSD has the burden of proving that Qwest has failed to comply with relevant provisions of the Public Utilities Code, including § 2889.5 and § 2890. (See CTS, D.97-05-089, 72 CPUC2d 621, 642, Conclusion of Law 1.) CSD must prove this by a preponderance of the evidence. (72 CPUC 2d at 642, Conclusion of Law 2.)
2 Qwest is wholly owned by Qwest Communications International, Inc., which oversees a conglomerate of subsidiaries that provide telecommunications services to businesses and residential customers. 3 The OII charges that if the allegations are proven, Qwest has also violated § 451 [requiring all charges by public utilities to be just and reasonable and that a utility furnish just and reasonable service]; § 532 [requiring that no public utility shall charge a different compensation for any service other than the compensation specified in the tariffs]; § 702 [requiring every public utility to comply with every order decision or rule of the Commission] and Rule 1 of the Commission's Rules of Practice and Procedure [any person who transacts business with the Commission is required to comply with state law]. 4 This allegation derives from Pacific Bell's records which identify the preferred Asian languages as Chinese, Japanese, Korean, Tagalog, Mandarin, or Vietnamese.
