2. Preliminary Proceedings

Beginning with their PHC statements, defendants advanced the argument that only legal issues and not factual disputes were presented by UCAN's complaints. They urged that these legal questions be addressed early,⁴ perhaps in the first phase of a bifurcated proceeding.⁵ The Scoping Memo adopted this recommendation, divided the case into two phases, and scheduled early consideration of defendants' motions to dismiss.⁶

Pursuant to the Scoping Memo, the defendants filed their motions to dismiss on January 27, following by UCAN's opposition on March 8, and the defendants' replies on March 14, 2006. In resolving these motions on April 6, the Presiding Officer determined that UCAN had alleged facts sufficient to state one or more causes of action under subsections (a) and (c) of Section 2883, but that UCAN had failed to state sufficient facts supporting an alleged violation of Section 2883(b) or of Sections 2875 to 2897. The defendants' motions were, accordingly, granted in part and denied in part.⁷ UCAN thereafter filed a First Amended Complaint reasserting its Section 2883(b) claim with additional facts, and the defendants did not again seek dismissal of this cause of action. The parties continued their testimony preparation and discovery in anticipation of the evidentiary hearing scheduled to commence on July 31, 2006.

⁴ AT&T, PHC Statement 2-3 (Dec. 30, 2005) ("[T]he core dispute simply involves a legal interpretation of Section 2883. Moreover, because the requirements of Section 2883 apply to all local exchange carriers in California, SBC [AT&T] is unlikely to agree to an ADR compromise solution . . . .").

⁵ Cox, PHC Statement 4 (Dec. 30, 2005) ("The Commission should adopt a bifurcated schedule that permits Cox to file a motion to dismiss or equivalent pleading.").

⁶ Scoping Memo and Ruling of assigned Commissioner and Administrative Law Judge 5-6 (Jan. 20, 2006).

⁷ ALJ Ruling on Motions to Dismiss (April 6, 2006).