ALJ/XJV/lil Date of Issuance 9/7/2007
Decision 07-09-015 September 6, 2007
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Investigation on the Commission's own motion into the operations, practices, and conduct of Pacific Bell Wireless LLC dba Cingular Wireless, U-3060, U-4135 and U-4314, and related entities (collectively "Cingular") to determine whether Cingular has violated the laws, rules and regulations of this State in its sale of cellular telephone equipment and service and its collection of an Early Termination Fee and other penalties from consumers. |
Investigation 02-06-003 (Filed June 6, 2002) |
OPINION GRANTING INTERVENOR COMPENSATION TO UCAN
FOR SUBSTANTIAL CONTRIBUTIONS TO JUDICIAL REVIEW OF
DECISION 04-09-062 AND TO DECISION 07-03-048
This decision awards Utility Consumers' Action Network (UCAN) $171,996.30 in compensation for its substantial contributions (1) in the course of judicial review of Decision (D.) 04-09-062 and (2) in challenging the initial Restitution Plan and subsequently working toward a post-appeal, all-party settlement, both of which underlie D.07-03-048. This award represents a decrease of $3,200 from the amount requested. This proceeding is closed.
1. Background
The Commission opened this investigation in 2002. In D.04-09-062, which issued following evidentiary hearing, the Commission found that from 2000 to 2002, Pacific Bell Wireless LLC, dba Cingular Wireless (Cingular) advertised and marketed its services heavily without disclosing its network coverage problems to customers.1 The Commission concluded that Cingular's advertising and coverage maps misled consumers into signing up for wireless service in areas where the cell phone did not work, and then imposed Early Termination Fees (ETFs) when the customer tried to cancel, allowing for no grace period to return the phone. D.04-09-062 found that Cingular's official no return/no refund ETF policy constituted an unfair business practice that failed to provide adequate, just and reasonable service to customers, in violation of California Public Utilities Code Sections 451, 702, 2896 and D.95-04-028. D.04-09-062 imposed a $12.14 million fine on Cingular and ordered Cingular to refund all ETFs collected from January 2000 to April 2002. D.04-09-062 did not specify how the refund would be implemented, but instead ordered Cingular to "file a refund plan accomplishing the customer reparations," and delegated to our Telecommunications Division (TD) the responsibility to "monitor implementation of the plan." (D.04-09-062, p. 67.) Cingular submitted a Restitution Plan to TD about 60 days after
D.04-09-062 issued. In January 2005, UCAN and the Commission's Consumer Protection and Safety Division (CPSD) jointly filed protests to Cingular's proposed plan. Cingular had already filed an application for rehearing of
D.04-09-062 and the proposed Restitution Plan was neither refined nor implemented pending that review or the judicial review which followed.
The Commission denied Cingular's application for rehearing by
D.04-12-058, whereupon Cingular commenced court challenges of that decision and D.04-09-062. On June 20, 2006, the California Court of Appeal, Fourth Appellate District, issued a written opinion denying all of Cingular's appeals. (Pacific Bell Wireless, LLC v. Public Utilities Commission (2006) 140 Cal.App.4th 718.) On October 11, 2006, the California Supreme Court summarily denied Cingular's petition for review. (Cal Sup. Ct. Case No. S145516, Petition for Review denied October 11, 2006.) Thereafter on March 9, 2007, after twice seeking and receiving extensions of the filing deadline, Cingular filed a petition for a writ of certiorari with the United States Supreme Court.
At various times during the pendency of judicial review, Cingular and one or both of the other parties engaged in settlement negotiations. By motion filed March 14, 2007, the parties sought adoption of an all-party settlement. D.07-03-048, the most recent decision in this investigation, adopted the settlement. The settlement sets out the details of a refund plan for Cingular's customers, requires Cingular to pay the full penalty previously ordered, and resolves all pending litigation.
UCAN timely filed a request for intervenor compensation after D.04-09-062 issued. By D.05-02-005, to the Commission awarded UCAN $367,401.25 for substantial contribution to D.04-09-062. The present request seeks compensation for work associated with opposition to Cingular's 2004 Restitution Plan, with judicial review of D.04-09-062 (together with D.04-12-058, which denied rehearing) and with the settlement adopted by D.07-03-048. Cingular's response, filed May 24, 2007, opposes the request. With the leave of the Administrative Law Judge (ALJ), UCAN filed a reply on June 15, 2007, and on July 10, 2007, filed an amendment to the reply, which consists of a supplemental declaration of its outside counsel, Alan Mansfield of Rosner & Mansfield.
1 Cingular is now known as AT&T Mobility LLC.
