9. Comments on Revised Proposed Decision
The revised proposed decision of the ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and Rule 14.2(a) of the Commission's Rules of Practice and Procedure (Sept. 2006). Opening Comments were filed by AT&T, Cox, Margaret Tobias, and UCAN on January 16, 2007. Reply comments were filed by AT&T and Cox on January 22, 2007. These comments were addressed in the proposed decision identified as Item 37 on the Commission's January 25, 2007, agenda.
This revised proposed decision was also mailed to the parties in accordance with Section 311 and Rule 14.2(a). Comments were received from Cox and AT&T on May 29, 2007, and from Margaret Tobias on May 30, 2007. Margaret Tobias filed a Motion for Leave to Late-File her Comments on the revised proposed decision due to unavoidable computer problems experienced by her attorneys on the filing date. No party opposes this motion and we grant it in order to fully consider Tobias' comments.
On May 29, 2007, Cox and AT&T also filed a Joint Motion for Oral Argument before the full Commission concerning the revised proposed decision. The motion was filed pursuant to Rules 11.1(a) and (b) and 13.13(a) of the Commission's Rules of Practice and Procedure (2006 version).33 By joint ruling, the assigned Commissioner for these ex parte matters and the Presiding Officer denied this motion.
While any party may file a motion under Rule 11.1 seeking the Commission to take specific action, the decision whether to hold an oral argument under Rule 13.13(a) is discretionary with the Commission, the assigned Commissioner or Administrative Law Judge. Having allowed ample opportunity for public review and comment on the original, and then the revised proposed decision, we do not believe an oral argument before the full Commission is necessary to our decision making process in this case. Therefore, we concur in the denial of the Cox and AT&T Joint Motion requesting oral argument.
We proceed now to consider the comments. All of the commenting parties argue that the two meetings in question occurred in reliance on the Commission rules governing quasi-legislative proceedings wherein ex parte communications are allowed without restrictions (Section 1701.1(4)(b)), or reporting requirement (Rule 7(d)). They assert that the communications occurred in a rulemaking and not in the adjudications. They assert that the participants agreed not to discuss the complaint proceedings alleging violations of Section 2883, and that the meetings went forward on that basis. (AT&T Comments, p. 1.) The parties also express concern that the revised proposed decision imposes new obligations on parties in rulemaking proceedings to be aware of all substantive issues in other adjudicatory cases that might be affected by communications made in the rulemaking proceeding, leaving parties to guess (at the risk of incurring penalties) which communications are prohibited and which are not (Margaret Tobias Comments, p. 9).
The parties also assert that they did not urge the Commission to take any action in the complaint cases during the two meetings in question; rather they urged the Commission to conduct a separate rulemaking (Cox Comments p. 3). The parties reject the revised proposed decision's treatment of the ex parte meetings "as if" they had occurred in the complaint proceedings, arguing that there was no improper subject matter overlap between the relief sought in the Rulemaking and the issues in the complaint cases (Cox Comments, p. 7).
Our decision is based on the narrow but compelling set of facts presented in these proceedings. Contrary to the commenter's assertions, we are not promulgating new ex parte rules. We are interpreting existing rules. We reject the contention that we are creating a rule that puts parties at peril whenever they wish to have ex parte communications in quasi legislative proceedings where related complaint proceedings are pending. The unique facts of these proceedings are what drive us to our conclusion today that ex parte violations occurred. AT&T and Cox were dissatisfied with the forum in which their compliance with Section 2883 was being reviewed. Within a short period of time and anticipating an evidentiary hearing, they pursued several unsuccessful and alternative pleading approaches to have the forum for compliance review changed from an adjudicatory context (retrospective review) to a rulemaking context (prospective review) although they had shown no interest in rulemaking in the decade since Section 2883's enactment. Because of the pending adjudications, important due process rights of an absent party were jeopardized.34 In view of the chronology set forth in this decision and the issues discussed in the meetings, defendants' argument that the communications were limited to a rulemaking proceeding elevates form over substance and would license the very conduct we seek to proscribe here: communications nominally made in one proceeding but designed to affect substantive outcomes in pending adjudications.
As stated earlier we regard the forum selection dispute as a substantive issue in adjudicatory proceedings pending before this Commission. For that reason, AT&T's and Cox's oral and written communications with decisionmakers on this forum selection issue in a non-public setting constituted ex parte communications (Section 1701.1(c)(4)). Further, we find that these ex parte communications implicated substantive issues in both the rulemaking and the adjudicatory dockets. Standing alone in the rulemaking proceeding, the ex parte communications would have been permissible under Section 1701.4(b), as the commenting parties note. However, these ex parte communications did not stand alone: the dispute over forum selection and the interpretation of Section 2883 overlapped and linked the rulemaking and the complaints. For this reason, the communications also occurred in the adjudicatory dockets, where they were prohibited under Section 1701.2(b). We so find.
33 The May 29 Motion also cites Rule 16.3(a)(3) which governs requests for oral argument by a party who has filed an application for rehearing of a Commission decision where the appeal presents legal issues of exceptional controversy, complexity, or public importance. However, we are not dealing with a decision on rehearing, so the citation is inapposite.
34 AT&T comments that UCAN's due process rights were not affected by defendants' conduct. The defendants' communications risked compromising the Commission's impartiality in its adjudicatory process. See Golden Day Schools, Inc. v. State Dep't of Education, 83 Cal. App. 4th 695 (2d Dist. 2000) (child care contractor with the state had a due process liberty interest entitling it to a hearing on justification for the debarment before an impartial arbiter or tribunal); cf. Shelley v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of racially restrictive covenant constitutes Equal Protection violation).
