II. DISCUSSION

A. Express' Move to Fifth and Davis Streets Did Not Comply With D.99-02-068.

D.99-02-068 prohibited Express from providing service from the Hotel La Rose. Express reasserts its claim that it did not violate D.99-02-068 when it operated from Fifth and Davis Streets, even though that location was only 200 feet east of that hotel. (Application for Rehearing, pp. 3-9.) We continue to disagree with the contention that the move to Fifth and Davis Streets complied with the language and the spirit of D.99-02-068 and the stipulations on which that decision was based. (D.00-07-051, p. 6.) Whether the location was 100 feet, 200 feet, or 300 feet away from the hotel was not controlling. Passengers waiting in the nearby location would still be present in the same immediate area around the hotel while awaiting service from Express. Thus, Express deliberately violated our order prohibiting it from continuing service at Hotel La Rose. It then filed related tariffs that falsely asserted that the move to Fifth and Davis complied with D.99-02-068. Noncompliance with our order and the stipulations on which it was based fully justifies the $54,000 penalty.

In sum, Express has failed to cite any basis for its claim of legal error that would convince us to reverse our Decision. Instead, Express essentially argues that we should have reached a different conclusion from the same facts.

B. The Imposed Fine Achieves the Objective of Deterrence without Being Excessive.

Express also alleges that our denial of its Petition to Set Aside Submission and consequently our unwillingness to admit into the record information regarding Express' financial condition was unlawful. (Application for Rehearing, p 9.) Express bases its claim of legal error on its contention that the Decision improperly departed from existing precedent, specifically D.98-12-075, which it argues requires the Commission to take into account the financial condition of any regulated entity that is penalized. It maintains that as a result of our alleged failure to consider its financial data, we assessed an excessive fine against it. (Id., p. 11.)

Express' claim has no merit. It was Express' responsibility to provide information regarding its financial condition on the record prior to the submission of the proceeding. It had an opportunity to make such a showing as part of its mitigation presentation. Having chosen not to do so, it is barred from arguing that the Commission failed to take its ability to pay the fine into consideration. (People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal.App.3d 683, 686; Prime Time Shuttle Int'l v. CPUC (1998) 31 F. Supp.2d 743, 751.)

At any rate, we did apply the penalty principles set forth in D.98-12-075. (D.00-07-051, pp. 14-16.) We first did so when determining the severity of the offense and when considering mitigating factors that should be taken into account for determining the appropriate remedy. (Id.) We noted that there was a continuing deliberate violation of D.99-02-068 and the agreement made between Express, Airporter, and the City of Santa Rosa.¹ (Id.) This combined with Express' deceptive behavior, including its attempt to disguise its move from the Commission by claiming in its filed tariffs that the move was made to comply with D.98-12-075, resulted in a high level of severity for Express' unauthorized actions. (Id.) We decided against suspension or revocation of Express' authority because it would unreasonably put the public at risk. (Id.) However, we had, and continue to have, no doubt that a financial penalty was appropriate for Express' unlawful operations. (Id.)

We also applied the fining principles in D.99-12-075 when determining the appropriate fine level within the penalty range that we are mandated to rely upon pursuant to Public Utilities (PU) Code Section 2107.² That section states that any fine we impose must be no less than $500 and no more than $20,000 for each offense. ³. (Id., pp. 14-16.) D.98-12-075 provides that the fine level should be adjusted to achieve the objective of deterrence, without becoming excessive, based on each utility's financial resources. (D.98-12-075, mimeo, p. 39.) We considered the company's ability to pay based upon the evidence we had before us. (D.00-07-051, p. 15.) The record revealed that Express is not a major, publicly held utility. It is a relatively small company with 63 employees, 50 of whom were employed full-time. (Id.) Therefore, despite Express' failure to detect, disclose, and prevent or rectify its unlawful actions, we determined that Express should be fined $500 for each offense, the minimum fine permitted under Section 2107. Additionally, we provided for Express to make payments on a monthly installment basis for three years to ease the impact of the fine. Thus, Express has failed to establish legal error in the assessment of the $54,000 fine.

C. Express' Claim Of Bias And Prejudice Is Untimely and Factually Unsupported.

Express has raised for the first time an allegation that the ALJ was biased and prejudiced against it. It asks that the Decision not be allowed to stand. (Application for Rehearing, p. 12.) Its bias claim springs solely from an alleged conversation that took place on February 8, 2000 in which a member of the Commission staff allegedly commented during a conversation with company representatives that the ALJ might have a bias against Express. ⁴

Pursuant to Rule 63.4, sections (a)(2) and (b) of our Rules of Practice and Procedure, Express was required to file a petition for reassignment no later than 10 days after the date that it discovered the ALJ's alleged bias and prejudice.⁵ Express failed to raise this issue from February 8, 2000 until August 23, 2000, a period of six and one-half months. Therefore, its failure to raise the issue in a timely fashion amounts to a waiver of its bias claim.

Even if Express' claim of bias had been timely raised, Express has failed to provide adequate support for its allegation. It has not proferred any affirmative evidence beyond its allegation in its rehearing application from which a reasonable person could find the requisite impermissible behavior that might constitute bias or prejudice. It would be unreasonable to set aside the Decision based solely on the alleged speculative hearsay statements of the staff member. We therefore reject Express' claim of bias and prejudice on the part of the ALJ because it is out of time and because it lacks adequate support.

D. Express' Request for Oral Argument Is Denied.

Finally, Express requests permission to reopen the proceeding so that it can present oral argument. However, it does not present a compelling reason for us to grant oral argument and thereby further delay the implementation of our Decision. We therefore reject Express' request for oral argument.