V. Comments Draft Decision

The Commission mailed the draft decision of the ALJ in this matter to the parties in accordance with Section 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed by Pacific and AT&T Communications of California (AT&T), and reply comments were filed by AT&T.

Pacific contends the draft decision contains two errors. First, Pacific maintains the fine is not warranted because the violation did not harm anyone or anything. Second, Pacific finds the decision disturbing because the Commission is selectively enforcing its own rules by fining Pacific for this violation while taking no action on unreported ex parte contacts during the course of this proceeding. Specifically, on this last point, Pacific describes a discussion during the Commission's public vote on May 16, 2002 regarding the draft order and alternate orders on interim UNE pricing wherein the Commissioners alluded to an agreement by AT&T, WorldCom and Z-Tel - three CLC's that are parties to this proceeding-not to oppose Pacific's §271 Application in exchange for the Commission voting in favor of the Lynch Alternate that became D.02-05-042. Pacific contends that this "agreement" is not reflected in any ex parte filings from those meetings, even though the Commissioners specifically requested that the CLC's amend their ex parte filings to reflect this agreement.

AT&T supports the draft order as written. In response to Pacific's comments, AT&T disputes Pacific's allegations but does not comment on them directly because it believes they are not pertinent to the violations discussed in the draft order.

We make no changes to the draft order in response to Pacific's comments. First, on the subject of harm, the decision already describes the harm to the regulatory process and potential for prejudice to parties from ex parte violations of this type and we will not condone them by acquiescing on penalties in this circumstance. Second, Pacific has reminded us that other potential ex parte violations may have occurred during the course of this proceeding by pointing out that ex parte filings may not have been adequate in disclosing certain "agreements." Pacific accuses us of selectively enforcing our rules. We do not mean for this to be the case, and with the reminder that Pacific has provided, we will pursue this issue as we find appropriate. Nevertheless, Pacific's finger-pointing at other parties, even if these accusations ultimately withstand scrutiny, does not convince us to ignore the violations found in this order.