ALJ/JJJ/k47 Mailed 11/22/2000

Decision 00-11-038 November 21, 2000

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Cox California Telcom, L.L.C. dba Cox Communications (U-5684-C), Complainant, vs. Crow Winthrop Development Limited Partnership, Defendant.

(EDM) Case 00-05-022 (Filed May 10, 2000)

OPINION DISMISSING COMPLAINT

TABLE OF CONTENTS

Title Page

OPINION DISMISSING COMPLAINT 1

I. Summary 2

II. Background 2

A. Public Utilities Code § 625 2

B. Procedural Background 4

C. Other Administrative and Court Actions 7

1. Jamboree Superior Court Action 7

a. Relationship Between Crow Development and Jamboree 7

b. Allegations in Jamboree Superior Court Action 8

2. Cox Superior Court Action 9

3. C.00-05-023 (Related Commission Complaint) 10

III. Discussion 11

A. Overview 11

B. Necessity is a vital determination in a § 625 action 12

C. Whether or not Cox has existing access rights to the easements in

question is critical to determining necessity 13

D. Cox's entitlement to access the easements is currently being litigated

in the Superior Court 13

E. Logic and efficiency support a dismissal of this case without prejudice 15

F. Dismissal of this case without prejudice is consistent with a proper understanding of the primary jurisdiction doctrine 18

IV. Comments on Draft Decision 20

Findings of Fact 21

Conclusions of Law 23

ORDER 24

OPINION

I. Summary

Cox California Telcom, L.L.C. dba Cox Communications (Cox) brings this complaint against Crow Winthrop Development Limited Partnership (Crow Development) pursuant to Pub. Util. Code § 625. Cox requests the Commission find in the public interest the proposed condemnation of certain easements Cox believes are necessary for it to provide competitive telephone utility service. We determine that the complaint is premature and should be dismissed without prejudice.