XIII. Assignment of Proceeding
Michael R. Peevey is the Assigned Commissioner and John Wong is the assigned Administrative Law Judge in this proceeding.
1. At the time the complaint was filed, Westcom was a certificated IEC.
2. Westcom's CPCN was revoked by Commission Resolution T-16529 on June 14, 2001.
3. A complaint, an amendment to the complaint, and six amended complaints have been filed in connection with this proceeding.
4. Westcom's president, J. Michael Sunde, was added as a complainant in the fourth amended complaint that was filed on December 28, 1994.
5. In the sixth amended complaint filed on June 23, 1995, the references to Sunde as a complainant were removed.
6. In January 1995, Call America and Execuline et al. filed motions to dismiss the complaint and all of the amendments to the complaint on the basis that the complainants had unlawfully intercepted the wire communications of third parties, and invaded their privacy.
7. On June 2, 1995, Pacific filed a motion to dismiss the complaint because of the complainants' alleged abuse of the Commission's processes.
8. The exhibits attached to the December 7, 1994 amended complaint show that Westcom's agents were calling into the telephone lines of certain IEC defendants and were also able to patch into outgoing telephone calls.
9. The complainants' conduct was reprehensible because of the manner in which Westcom's agents patched into the conversations of the calling party.
10. Westcom's activities interfered with, and prevented a connection between, the calling party and the called party.
11. Westcom's agents repeatedly dialed selected telephone numbers for the express purpose of patching into a calling party's call.
12. Westcom's conduct regarding the patching of calls was intentional as is evidenced by the exhibits to the amended complaint.
13. The complainants' conduct, which prevented the calling party's call from connecting to the called party, also borders on a possible violation of Pub. Util. Code § 2110.
14. The complainants' conduct was reprehensible because of the manner in which the information was obtained from the calling parties and from the called parties.
15. When a telephone customer is asked a series of customer specific questions by someone who interrupts a telephone call, it is reasonable for the calling party to assume that the questioner is the telephone operator.
16. The complainants were not acting under color of authority when they patched into calls and questioned the calling parties.
17. The June 20, 1994 ALJ Ruling did not prevent the complainants from filing an amended complaint naming Express Tel as a defendant.
18. The July 31, 1995 motion of the IECs to supplement the record with newly discovered information contains information about Sunde's criminal proceeding in Federal District Court, including an affidavit which has a bearing on Pacific's abuse of process argument.
19. Numerous pleadings and correspondence regarding Sunde's status with respect to the complaint and his eligibility for compensation have been filed in this proceeding and at the California Supreme Court, and the Commission and other parties have expended time and resources on these issues.
20. The complainants filed an amended request in February 1995 adding Sunde's name to the compensation request, and on June 22, 1995, Westcom filed an amended notice deleting Sunde's name from the request for a finding of eligibility.
21. Pacific filed a motion on July 5, 1995 to strike the amended notice of June 22, 1995.
22. Sunde should be considered the alter ego of Westcom.
23. The information contained in the affidavit supporting the criminal complaint in Federal District Court against Sunde, and his subsequent guilty plea, establishes a willingness on the part of Sunde to engage in protracted litigation before the Commission as a means to obtain private gain through a threat of litigation.
24. Although the complainants contend that they have been authorized by Coachella to represent its interest in this proceeding, no petition to intervene in this proceeding was ever filed by Coachella as required by Rule 53.
25. On May 3, 1994, Execuline and Pac-West filed a motion to compel Westcom to comply with Pub. Util. Code § 1706.
26. Although we have granted the motions to dismiss the complaint and its amendments, it is in the Commission's interest to address the issue of whether Westcom and Sunde must be represented by an attorney in subsequent proceedings before this Commission.
27. Westcom and its agents' conduct of patching into the conversations of unsuspecting third parties, and asking customer specific questions of those third parties, erodes our confidence in the ability of Westcom and Sunde to participate in Commission proceedings.
28. With little cost to the complainants, the complainants' addition and then subsequent deletion of Sunde's name from the complaint have burdened the Commission staff and the defendants with additional work and expense.
29. Westcom's failure to obey a Commission decision was an issue in a complaint case that Westcom filed against a LEC.
30. The Commission has previously imposed restrictions on a complainant so as to prevent abuse of the Commission's process.
31. If a presiding officer decides to require Westcom or Sunde to retain an attorney in order to participate in Commission proceedings, this will shift some of the financial burden of pursuing the proceeding onto Westcom or Sunde.
32. On January 20, 1995 and January 24, 1995, the complainants filed motions for sanctions, and motions that counsel be removed and reported to the State Bar for violation of the California State Bar's Rules of Professional Conduct.
33. Sunde is not a member of the California State Bar and is not bound by such rules.
34. Sunde has used stationery which leaves the impression that he is licensed to practice law.
35. On February 1, 1995, the complainants filed a pleading entitled "Motion To Enforce Signing Of Non-Disclosure And Protective Agreement; Motion To Supplement The Record With New Evidence; Motion For Sanction."
36. Based on the documents attached to the complainants' February 1, 1995 motion, and to Pacific's response, we cannot conclude that Pacific and the complainants had agreed on a mutually acceptable non-disclosure agreement as of January 5, 1995.
37. The complainants have not been entirely forthcoming as to some of the events surrounding the negotiation of the non-disclosure agreement.
38. There are five pending discovery motions in this proceeding.
39. To award the complainants compensation for conduct which results in dismissal of their complaint and rewards them for this kind of behavior is inconsistent with the Legislature's intent that the intervenor compensation program be administered in a manner that encourages effective and efficient participation.
40. No common fund has been established as a result of this complaint proceeding.
41. The Advocates Trust Fund is no longer in existence.
42. The complainants do not qualify as a customer, and did not make a substantial contribution to this decision, as required by the intervenor compensation statutes.
43. Westcom filed its "Emergency Motion To Full Commission To Issue Rulings" on January 20, 2000.
1. For purposes of the three motions to dismiss, Westcom and Sunde should be treated as the named complainants.
2. The complainants' March 9, 1995 motion to amend their January 24, 1995 response to Execuline et al's motion to dismiss by incorporating the affidavit of Mark Edwards is granted.
3. The motions to dismiss of Call America and Execuline et al. are based on the doctrine of unclean hands.
4. In determining whether the doctrine of unclean hands should be applied to bar the complainants' actions, the relative extent of each party's wrong upon the other and upon the public should be taken into account, and an equitable balance should be reached.
5. Conduct may be unclean if it violates conscience or good faith, or when in the eyes of honest and fair-minded persons, the conduct is wrong and should be condemned.
6. The complainants' act of patching into outgoing telephone calls interfered with and prevented the transmission and delivery of the call to the called party in possible violation of Pub. Util. Code § 558.
7. The manner in which the complainants obtained the information from the calling and called parties was reprehensible and amounted to unclean hands, and may be in violation of Pub. Util. Code § 7903.
8. The complainants' conduct may be in violation of Pub. Util. Code § 7903 because Westcom's use of that information is arguably being used for the complainants' own account, profit, or advantage.
9. The private attorney general concept is an equitable theory upon which an award of attorney's fees can be based, and does not pertain to one's conduct as a enforcement officer.
10. The complainants' conduct was reprehensible and amounts to unclean hands because the information obtained from the calling and called parties impinged upon the privacy rights of those customers.
11. 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.
12. In weighing and balancing whether the defendants' motions to dismiss should be granted, we conclude that the complainants' conduct merits dismissal of the complaint.
13. Express Tel's motion to dismiss the complaint should be granted because, 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.
14. The July 31, 1995 "Motion Of Interexchange Carriers To Supplement The Record With Newly Discovered Information, In Support Of Pacific Bell's Motion To Dismiss For Abuse Of The Commission's Processes" should be granted.
15. An amendment submitted after the scheduled hearing date may only be filed and served as permitted or directed by the Commission or the ALJ.
16. If amended pleadings are allowed to automatically supersede a prior pleading, disruptions to the management of a proceeding can result.
17. We should permit the filing of the sixth amended complaint removing Sunde as a complainant.
18. The inclusion and then removal of Sunde as a named complainant, and the changing of Sunde's status for the purpose of seeking relief at the California Supreme Court and for intervenor compensation, are disruptive, interfere with, and abuse the orderly administration of the Commission's processes.
19. Pacific's July 5, 1995 motion to strike Westcom's June 22, 1995 amended notice of intent to claim compensation should be granted.
20. Whether or not the complainants are eligible for compensation is not a ground for dismissal of the complaint.
21. Official notice shall be taken of Sunde's guilty plea to one felony count of mailing a threatening communication with intent to extort money in Federal District Court, Case Number MAG 95-277.
22. Due to our conclusions about the complainants' abuse of process, there is no need to address the issue of the standing of the complainants to pursue this complaint.
23. Pacific's argument that the complaint should be dismissed because there is no economic incentive for IECs to use exchange lines rather than switched access to carry interexchange traffic is more in the nature of a defense to the complaint, rather than a basis as to why the complaint should be dismissed.
24. Based upon the discussion regarding the granting of the IECs' motions to dismiss, and the abuse of process discussion, we conclude that Pacific's June 22, 1995 motion to dismiss the complaint should be granted.
25. Westcom, as a public utility, and Sunde, as an officer of a public utility, are obligated under Pub. Util. Code § 702 to obey and comply with every order, decision, direction, or rule made or prescribed by the Commission.
26. Placing restrictions on the conduct of the complainants is consistent with the doctrine of unclean hands so as to protect the judicial forum's integrity from the improper action of a party.
27. Requiring Westcom or Sunde to retain an attorney in a future proceeding does not trigger due process concerns because they can still participate in the proceeding, and such a requirement will help ensure that the Commission's processes are not subjected to abuse, will shift some of the costs of participation onto the complainants, and will help safeguard the public's right to privacy.
28. In light of the documents attached to the December 7, 1994 amended complaint, and our analyses of the motions to dismiss, we cannot conclude that the allegations contained in the motions to dismiss were false or misleading, nor can we conclude, based on our analyses, that counsel for Call America and Execuline et al. refused to make reasonably diligent efforts to comply with the discovery requests of the complainants.
29. The complainants' January 1995 motions for sanctions, motions that counsel for Call America and Execuline et al. be removed, and the request that counsel for Call America and Execuline et al. be reported to the State Bar, should be denied.
30. The complainants' motion for an order requiring Pacific to execute the January 5, 1995 non-disclosure agreement should be denied.
31. Omission of pertinent facts from pleadings may be viewed as a Rule 1 violation.
32. Code of Civil Procedure § 1985.3 has been interpreted to mean that before confidential third party personal records may be disclosed in the course of an administrative proceeding, the subpoenaing party must take reasonable steps to notify the third party of the pendency and nature of the proceedings, and to afford the third party a fair opportunity to assert one's interest.
33. In light of the case law regarding discovery of records maintained by an entity, and notice to the affected consumer, we cannot conclude that the actions of Pacific and the other defendants regarding the non-disclosure agreement amounted to a conspiracy to obstruct the complainants' discovery efforts, and therefore, the complainants' motion to incorporate this alleged evidence of obstruction into the complainants' January 1995 responses to the IECs' motions to dismiss should be denied.
34. The complainants' February 1, 1995 motion for sanctions against the defendants, the request that the attorneys for the defendants be removed, and the request that the attorneys for the defendants be reported to the State Bar, should be denied.
35. The repetitive use of form pleadings, especially when it alleges a violation of the State Bar's rules regarding conduct, is another example of why the presiding officer should determine whether Westcom or Sunde should be required to retain a licensed attorney in order to participate in a Commission proceeding.
36. The following discovery motions are moot in light of the granting of the motions to dismiss the complaint: (1) the February 28, 1995 motion of Execuline et al. to quash certain portions of the subpoena duces tecum of the complainants; (2) the March 3, 1995 "Motion of Call America Business Communications Corporation To Quash Subpoena Duces Tecum;" (3) Pacific's March 3, 1995 "Motion To Abey [sic] Subpoena Served On Pacific Bell By Complainants;" (4) the complainants' May 1, 1995 "Motion To Compel Production Of Documents And Answers To Interrogatories" and "Motion For Contempt" filed against GTE California Incorporated; and (5) the complainants' June 13, 1995 "Motion To Abey [sic] Second Set Of Data Requests and Request For Production Of Documents By Pacific Bell."
37. Westcom and Sunde are not eligible for compensation in this proceeding, and their request for compensation from a common fund, the Advocates Trust Fund, or from the intervenor compensation program should be denied.
38. Westcom's January 20, 2000 "Emergency Motion To Full Commission To Issue Rulings" is moot in light of the issuance of today's decision.
IT IS ORDERED that:
1. The following motions are granted:
a. The March 9, 1995 motion of Westcom Long Distance, Inc. (Westcom) and J. Michael Sunde (Sunde), collectively the "complainants," to amend its January 24, 1995 response to the motion to dismiss of Execuline of Sacramento, Inc. (Execuline), Express Tel, and Pac-West Telecom, Inc. (Pac-West) to include the Edward's affidavit;
b. Pacific Bell's (Pacific) July 5, 1995 motion to strike Westcom's June 22, 1995 "Amended Notice Of Intent To Claim Compensation;" and
c. The July 31, 1995 "Motion Of Interexchange Carriers To Supplement The Record With Newly Discovered Information, In Support Of Pacific Bell's Motion To Dismiss For Abuse Of The Commission's Processes."
2. The following motions are denied:
a. The complainants' request in their January 20, 1995 and January 24, 1995 responses to the motions to dismiss of the interexchange carriers seeking sanctions and removal of defendants' counsel; and
b. The complainants' February 1, 1995 "Motion To Enforce Signing Of Non-Disclosure And Protective Agreement; Motion To Supplement The Record With New Evidence; Motion For Sanction," and all other relief requested in that pleading.
c. The complainants' February 1, 1993 "Request for Findings of Eligibility for Compensation" and February 16, 1995 "Amended Request For Findings of Eligibility For Compensation."
3. The sixth amended complaint that was submitted for filing on June 23, 1995, which deleted Sunde's name, the president of Westcom, from the complaint, shall be permitted for filing and filed as of that date.
4. The following motions to dismiss the complaint, and all of the amendments and amended complaints, with prejudice, are granted:
a. The January 9, 1995 "Motion Of Call America Business Communications Corporation [Call America] To Dismiss The Complaint And All Amendments Thereto Due To Westcom's Unlawful Invasion Of Privacy And Unlawful Interception Of Wire Communications Of Third Parties;"
b. The January 10, 1995 "Motion To Dismiss" filed by Execuline, Pac-West, and Express Tel, and entities related to these three interexchange carriers (collectively referred to as "Execuline et al."); and
c. The June 2, 1995 motion to dismiss of Pacific.
5. The May 3, 1994 motion of Execuline and Pac-West to compel the complainants' compliance with Pub. Util. Code § 1706 is moot but the presiding officer shall determine in each Commission proceeding in which Westcom or Sunde appear, whether Westcom or Sunde should be required to retain a licensed attorney to represent them before the Commission. The underlying conduct of the complainants warrants the imposition of these requirements.
6. In light of the granting of the motions to dismiss, the following motions are now moot: (1) the February 28, 1995 motion of Execuline et al. "To Quash Certain Portions Of The Subpoenas Duces Tecum" of the complainants; (2) the March 3, 1995 "Motion of Call America Business Communications Corporation To Quash Subpoena Duces Tecum;" (3) Pacific's March 3, 1995 "Motion To Abey [sic] Subpoena Served On Pacific Bell By Complainants;" (4) the complainants May 1, 1995 "Motion To Compel Production Of Documents And Answers To Interrogatories" and "Motion For Contempt" filed against GTE California, Inc.; (5) the complainants' June 13, 1995 "Motion To Abey [sic] Second Set of Data Requests and Requests For Production Of Documents By Pacific Bell;" and (6) Westcom's January 20, 2000 "Emergency Motion To Full Commission To Issue Rulings."
7. The request by Westcom and Sunde for intervenor compensation from a common fund, the Advocates Trust Fund, or from the intervenor compensation program is denied.
8. Case 92-07-045 is closed.
This order is effective today.
Dated July 20, 2006, at San Francisco, California.
MICHAEL R. PEEVEY
President
GEOFFREY F. BROWN
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
Commissioners
