III. November 21, 2003 Notice of Withdrawal

We hereby affirm the ALJ's ruling which rejected the filing of SBC California's November 21 "Notice of Withdrawal of Application." The ALJ's ruling correctly finds that only the Commission has the authority to close or dismiss a contested proceeding. (Decision (D.) 92-04-027, D.03-07-032.)

Because the November 21, 2003 pleading was never filed in its original form, we do not address its allegations here in any depth. We affirm, however, that SBC California has not presented any evidence to suggest it cannot expect a decision based on the record evidence of the proceeding. SBC California has not on the record of this proceeding appealed any element of the scoping memo or objected to the Commission's decision to conduct PPHs. In fact, SBC's attorney stated that SBC would not oppose PPHs at the November 19, 2002 PHC (TR 39), as follows:

ALJ Bemesderfer: "Does Pacific Bell have any thoughts about the desirability of public participation hearings?"

Mr. Thompson: "Pacific Bell would not oppose them."

In its comments on the proposed decision, SBC California asserts the proposed decision's reference to this transcribed comment "is taken entirely out of context and is, therefore, misleading." It makes this claim on the basis that it objected to evidentiary hearings. It is true that SBC California objected to hearings in this case but we find no evidence in the record of the proceeding that SBC California objected to PPHs. The proposed decision does note that SBC California objected to PPHs during a conference call between the ALJ, SBC California and several parties on October 14, 2003. During that call, SBC California's counsel was told by the assigned ALJ that she did not have authority to overturn the scoping memo and suggested filing a motion to modify the scoping memo's requirement that the Commission conduct PPHs. Accordingly, the assertion that the proposed decision is misleading is without support.

To SBC California's claim that the Commission has never conducted PPHs for a recategorization of a service, it should be noted that the Commission is not bound by the policies or practices adopted by past decisions as long as it has provided notice and an opportunity to be heard, consistent with Pub. Util. Code § 1708. Finally, the Supreme Court has found that the Commission must conduct its proceedings in ways that promote the interests of the public. (California Motor Transport Company vs. California Railroad Commission, 30 Cal2d 184.) Accordingly, an applicant seeking Commission action on an issue of public concern should not be surprised if it is expected to submit its proposal to public scrutiny through a PPH.