3. Defendants' Efforts to Secure another Forum

Beginning with their early pleadings, defendants urged that another venue, other than an adjudicatory action, would be more appropriate for the legal and policy issues they believed to be raised by UCAN's complaints.⁸ Cox, in particular, advanced this argument in its January 27 motion to dismiss as one of the principal reasons UCAN's complaints should not go forward.⁹ In responding to this argument, the Presiding Officer ruled, "Cox's argument is essentially a challenge to how this proceeding is categorized. An appeal for recategorization is authorized by Rule 6.4; however, Cox did not avail itself of that remedy; and it is now deemed to be waived. Additionally, adjudicatory proceedings before the Commission often produce outcomes that modify industry practices."¹⁰

On May 18, 2006, AT&T and Cox, in a pleading signed by Holland and Tobias, attempted to file a motion in the complaint proceedings. The motion was captioned "Joint Motion . . . to the Full Commission to Dismiss the Coordinated Complaint Proceeding and Establish a Single Rulemaking Proceeding" (May Motion).¹¹ This tendered pleading was not filed by the Docket Office because, as Tobias related, the pleading "sought the type of relief that wasn't allowed in the type of proceeding it was filed in. And that it requested two types of relief."¹²

The May Motion, although not filed, asked the Commission to commence a rulemaking "to promulgate a comprehensive, reasoned set of rules delineating the specific obligations of local telephone companies under Section 2883 to provide warm dial tone." More importantly for this decision, the motion also asked that UCAN's complaints be dismissed, which appears to be the second form of requested relief used by the Docket Office as an additional reason for rejecting the pleading.¹³

The May Motion set forth many of the same arguments relied upon by AT&T and Cox in their earlier pleadings, e.g., the interpretation of Section 2883 is a matter of first impression, other affected carriers should be heard, and the narrow scope of the complaint proceeding would preclude a consideration of broad policy issues. The May Motion, which was addressed to the "full Commission," and presumably was intended to be acted upon by the full Commission and not the Presiding Officer, did not mention that motions to dismiss had been filed and resolved by the Presiding Officer, that the Cox motion to dismiss had specifically argued that UCAN's complaints should be dismissed in lieu of a rulemaking, or that the Presiding Officer had specifically rejected those arguments.¹⁴ This was a significant omission, particularly in light of the timing of events and interrelatedness of issues, because it failed to provide a complete picture to the full Commission of the actual state of the controversy.

On June 2, 2006, defendants filed a joint motion (Rules Motion) in the Commission's Local Competition Docket, R.95-04-043/I.95-04-044, requesting that the Commission promulgate rules in that docket regarding carriers' "warm line" obligations under Section 2883.¹⁵ Simultaneously, defendants filed a joint motion (Stay Motion) in these two adjudicatory proceedings asking for a stay pending a determination "as to whether the Commission will address the requirements of Section 2883 in a generic, industry-wide proceeding" in the Local Competition Docket.¹⁶ The Rules Motion and the Stay Motion were eventually denied in separate rulings in the respective proceedings.¹⁷

In their Rules Motion, the defendants specifically referred to the two pending adjudicatory proceedings and repeated arguments AT&T had made in its answer to UCAN's complaint, Cox had made in its motion to dismiss, and they both had made in their attempted May Motion. Among other things, they argued:

(a) "[t]he foregoing determinations should be made generically in an industry-wide forum and not in the context of individual bilateral complaint proceedings";

(b) "[a] complaint proceeding is unsuitable for considering such broad, industry-wide policy mandates";

(c) "the topics raised in UCAN's two Section 2883 complaints currently pending before the Commission would be more appropriately aired in technical workshops where various networks, capabilities, and carrier practices can be discussed . . . . The proper forum is the Local Competition docket"; and

(d) [u]nless the Commission addresses Section 2883 generically in the Local Competition docket, rules will be fashioned in an ad hoc manner on a carrier-by-carrier basis in individual complaint proceedings, such as the two complaint cases currently pending before the Commission . . . ."¹⁸

It is unclear why the defendants (along with other telecommunications carriers) did not petition the Commission for a new rulemaking proceeding addressing "warm line" access, a more appropriate procedure that is available under Public Utilities Code Section 1708.5 and Rule 14.7.

Up to this point, defendants had properly utilized the procedures available to them under the Commission's pleading rules. Even the omissions in the May Motion would have become apparent to the Commission once the other parties filed their responsive pleadings. Beyond this point, however, the defendants embarked on impermissible conduct which violates the Public Utilities Code and the Commission's ex parte rules.

⁸ See AT&T California, Answer to UCAN Complaint 8 (Dec. 22, 2005) (Sixth Affirmative Defense: "A bilateral Complaint proceeding is not the proper venue for the Commission to promulgate its interpretation of Section 2883, which will have general applicability to the entire LEC [local exchange carrier] community in California."); Cox, Motion to Dismiss Complaint 1 (Jan. 27, 2006) ("[B]ecause resolution of the issues raised by UCAN would have an impact industry-wide, applicable law, fairness and due process all require the Commission to open a rulemaking proceeding if it were to address the issues raised in the Complaint.") (emphasis in original); Id. at 6 ("UCAN is abusing the Commission's process by filing a complaint against Cox instead of filing a petition for rulemaking"); Cox California Telecom, Reply to UCAN's Opposition to Motion to Dismiss Complaint 1 (Mar. 14, 2006) ("[I]t would be more appropriate for the Commission to address such issues in industry-wide workshops instead of this complaint proceeding . . . .").

⁹ Cox, Motion to Dismiss at 6-9 (e.g., "the Commission must dismiss the Complaint on the grounds that an adjudicatory proceeding is not the proper venue for consideration and adoption of policies and rules that affect an entire class of carriers . . . ."). AT&T did not make this argument in its motion to dismiss.

¹⁰ ALJ Ruling on Motion to Dismiss at 5 (April 6, 2006).

¹¹ Ex. No. 6; 1 RT 3:26-5:14 (Tobias). References to RT are to the Reporter's Transcript of an evidentiary hearing conducted on July 7, 2006; see p. 10).

¹² 1 RT 6:20-22 (Tobias).

¹³ Our rules require a "separate document" for a "separate action." See Rule 2.1(b): "Separate documents must be used to address unrelated subjects or to ask the Commission or the administrative law judge to take essentially different types of action..."

¹⁴ ALJ Ruling on Motion to Dismiss at 5. The May Motion does cite to UCAN's pleadings in response to the earlier motion to dismiss.

¹⁵ AT&T California & Cox California Telecom, Joint Motion for the Commission to Establish Industry-Wide Local Competition Rules Regarding Carriers' Warm Line Obligations (June 2, 2006) (Rules Motion).

¹⁶ AT&T California & Cox California Telecom, Joint Motion to Stay the Coordinated Complaint Proceedings 3 (June 2, 2006) (Stay Motion).

¹⁷ ALJ Ruling, R.95-04-043/I.95-04-044 (June 29, 2006); ALJ Ruling, C.05-11-011/ C.05-11-012 (June 28, 2006).

¹⁸ Rules Motion at 7, 9-10. See also Finding of Fact 24.