Background
Binstok operates a moving company that does business under the names of "A Admiral or J B Moving" in Los Angeles County, California. He lists his home mailing address as 834-½ North Formosa Avenue, Los Angeles, California. Binstok is accused by the Commission's Consumer Protection and Safety Division (CPSD) of using his two telephone numbers to engage in the business of transporting used household goods without holding a valid permit from the Commission authorizing such operations. The CPSD maintains that the character of those violations is such that they pose significant danger to the safety and welfare of the people of California. The CPSD asserts that the violations uncovered are punishable as misdemeanors under provisions of the Public Utilities (Pub. Util.) Code and the Business and Professions Code.1
Pursuant to the September 18, 2007 order of Superior Court Judge Maral Injejikian, AT&T disconnected a (323) area code telephone number and Verizon disconnected a toll free telephone number used by A Admiral or J B Moving. The court, acting on an affidavit prepared by the CPSD, found probable cause to believe that A Admiral or J B Moving's telephone lines were being used as instrumentalities to violate the law, and that this presented a significant danger to the public health, safety, or welfare. In this complaint, Binstok seeks reconnection of the telephone lines pursuant to Pub. Util. Code § 5322 and Rule 31 of both AT&T California's and Verizon's tariffs. The scope of this proceeding is set forth in Pub. Util. Code § 5322 and Tariff Rule 31.
Section 5322 requires disconnecting service to an existing customer upon receipt of a writing from any authorized official of the Commission,2 signed by a magistrate, finding that there is probable cause to believe that the customer:
is advertising or holding out to the public to perform, or is performing, household goods carrier services without having in force a permit issued by the Commission authorizing those services, or that the telephone service otherwise is being used or is to be used as an instrumentality, directly or indirectly, to violate or to assist in violation of the laws requiring a household goods carrier permit.
Section 5322 specifies that a magistrate must find that, absent immediate and summary action, a danger to public welfare or safety will result.
Rule 31, titled "Legal Requirements for Refusal or Discontinuance of Service," requires disconnecting service to a customer upon written demand of a law enforcement agency, signed by a magistrate, asserting that there is probable cause to believe that the telephone facilities "have been or are to be used in the commission or facilitation of illegal acts." The character of such acts must pose significant danger to public health, safety, or welfare.
Under both Section 5322 and Tariff Rule 31, a disconnected subscriber may file a complaint with the Commission seeking restoration of service. The Commission is required to schedule a hearing on the complaint within 20 days3 of filing, and to serve notice on the concerned law enforcement agency. At hearing, the law enforcement agency has the burden of proving that the disconnection of service was based on probable cause, and that service should not be restored.
Tariff Rule 31, as amended, was approved by this Commission in Decision (D.) 91188, dated January 8, 1980. The California Supreme Court dismissed constitutional objections to the rule and upheld its validity in Goldin v. Public Utilities Commission, 23 Cal.3d 638 (1979).
A hearing in this case was initially scheduled in the Commission's courtroom in Los Angeles on October 12, 2007, within 20 days of filing of the complaint. At the request of the Complainant,4 the hearing was rescheduled until October 18, 2007. At the conclusion of the hearing, Complainant and CPSD, through closing statements, gave a summation of their respective views of the evidence presented. The case was deemed submitted for Commission consideration on October 25, 2007.5
1 Specifically, Pub. Util. Code §§ 5133, 5314.5, 5139, 5161, Commission General Order (GO) 100-M, GO 136-C, Item 88 of the Commission's MAX 4 tariff applicable to household goods carriers, and Business and Profession Code § 17500.
2 After it is shown that other available enforcement remedies of the commission have failed to terminate unlawful activities detrimental to the public welfare and safety.
3 Section 5322 requires that the hearing be held within 21 calendar days of the filing and assignment of a docket number to the complaint.
4 On October 4, 2007, Complainant's attorney submitted a request that the hearing be rescheduled and the 20-day hearing requirement be waived.
5 This case was submitted upon receipt of the corrected transcript and following the in camera review of the original copy of the customer complaint that was photocopied and identified and received into evidence as Exhibit 3.
