ALJ/JET/hl2 Mailed 7/20/2007
Decision 07-07-020 July 12, 2007
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Utility Consumers' Action Network, Complainant, vs. SBC Communications, Inc., dba SBC Pacific Bell Telephone Company (U 1001 C), and related entities (collectively "SBC"), Defendants. |
Case 05-11-011 (Filed November 14, 2005) |
Utility Consumers' Action Network, Complainant, vs. Cox California Telecom II, LLC, doing business as Cox Communications (U 5584 C), and related entities (collectively "Cox"), Defendants. |
Case 05-11-012 (Filed November 14, 2005) |
REVISED PROPOSED INTERIM DECISION ON
ALLEGED EX PARTE VIOLATIONS
TABLE OF CONTENTS
Title Page
REVISED PROPOSED INTERIM DECISION ON ALLEGED
EX PARTE VIOLATIONS 22
3. Defendants' Efforts to Secure Another Forum 55
5.1. Elements of an Impermissible Ex Parte Communication 1111
5.3. Local Competition Docket v. Adjudicatory Proceeding 1818
6. Restraints on Communicating with Commission 1919
9. Comments on Revised Proposed Decision 2727
REVISED PROPOSED INTERIM DECISION ON
ALLEGED EX PARTE VIOLATIONS
The assigned Commissioner and the assigned Administrative Law Judge, (ALJ) who is the Presiding Officer issued a joint ruling requiring the defendants in these coordinated adjudicatory cases, as well as certain of their officers, attorneys, and employees, to file declarations concerning alleged impermissible ex parte communications with personal advisors of certain Commissioners. Additionally, the assigned Commissioner and Presiding Officer conducted an evidentiary hearing to gather more information about the alleged violations. Testimony was not elicited from the Commission's personal advisors because (1) the assigned Commissioner and Presiding Officer relied on the parties and their representatives to provide truthful declarations and testimony; (2) the basic, material facts were not at issue; and (3) without an indispensable need for their testimony to resolve disputed material facts, the testimony of personal advisors, whose work often occurs under the protection of the deliberative process privilege, was not necessary.
These proceedings are complaints; and the merits of the complaints will be resolved with a forthcoming Presiding Officer's Decision (POD), unless a party appeals or a Commissioner desires review.1 Because of the importance of the ex parte issue raised in these proceedings, this Interim Proposed Decision has been submitted to the Commission for its consideration. We agree with the Presiding Officer and determine that, in violation of the Public Utilities Code and our Rules of Practice and Procedure,2 impermissible ex parte violations have occurred in these proceedings and the Commission should impose sanctions including a fine of $40,000 against each defendant.
1. Background
On November 14, 2005, the Utility Consumers' Action Network (UCAN) filed separate complaints (C.05-11-011 & C.05-11-012) against SBC Communications, Inc. dba SBC Pacific Bell Telephone Company (now known as AT&T California; hereinafter "AT&T") and Cox California Telecom, LLC dba Cox Communications (Cox) (defendants). UCAN's complaints allege violations of Public Utilities Code Section 28833 concerning defendants' obligations to provide 911 "warm line" access. While the meaning and scope of Section 2883 are at the heart of these proceeding, Section 2883 generally requires that 911 emergency services be available even in those residential units where an active account has been voluntarily or involuntarily terminated (for example, where the occupancy of a residential unit is changing because of a sale or lease expiration). The complaints seek reimbursements, penalties, punitive damages, and other remedies.
While not formally consolidated because of different factual settings, these proceedings have been coordinated since the first prehearing conference (PHC) on January 4, 2006. Both proceedings were preliminarily categorized as adjudicatory. Pursuant to Section 1701.2(b) and Commission Rules of Practice and Procedure 7(b), the Scoping Memo issued on January 20, 2006, confirmed the preliminary categorization and indicated that "ex parte communications with the assigned Commissioner, other Commissioners, their advisors and the ALJ are prohibited."
Many people associated with UCAN, AT&T, and Cox had appeared in this proceeding or were named on the service list. For purposes of this decision, however, the following persons are discussed: Fassil Fenikile, Director of Regulatory for AT&T; Stephanie E. Holland, in-house counsel for AT&T; Margaret L. Tobias, retained counsel for Cox; and Doug Garrett, Vice President, Western Region, Cox.
1 The parties in Case (C.) 05-11-012 have agreed to the withdrawal of the complaint and, after this Proposed Interim Decision is finalized by the Commission, the complaint may be withdrawn.
2 Our Rules of Practice and Procedure were amended on September 13, 2006, to reorganize and renumber the rules. Very few substantive changes were made. The events considered in this decision occurred before that date; hence, the rules in effect before September 13, 2006, apply. Unless otherwise noted, Rules references in this decision are to the pre-September 13, 2006, version.
3 All subsequent section references are to the Public Utilities Code unless otherwise specified.
