2. Procedural Background

Mpower filed motions for interim injunctive relief (September 27, 2002) and for expedited hearing (October 28, 2002). On November 15, 2002, the assigned Administrative Law Judge (ALJ) denied the motion for expedited hearing and set a prehearing conference (PHC). We held PHCs on November 26, 2002, and on February 19, 2003. Between the PHCs, Mpower and SBC California conducted discovery to determine whether there were disputed factual issues. Mpower stated factual disputes existed, and this matter was set for hearing on April 23 and 24, 2003. By a March 12, 2003 letter, the parties requested an extension of the schedule in order to complete discovery and better prepare for hearing or, alternatively, summary disposition of the issues in this proceeding. Hearings were rescheduled for June 11 and 12, 2003, and were held on June 11, 2003. Opening briefs were filed on July 3, 2003, and reply briefs were filed on August 8, 2003, on which date this matter was submitted.

On August 18, 2003, the parties contacted the ALJ and requested that the Commission delay issuance of the presiding officer's decision (POD) to enable the parties to discuss settlement. Settlement discussions were delayed due to scheduling conflicts and on October 2, 2003, the parties requested in writing extension of this proceeding beyond the one-year statutory timeframe and extension of the timeframe within which the POD must issue. In December 2003, the assigned ALJ requested an update on the settlement negotiations and the parties stated that they had been unable to reach a settlement agreement. On December 18, 2003, the parties confirmed the failure to reach settlement in writing and requested that the POD issue.