VI. Motion to Compel Compliance With Pub. Util. Code § 1706

A. Introduction

Execuline and Pac-West filed a motion on May 3, 1994 seeking to compel Westcom to comply with Pub. Util. Code § 1706. This motion was filed before Sunde's name was added as a complainant. Given the dismissal of this complaint, this motion is moot.

However, while this issue has been considered elsewhere, we do address the issue of whether, under the circumstances of this proceeding, Westcom and Sunde should be required to retain an attorney to represent them in future proceedings before the Commission.³⁰

Pub. Util. Code § 701 provides:

"The commission may supervise and regulate every public utility in the State and may do all things, whether specifically designated in this part or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction."

Included among that regulatory authority is the right to make orders and to formulate rules governing the conduct of the public utility. (East Bay Municipal Utility District v. Railroad Commission (1924) 194 Cal. 603, 612.)

Rule 63 provides in part that the presiding officer may set hearings and control the course of the hearings. The presiding officer may also "take such other action as may be necessary and appropriate to the discharge of his duties, consistent with the statutory or other authorities under which the Commission functions and with the rules and policies of the Commission."

As a public utility, and as an officer of a public utility, Westcom and Sunde, respectively, are obligated to obey and comply with every order, decision, direction, or rule made or prescribed by the Commission. (Pub. Util. Code § 702.) Our earlier discussion notes that the complainants' conduct in this proceeding appears to be in violation of Pub. Util. Code §§ 558 and 7903.

Westcom's conduct of patching into the conversations of unsuspecting third parties and asking certain questions, erodes our confidence in the ability of Westcom and Sunde to pursue this complaint without interfering with and intruding on a telephone customer's expectation of privacy. That was one of the reasons for granting the motions to dismiss the complaint.

This is not the first time that the complainants have conveniently overlooked the private nature of the information that they obtained in order to further their own objectives. In C.92-09-006, a complaint case filed by Westcom against Citizens Utilities Company of California (CUCC), Westcom sought to offer into evidence exhibits containing personnel information of a witness called by Westcom. The ALJ, on his own accord, sealed the records offered into evidence because of the private nature of the personnel records. (See Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 154-155; See C.92-09-006 and C.92-09-025, 4 R.T. 270-272, 7 R.T. 561, 570-571, 8 R.T. 691-693.) In addition, in C.92-03-049, a related complaint case involving Westcom and CUCC, Westcom used numerous telephone bills of Westcom's customers as evidence in that proceeding, without deleting customer specific calling patterns.

The addition and then subsequent deletion of Sunde as a complainant in this proceeding, and in the notice of intent to claim intervenor compensation and related amendment, have been troubling as well. After several pleadings associated with the addition of Sunde as a complainant were filed, Sunde decided to delete his name from the complaint. As discussed earlier, his motive for doing so is questionable. With little cost to the complainants, all of these activities have caused additional work and expense for the Commission and the defendants.

The conduct of Westcom and Sunde is not just limited to privacy concerns and suspect procedural maneuvering. Westcom's failure to obey D.92-08-028 was an issue in C.92-09-025, a complaint case related to C.92-09-006. The Commission previously noted in D.92-12-038 that "we are very concerned about Westcom's seemingly deliberate disobedience of a Commission order...." (D.92-12-038, p. 9.)³¹

All of the items mentioned above lead us to conclude that to prevent future abuses of the Commission's processes, the presiding officer should carefully consider requiring Westcom or Sunde to retain an attorney for any proceeding in which they appear and prohibiting Sunde or Westcom from acting as a representative on behalf of others in proceedings that may be filed at the Commission.

We have imposed similar restrictions on a complainant before. In D.88-03-080, we imposed conditions on an individual who was found to have frivolously filed complaints against an energy utility. The Commission noted in Conclusion of Law 2 at page 13 of D.88-03-080 that: "The Commission has the power to prevent its processes from being used for frivolous litigation for the purposes of vexation and harassment."

In addition, placing restrictions on the conduct of complainants is consistent with the theory behind the unclean hands doctrine. One of the reasons why that doctrine is used, is to protect the judicial forum's integrity from the improper action of a party. (Hall v. Wright (1957) 240 Fed.2d 787, 795.)

If the presiding officer decides to require Westcom or Sunde to retain an attorney in order to participate in a proceeding before this Commission, this will result in a check on the complainants' actions. If Westcom and Sunde decide to file motions, amend their pleadings, or engage in discovery, they will have to endure some of the financial burden just as the Commission and other parties have to do.

We are not convinced by the argument that, if, Westcom or Sunde is required to retain an attorney to represent their interests in proceedings before this Commission, such a requirement would be inconsistent with Westcom's right to due process and an opportunity to be heard. Westcom and Sunde could continue to participate in our proceedings provided a licensed attorney is retained. If such a requirement is imposed, this will help ensure that the Commission's processes are not subjected to abuse, it will shift some of the costs of participation onto Westcom or Sunde, and it will help safeguard the public's right to privacy.

³⁰ Due to our conclusions regarding the complainants' disregard of privacy rights, their abuse of the Commission's processes, the fact that Westcom's president is Sunde, that "Sunde is the primary individual responsible for uncovering and investigating the allegations contained herein, and will be the person primarily responsible for prosecuting this Complaint through the Commission" (Fourth Amended Complaint, p. 2), and the allegation that Sunde is the alter ego of Westcom, justifies the broadening of our inquiry into whether Sunde should also be required to be represented by an attorney in future Commission proceedings.

³¹ This issue was subsequently decided in D.00-09-071. In that decision, the Commission concluded that "Westcom failed to obey and comply with ordering paragraph 5 of D.92-08-028, and that Westcom's failure resulted in a violation of § 702." (D.00-09-071, p. 132.)