IV. Standard for Withdrawal of Applications

SBC California seeks the withdrawal of its application and, presumably, the closure of this proceeding. ORA, Greenlining and TURN (Consumer Groups) filed a joint response to SBC California's motion. SBC California subsequently replied to Consumer Groups' pleading.

Consumer Groups argue that SBC California cannot unilaterally withdraw its application on matters of public concern, particularly where the Commission and parties have invested substantial time and resources litigating the application. Consumer Groups state that SBC California's motion does not provide a rationale for terminating the proceeding. Consumer Groups observe that SBC California opposed the ALJ's proposal to close this proceeding on the basis that the parties had spent significant time in pursuit of resolving related issues, suggesting the Commission would shirk its regulatory responsibilities if it summarily closed the proceeding. Because the Commission decided to proceed with the application at SBC California's urging, Consumer Groups suggest SBC California reimburse the Commission for expenses incurred after the issuance of the scoping memo.

Consumer Groups suggest that the Commission prohibit SBC California from refiling a request that local DA be subject to Category III regulation within five years after dismissal of this Application. Consumer Groups argue this condition of withdrawal would prevent SBC California from "forum shopping" or refiling when the circumstances are more favorable to it, and would deter future attempts to employ withdrawal as a strategy in other proceedings. Consumer Groups also suggest the Commission reaffirm the value of conducting PPHs on this issue and state that any future application regarding DA services will include such hearings.

SBC California responded to Consumer Groups' comments. It states that the Commission has routinely permitted withdrawals of applications and has only denied such withdrawals where an applicant is motivated to avoid an adverse outcome after hearings. It states it is not motivated by such concerns and is not forum shopping. It objects to any limitations on its ability to seek recategorization of DA services in the future and to Consumer Groups' recommendation that SBC California reimburse the Commission and parties for work in this proceeding.

Discussion

The Commission has sole authority to close a proceeding. An applicant's motion to withdraw its application does not by itself, close a proceeding or change its status in any way. Although the Commission has usually granted such motions, the Commission may deny motions to withdraw when doing so is in the public interest and pursue matters of public concern after an applicant has moved to withdraw an application. (D.89-09-025, D.01-02-017, D.01-02-040.) The Commission may impose conditions on future applications even after an application is withdrawn and a proceeding is closed. (D.01-02-040.). Notwithstanding a party's wish to terminate its involvement in a Commission proceeding, the Commission expects the full cooperation of the applicant and any other party. In these ways, the Commission is unlike a civil court overseeing a lawsuit between two parties and need not follow a civil court's procedures in the pursuit of its obligations to the broader public. Indeed, the California Supreme Court has found that the Commission has a duty to the public that transcends that of a civil court litigating the claims of specific parties.¹

SBC California alleges the Commission has developed a limited "standard" for denying motions to withdraw applications, namely, that an application may not be withdrawn for the purpose of avoiding an adverse outcome. The Commission articulated this justification for denying a motion to withdraw in D.92-04-027. The order, however, does not and could not limit the Commission's discretion to deny a motion for withdrawal on other grounds and does not even suggest that a proceeding closes automatically at the discretion of the applicant.

Even assuming D.92-04-027 were an appropriate standard for denying a motion to withdraw an application, SBC California has not demonstrated, or even alleged, that its withdrawal is motivated by something other than a fear that its application will be denied. To the contrary, its November 12 "Notice of Withdrawal" suggests SBC California may have been motivated by a concern that the Commission would not grant its application. One cannot credibly allege unfairness of a decision-maker as justification for withdrawal of a motion while simultaneously arguing that one is not withdrawing to avoid an adverse outcome.