IV. The IECs' Motions to Dismiss

A. Position of the Parties

Call America argues that the December 7, 1994 amended complaint and the fourth amended complaint show that on at least 54 separate occasions, and on "hundreds" more occasions by the complainants' own admissions, "Westcom's employee and/or agents intercepted, interrupted, and interfered with third parties' long distance calls on the telephone networks" of Call America and other IECs. (Call America, Motion To Dismiss, p. 3.) Call America contends that the interception, interruption, and interference with the telephone calls of others are in violation of § 2511 of Title 18 of the United States Code (USC), California Penal Code § 631, and Pub. Util. Code §§ 7903 and 7904. Call America also asserts that Westcom's unauthorized monitoring of calls between third parties may also constitute eavesdropping upon confidential communications in violation of Penal Code § 632.

Call America claims that evidence of this misconduct appears in paragraph 21 of the December 7, 1994 amended complaint and the fourth amended complaint, and the exhibits attached to the December 7, 1994 amended complaint. Call America contends Westcom repeatedly and deliberately dialed a series of different telephone numbers for the express purpose of establishing a connection into the telephone conversation of an outgoing party. According to Call America, the exhibits to the amended complaints clearly show that Westcom's employees or agents were then able to question the calling and/or called parties to determine their names, addresses, telephone numbers and long distance carriers. For example, in some of the exhibits to the amended complaints, Call America alleges that the:

"... full names of calling and called parties, together with their locations, telephone numbers, and office positions, have been disclosed by Westcom without any concern for the breach of privacy involved in publication of such information. Westcom has also disclosed the company names, addresses and telephone numbers of business customers." (Call America, Motion To Dismiss, pp. 5-6, footnotes omitted.)

Call America argues that the parties, whose phone conversations were intercepted, could not be deemed to have consented to the disclosure of this information to Westcom's employees and agents.

Call America further argues that the activities and conduct of Westcom's employees and agents were intentional, as evidenced by the "Local Business Line Verification" forms that were attached to December 7, 1994 amended complaint as Exhibits 1 and 3. Call America contends that these exhibits show the complainants' repeated and systematic dialing of specified telephone numbers.¹⁰ Call America argues that the disclosure and use of the information by the complainants was the result of the unauthorized interception of third party telephone calls, and that the complainants' use of such information was in violation of Pub. Util. Code §§ 7903 and 7904.

Call America argues that the unlawful conduct by Westcom and Sunde should, at a minimum, result in the dismissal, with prejudice, of the complaint and all of the amendments. Call America also contends that the Commission should consider additional sanctions against Westcom and Sunde.

Execuline et al. contend that the complaint, and all of the related amendments, should be dismissed with prejudice because of Westcom's unlawful and unethical conduct in violation of 18 USC § 2511, Penal Code § 631, and Pub. Util. Code § 7903. They also contend that the unlawful conduct renders the illegally obtained information, as well as any evidence derived therefrom, inadmissible before a regulatory body such as this Commission. Execuline et al. also contend that Westcom's conduct is contrary to the Commission's policy of protecting telephone conversations, as expressed in the Commission's General Order 107. They further argue that each instance of Westcom's alleged violations also constitute Rule 1 violations.

Express Tel makes a separate argument that the complaint should be dismissed as to itself because the matters allegedly relating to Express Tel occurred in October 1992, more than two years before Express Tel was added as a defendant to the complaint. Express Tel argues that the addition of Express Tel as a defendant was therefore outside the statute of limitations as provided for in Pub. Util. Code § 735.

Pacific's response supports the motions to dismiss, and argues that regardless of whether Westcom violated the wiretapping law, the complaint should still be dismissed because Westcom's conduct violated its statutory obligation as a regulated public utility to act responsibly. Pacific also contends that the Commission has the authority to dismiss complaints such as this one because of the complainants' abuse of process.

Pacific argues that Westcom's behavior is unacceptable for five reasons. First, Westcom intentionally made telephone calls to intercept private telephone calls. Second, when Westcom intercepted the calls, Westcom's agents misled the calling parties into divulging private information. Third, Westcom's agents were acting under false color of authority so as to obtain information about the calling parties and their IECs, thereby infringing upon their privacy. Fourth, Westcom's agents acting under false color of authority, contacted the intended recipients of the intercepted calls and questioned them. And fifth, Westcom published the information that it obtained from the third parties, which further violated the privacy rights of the calling and called parties.

Pacific also recommends that each of the IEC defendants be required to certify their compliance with the access tariffs. Such certification should specify that each IEC is paying tariffed access charges and is not using business exchange lines in place of access. Pacific contends that a false certification, or the failure to file such a certificate, should result in the revocation of the IEC's certificate of public convenience and necessity.

The complainants filed separate responses to the motion to dismiss of Call America and to the joint motion of Execuline et al. The responses to the motions to dismiss are virtually identical.¹¹

The complainants contend that the initial investigation was conducted in late 1991 and early 1992. In the initial investigation, Westcom claims that it dialed a series of 11-digit interstate telephone numbers and, after obtaining a switch dial tone from the defendants' switches, Westcom dialed an authorization code followed by a long distance number. The call was then processed by the defendants' switches which resulted in completed long distance calls. The complainants assert that this initial investigation did not produce any evidence related to the patched calls, that the initial investigation is not related in any way to the later investigation regarding patched calls, and that the initial investigation has not been contaminated.

The complainants contend in their responses to the motions to dismiss that in "late 1993 and late 1994" they discovered another method of identifying unlawful circuits.¹² This method was as follows:

"Complainants simply dialed a series of eleven (11) digit, interstate telephone calls, dialable by the general public. This time however, defendant's switching systems caused Complainants' long distance calls to be `patched' or tied into the calling (outgoing) party from defendants' switches. A two party connection was established. Not one single such call resulted in a three (3) party conversation...." (Complainants' January 20, 1995 and January 24, 1995 Responses, p. 3, footnote omitted.)

The complainants assert that this patching problem occurred as a result of "glare." According to the complainants, glare usually occurs only on standard business lines and other two wire circuits. Had switched access services been used as required by law, the complainants argue that the glare would have never occurred.

The complainants argue that they were never connected to the called parties, and that the called party was never a party to the conversation between the calling party and Westcom's agents. The complainants contend that they were the "sender" of the two way telephone conversation, and thus, they did not intercept, eavesdrop or wiretap any conversations because the conversations only took place between the calling party and Westcom's agents. The complainants argue that one cannot intercept, eavesdrop, or wiretap one's own telephone conversations. According to the complainants, they simply placed phone calls, and "reacted in a fully lawful manner to defendants' negligent patching of calls together." (Complainants' Response, p. 9.)

The complainants also argue that in order to intercept a call, a communication must be acquired through the use of an electronic or mechanical device. The use of a standard telephone, such as what the complainants used, cannot on its own, intercept any communication. Instead, the complainants assert that it was the defendants' own switching systems which caused the patched calls to occur.

The complainants also argue that even though they did not intercept any communication, if it were assumed that the complainants did so, they were then acting under color of law as a private attorney general and such interceptions would not be unlawful under the exemption provided for in 18 USC § 2511(2)(c).

With respect to Express Tel's argument that the complaint should be dismissed against it because of the statute of limitations, the complainants argue that Express Tel continued to use business lines to carry interexchange traffic as recently as November of 1994. In support of that contention, the complainants attached Exhibit 7 and Sunde's affidavit to the response. In addition to this recent activity, the complainants argue that the statute of limitations was stayed when the complainants were effectively barred from filing any action, motion, or amendment in this case due to an order suspending discovery pending the outcome of the applications for rehearing of D.94-04-082.

B. Discussion

Before turning our attention to the IECs' motion to dismiss, we address the complainants' March 9, 1995 motion to amend its January 24, 1995 response to Execuline et al.'s motion to dismiss to include the Edwards' affidavit. The affidavit of Edwards was referred to in the complainants' response, and was attached to the complainants' earlier response of January 20, 1995. No one would be prejudiced by amending the January 24, 1995 response to include the Edwards' affidavit. Accordingly, the complainants' motion to amend the January 24, 1995 response to include the Edwards' affidavit should be granted.

The defendants' motions to dismiss are essentially based on the doctrine of unclean hands. That doctrine is based on the equitable principle that one who seeks equity must do so with clean hands. (D.88-11-051 [29 CPUC2d 549, 557].) In other words, whenever a party who has initiated judicial proceedings to obtain a remedy "has violated conscience, good faith or other equitable principle in his prior conduct, then the doors of the court will be shut against him..." and the court will refuse to acknowledge his right or to afford him any remedy. (Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d 280, 289-290.) The defendants contend that the complaint and the amendments should be dismissed due to the complainants' improper conduct in connection with this proceeding.

In determining whether the doctrine of unclean hands should be applied so as to bar the complainants, we should weigh the relative extent of each party's wrong upon the other and upon the public, and strike an equitable balance. (Republic Molding Corporation v. B.W. Photo Utilities (1963) 319 Fed.2d 347, 350.) In the proceeding before us, we have, on the one hand, the complainants' allegations that the defendants have used business and/or Centrex lines, instead of switched access service, to carry interexchange traffic. On the other hand, the defendants allege that the complainants' conduct violated various laws and that the complainants invaded the privacy rights of the calling and called parties.

With respect to the defendants' arguments that the complainants have violated several different federal and state laws, the complainants argue that either the terms of the statutes do not apply to them, or that they fall within one of the exceptions to the statutes.

In deciding whether the doctrine of unclean hands should apply, we do not have to determine if each of the elements of the statute that the complainants are alleged to have violated is present. That is, the complainants' conduct need not be such as to constitute a crime, be punishable, be actually fraudulent, or be the basis for a cause of action. Instead, it is sufficient that the conduct violates conscience, or good faith. (Seymour v. Cariker (1963) 220 Cal.App.2d 300, 305; Katz v. Karlsson (1948) 84 Cal.App.2d 469, 474-475.) Or the conduct may be rendered unclean because in the eyes of honest and fair minded persons, the conduct that was undertaken in connection with the proceeding is wrong and should be condemned. (Bennett v. Lew (1984) 151 Cal.App.3d 1177.)

Although the various code sections regarding the interception and eavesdropping cited by the defendants may or may not exactly fit the complainants' conduct, it is our belief that the complainants' conduct impinged upon the privacy rights of the calling and called parties. Those privacy rights and concerns are expressed in various statutes, Commission decisions, and in General Order 107-B.

The overriding concern of Congress in enacting the federal wiretap provisions was the protection of privacy of wire and oral communications. (Lam Lek Chong v. United States Drug Enforcement Administration (1991) 929 Fed.2d 729, 732; United States v. Clemente (1979) 482 F.Supp. 102, 106.)

In Penal Code § 630, the Legislature set forth its declaration of policy regarding eavesdropping upon private communications. The Legislature states in pertinent part:

"The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.

"The Legislature by this chapter intends to protect the right of privacy of the people of this state." (Penal Code § 630.)

In Pub. Util. Code § 2891(a)(1), safeguards are in place to prevent the release of a residential telephone customer's calling patterns. This code section provides in pertinent part:

"(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber's consent, in writing, any of the following information:

"(1) The subscriber's personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893...."

When the Legislature enacted Pub. Util. Code § 2891, it stated in Section 1 of Chapter 821 of the 1986 Statutes that:¹³

"The Legislature hereby finds and declares that residential telephone and telegraph customers and subscribers have a right to private communications, that the protection of this right to privacy is of paramount state concern, and to this end, has enacted this act."

Pub. Util. Code § 2893(a) requires that every caller identification service offered in this state shall allow a caller to withhold display of the caller's telephone number. In Section 1 of Chapter 483 of the 1989 Statutes, which added Pub. Util. Code § 2893, the Legislature declared the following:¹⁴

"(a) Telephone subscribers have a right to privacy, and the protection of this right to privacy is of paramount state concern.

"(b) To exercise their right of privacy, telephone subscribers must be able to limit the dissemination of their telephone number to persons of their choosing."

In the caller identification decision, the Commission noted that in November 1972, the voters of California amended Article I, Section 1 of the California Constitution to include the right of privacy among the inalienable rights of all people. The Commission recognized that the language and spirit of the 1972 amendment allows for the protection of a privacy interest even though the interest was not expressly targeted for protection. That is, the right of privacy "is implicated whenever a person reasonably believes that an inquisitive action has been taken...." (D.92-06-065 [44 CPUC2d 694, 707-709].)

General Order 107-B includes regulations governing how telephone corporations may monitor or record telephone conversations. In addition, the General Order contains a requirement that each telephone corporation subject to the Commission's jurisdiction maintain a set of instructions for its employees regarding what steps have been taken to ensure the privacy or secrecy of the telephone communications.

There are several reasons why we conclude that the complainants' conduct was reprehensible and interfered with the privacy rights of the calling and called parties. However, before we explain our reasons for that conclusion, it is helpful to describe the manner and method in which Westcom's agents were able to patch into other telephone calls.

It appears from the exhibits attached to the December 7, 1994 amended complaint, which were incorporated by reference into the subsequent amended complaints, and the description in the complainants' responsive pleadings, that Westcom's agents were calling into the telephone lines of the IEC defendants. At approximately the same time, the calling party was attempting to place a call to the called party.¹⁵ One of two things appears to have happened. Westcom was able to patch into an ongoing two-way conversation between the calling party and the called party, at which point Westcom asked questions of both the calling and called parties. Alternatively, if no three-party conversation occurred, as alleged by the complainants, then what is likely to have happened is that after Westcom's agent questioned the calling parties as to their identity, the number they were calling from, who their IEC was, and who they were trying to call, the Westcom agent then disconnected and subsequently dialed the number of the party whom the calling party had intended to call to determine who the called party's IEC was.

The first reason why we believe the complainants' conduct was reprehensible and amounts to unclean hands is because of the manner in which Westcom's agents patched into the conversations of the calling parties. Westcom's activities interfered with, and prevented a connection between the calling party and the called party. Although Westcom argues that it did not intercept, eavesdrop, or wiretap any of the calls, and that the patching occurred as a result of glare and switching problems, Westcom did not specifically address the defendants' arguments that the complainants interfered and delayed the calls of the calling parties.

Under Pub. Util. Code § 558, every "telephone corporation ... operating in this State shall receive, transmit, and deliver, without discrimination or delay, the conversations and messages of every other such corporation with whose line a physical connection has been made."¹⁶ We recognize that Westcom was not the calling party's IEC, but it is a telephone corporation subject to this Commission's jurisdiction. When Westcom patched into the calling party's call, Westcom made a physical connection with the calling party's line. By patching in and interrupting the calling party's call, and asking questions of the calling party, Westcom and its agents prevented the transmission and delivery of the call to the called party.

The complainants' argument that the patching was the fault of the defendants ignores the fact that Westcom's agents repeatedly dialed selected telephone numbers for the express purpose of patching into a calling party's call that was intended to connect with someone other than the complainants. Under the circumstances, Westcom's conduct cannot be portrayed as accidental or inadvertent interruptions. Instead, as shown by Exhibits 1 and 3 to the December 7, 1994 amended complaint, Westcom's conduct can best be characterized as intentional. We can also surmise that Westcom's agents made numerous other unsuccessful attempts at patching as well, as evidenced by Westcom's statement in its December 7, 1994 amended complaint that "Westcom was `patched' into hundreds of outgoing calls...." (December 7, 1994 Amended Complaint, p. 12.) By engaging in this conduct, the complainants on numerous occasions prevented the calling party's call from connecting to the called party. Such conduct by the complainants also borders on a possible violation of Pub. Util. Code § 2110.¹⁷

Our second reason why we believe the complainants' conduct was reprehensible and amounts to unclean hands is because of the manner in which the information was obtained from the calling parties and the called parties. In the defendants' motions to dismiss, they questioned the manner in which Westcom's agents represented themselves to the calling parties and to the called parties. The complainants contend that the calling parties voluntarily gave the information to the complainants. However, the complainants have not explained in their responses to the motions to dismiss what they said, or who they represented themselves to be, when they spoke to the calling and called parties.

When the calling party attempted to make a call, the calling party did not expect to talk with Westcom's agents, but rather expected to talk with the party whom the calling party was attempting to call. Upon patching into a conversation where Westcom was not the intended recipient, Westcom's agent was able to ask for the name of the calling party, the number that the party was calling from, the number the party was trying to call, and which IEC the calling party was using.

When a telephone customer is asked a series of questions about customer specific information by someone who interrupts a telephone call, it is reasonable for the calling party to assume that the questioner is the telephone operator. Regardless of whether Westcom's agents represented themselves as Westcom, or if they represented themselves as an operator for the LEC or the calling parties' IEC, it is clear that some of the calling parties and called parties were reluctant or refused to disclose certain information to Westcom's agents as evidenced by some of the "local business line verification" forms attached to the exhibits in the December 7, 1994 amended complaint. Thus, we cannot assume that the calling and called parties voluntarily gave the complainants their informed consent for the release of customer specific information, and Westcom's assertion that the information from the calling parties was voluntarily given must be rendered suspect. Westcom's gathering of this information is especially troubling in light of the various statutes seeking to protect the privacy of telephone customers.

The complainants' conduct may also be in violation of Pub. Util. Code § 7903.¹⁸ Westcom's agents were able to acquire and obtain information by patching into the calling party's call, presumably by representing themselves as an agent, operator, or employee of a telephone company. The use of that information in the amended complaints is now being used, arguably, to the complainants' "own account, profit, or advantage."

Further, we are not persuaded by the complainants' arguments that their conduct was justified because they were acting under color of authority. At the time the complaints and amendments were filed, Westcom was a certificated public utility and was not a law enforcement agency. The complainants have not alleged that any of Westcom's employees or agents were governmental employees acting under the color of law. (See Thomas v. Pearl (7th Cir. 1993) 998 F.2d 447, 450-451.) The complainants also referenced the private attorney general concept as justification for their conduct. However, that concept does not pertain to one's law enforcement authority, which, in the case of Westcom, does not exist. Rather, that concept is an equitable theory upon which an award of attorney's fees can be based. (Serrano v. Priest (1977) 20 Cal.3d 25, 42-43.)

Our third reason why we believe the complainants' conduct was reprehensible and amounts to unclean hands is because the information obtained from the calling and called parties impinged upon the privacy rights of those telephone customers from whom the information was extracted.

Westcom's patching into a calling party's call is analogous to Westcom's use of a caller identification system. Instead of having the caller's telephone number displayed, Westcom's agents apparently asked the calling party to provide their name, and the telephone number of both the calling party's number and the number of the party the calling party was trying to reach. It does not appear from the exhibits attached to the December 7, 1994 amended complaint that Westcom's agents informed the calling parties that they had the right to withhold that information, as provided for in Pub. Util. Code § 2893(a).¹⁹ Although the exhibits show that some of the callers refused to reveal that information, in the majority of the calls listed, the calling party provided the information. Obtaining customer specific information from the calling parties, possibly under false pretenses, and using that information to call up the party whom the calling party had intended to call, offends the notion that some people may not have wanted this information disclosed at all. Such questioning also appears to have been done without regard for the privacy concerns of the calling parties as well as the called parties.

In addition, the complainants' questioning of the callers sought to elicit information about the calling pattern of the calling parties. Although Pub. Util. Code § 2891 appears to apply only to residential telephone customers, the idea that someone can obtain and disclose the calling patterns of business telephone customers without their consent is reprehensible as well.

The complainants' conduct, however, must be weighed along with the allegations against the defendants. As the courts have recognized, the doctrine of unclean hands should not be applied where to do so would create an injustice or if the act being complained about is against public policy. (Health Maintenance Network v. Blue Cross (1988) 202 Cal.App.3d 1043, 1061; Jomicra, Inc. v. California Mobile Home Dealers Assn. (1970) 12 Cal.App.3d 396, 402; Hill v. Younkin (1969) 274 Cal.App.2d 880, 883; Kofsky v. Smart & Final Iris Company (1955) 131 CalApp.2d 530, 532.)

In D.94-04-082, the interim opinion in this proceeding, the Commission expressed a reluctance to dismiss the complaint against Call America and Execuline et al. because of possible wrongdoing by the defendants. (54 CPUC2d at pp. 252-254.) The Commission stated:

"In deciding these motions, we want to balance the competing interests of the defendants who may be required to defend, and the possibility that activities in violation of our rules, orders, and decisions have or are taking place." (54 CPUC2d at 249.)

The Commission also expressed concern in the interim opinion about the complainants possible abuse of the Commission's processes. (54 CPUC2d at pp. 253, 264.)

In balancing the complainants' behavior with the allegations against the defendants, we must ask ourselves whether the complainants' unclean hands prejudiced the defendants or if it affected the equitable conduct between the litigants. The misconduct must be so intimately connected to the injury of another with the matter for which the plaintiff seeks relief. (Tinney v. Tinney (1963) 211 Cal.App.2d 548, 555; Treager v. Friedman (1947) 79 Cal.App.2d 151, 173.)

The complainants contend that the original investigation did not involve any patching of calls. If the later investigative methods are determined to be unlawful, the complainants contend that the latter method should not contaminate the initial investigation.

We believe the complainants' reasoning is in error. The amended complaints incorporate the allegations derived from the initial investigation, as well as the investigative methods that the complainants employed in late 1993. The complainants have not sought to amend the complaint by deleting the allegations arising from the latter investigative methods used by the complainants.

The complainants' conduct prejudiced the defendants and their customers, and tainted the initial investigation, because Westcom was able to obtain customer specific information from the IECs' customers. This was information for which the calling parties had a reasonable expectation of privacy. In addition, the calling parties' calls were either interrupted or delayed as a result of the complainants' actions. Although the complainants' conduct apparently was intended to produce evidence supporting the allegations, the conduct of the complainants was reprehensible and amounts to unclean hands because it infringed upon the privacy rights of the customers of the IECs. The complainants' conduct was not isolated, but instead was a deliberate attempt to obtain as much information from the defendants' customers as possible. These activities are directly related to the allegations for which the complainants seek relief and, thus, the latter investigative methods employed by the complainants tainted the earlier investigation.

The allegations concerning the defendants' conduct must also be taken into account. If the allegations against the defendants are true, the defendants should not be entitled to profit from their wrongful conduct. (Insurance Company of North America v. Liberty Mutual Insurance Company (1982) 128 Cal.App.3d 297, 307-308.) As the Commission recognized in D.94-04-082, even if Westcom has unclean hands, it would not benefit the public interest if Westcom's allegations were to go unchecked. (54 CPUC2d at 253-254.) One of the defendants, Pac-West, admitted in its September 18, 1992 answer to the initial complaint (at paragraph 24 on page 4) that in one instance involving three trunk groups, business lines were used to provide interexchange carrier services to Pac-West customers. If other defendants engaged in the same type of conduct, as alleged by the complainants, switched access revenues could have been affected as a result.

In weighing and balancing whether the defendants' motions to dismiss should be granted because of the complainants' conduct, we conclude that under the circumstances, the complainants' conduct is sufficient to merit the granting of the motions to dismiss. The complainants' repeated attempts to patch into the calls of the defendants' customers violated the privacy rights of those customers. In doing so, the complainants' conduct may have violated a number of laws and regulations. The complainants' reprehensible conduct, as discussed earlier, should bar the complainants from seeking a remedy before the Commission. Accordingly, the motions to dismiss that were filed by Call America and Execuline et al. should be granted with prejudice.²⁰

Express Tel made a separate argument that the complaint should be dismissed against it because the statute of limitations had expired. Express Tel contends that a review of Exhibit 3 to the December 7, 1994 amended complaint shows that the time period in which Express Tel allegedly engaged in unlawful conduct occurred in late October 1992. Express Tel argues that the applicable statute of limitations was two years and that a complaint should have been filed by October 1994. The complainants, however, did not file the third amended complaint naming Express Tel as a defendant until December 7, 1994.

The complainants' January 24, 1995 response to Express Tel's argument asserts that, as late as November 1994, Express Tel customers were still using illegal lines to carry interexchange traffic, as evidenced by Exhibit 7 to the complainants' response and Sunde's affidavit in support of the complainants' response.

We first dispose of the complainants' argument that the statute of limitations period should be extended because of the complainants' perception that they were prevented from filing the amended complaint within the two-year period.

The complainants assert that the ALJ ruling of June 20, 1994 prevented them from filing an amended complaint. That ruling did not prohibit the complainants from filing an amended complaint. All that ruling did was to suspend discovery until the applications for rehearing of D.94-04-082 were resolved. (See June 20, 1994 ALJ Ruling.) It has been the Commission's experience that Westcom and its president, Sunde, have not hesitated to file pleadings when they believe it is in their interest to do so as evidenced by the complainants' numerous pleadings, as well as the complainants' filings in the Superior Court and the Supreme Court regarding this proceeding.²¹ However, when Westcom fails to file a pleading in a timely manner, Westcom seeks an excuse for its actions. (See D.92-12-038, fn. 2; D.94-10-061 [57 CPUC2d at pp. 121, 123]; D.00-09-071, pp. 126-131.)

The statute of limitations argument of Express Tel raises the issue of whether we should permit the use of the information generated from the complainants' conduct. That is, the complainants' allegations against Express Tel are based on the complainants' conduct which allegedly took place in October 1992 and November 1994. If the complainants' gathering of the information in November 1994 was based on illegal conduct, then arguably, Penal Code §§ 631(c) and 632(d) prevent the use of that tainted information in proceedings before this Commission.²²

As we discussed in D.94-04-082, as modified by D.94-10-061, the applicable statute of limitations is two years. (54 CPUC2d at 251-252; See 57 CPUC2d at 124.) Thus, for any alleged unlawful conduct that occurred in or prior to October 1992, a complaint should have been filed by October 1994. The complainants failed to do so.

The complainants argue, however, that because Express Tel continued to engage in the same kind of conduct in November 1994, the filing of the complaint in December 1994 was timely. The problem with this argument is that the alleged wrongdoing in November 1994 was only uncovered as a result of the complainants' reprehensible conduct, as described earlier. Consistent with Penal Code §§ 631(c) and 632(d), any evidence uncovered as a result of the complainants' actions would not be admissible in any administrative proceeding. Accordingly, Express Tel's motion to dismiss the complaint should be granted.

¹⁰ Exhibits 1 and 3 purportedly show some or all of the following: the telephone number that Westcom's agent dialed into so as to enable it to patch into a calling party's call; the calling party's name, telephone number, and IEC; and the called party's name, telephone number, and IEC.

¹¹ The complainants' responses differ somewhat in their arguments as to why the defendants' attorneys should be sanctioned and removed. The complainants' motions regarding the attorneys representing the defendants are discussed later in this decision.

¹² In the complainants' February 9, 1995 response to Execuline et al.'s motion for leave to file a reply at page 4, the complainants acknowledged that the reference to "late 1993 and late 1994" was a result of a proofreading error. It appears, based on Exhibits 1 and 3 to the December 7, 1994 amended complaint, that the complainants had meant to refer to late 1992 as the time period in which they discovered another method of identifying unlawful circuits.

¹³ This code section was subsequently amended by Chapter 214 of the Statutes of 1994.

¹⁴ This code section was subsequently amended by Chapter 675 of the Statutes of 1996.

¹⁵ See Complainants' January 20, 1995 and January 24, 1995 Responses, pp. 2-5; Sunde Affidavit In Support Of Complainants' Responses, pp. 4-5.

¹⁶ We believe that an analysis using Pub. Util. Code § 558 is more appropriate than Call America's argument that Westcom violated Pub. Util. Code § 7904. The wording of Pub. Util. Code § 7904 appears to require that the telephone message be sent to and received by the office of the telephone corporation. Under the circumstances, it appears that a physical connection occurred as a result of the patching, but it cannot be said that the calling party was attempting to send the call through Westcom.

¹⁷ Pub. Util. Code § 2110 provides: "Every public utility and every officer, agent, or employee of any public utility, who violates or fails to comply with, or who ... aids, or abets any violation by any public utility of any provision of the Constitution of this state or of this part, or who fails to comply with any part of any order, decision, rule ... or requirement of the commission, or who ... aids, or abets any public utility in such violation or noncompliance in a case in which a penalty has not otherwise been provided, is guilty of a misdemeanor...."

¹⁸ Pub. Util. Code § 7903 provides as follows: "Every agent, operator, or employee of any telegraph or telephone office, who in any way uses or appropriates any information derived by him from any private message passing through his hands, and addressed to any other person, or in any other manner acquired by him by reason of his trust as such agent, operator , or employee, or trades or speculates upon any such information so obtained, or in any manner turns, or attempts to turn, the information so obtained to his own account, profit, or advantage, is punishable by imprisonment in the state prison, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment."

¹⁹ Pub. Util. Code § 2893(a) provides in pertinent part: "The commission shall ... require that every telephone call identification service offered in this state by a telephone corporation, or by any other person or corporation that makes use of the facilities of a telephone corporation, shall allow a caller to withhold display of the caller's telephone number ... from the telephone instrument of the individual receiving the telephone call placed by the caller."

²⁰ Pacific's abuse of process argument, discussed later in this decision, and the Commission's concern in D.94-04-082 over the complainants' possible abuse of process and lack of candor in its pleadings, are additional reasons justifying dismissal of the complaint. (See 54 CPUC2d at pp. 253-254, 262.)

²¹ See California Supreme Court Case No. S044421 and San Francisco County Superior Court Case No. 959844.

²² Penal Code §§ 631(c) and 632(d) essentially state that any evidence obtained as a result of unauthorized wiretaps or eavesdropping shall not be admissible in any administrative proceeding.