Efforts to Retrieve the Tainted Directories and the Evolution of the Survey Proposal

By mid-August of 2000, it was evident from the weekly status reports filed by Pacific and Cox that the directory retrieval efforts had not been as successful as the two companies had hoped. Even though the retrieval program had been well publicized and Pacific had completed distribution of the new, reprinted directories by August 16, the reports showed that only 28% of the tainted directories had been retrieved.

During an off-the-record meeting with Assigned Commissioner Bilas on August 18, 2000, representatives of Cox and Pacific acknowledged their disappointment with the 28% figure. However, they stated that there was anecdotal evidence to suggest that the percentage of tainted directories that had actually been removed from circulation was significantly higher than 28%. They also sought permission to submit a survey that, they believed, would confirm this anecdotal evidence.

On August 30, 2000, Commissioner Bilas sent a letter to Pacific and Cox stating that he was open to the idea of a survey, but that he could not give his approval without receiving (1) details as to the retrieval program Cox and Pacific had already implemented, (2) a description of the additional efforts Pacific and Cox might undertake to increase the retrieval rate, (3) a description of the proposed survey and the identity of the firm that would conduct it, and (4) the proposed sample size for the survey.

On September 8, 2000, Cox and Pacific filed a formal response to Commissioner Bilas's August 30 letter. ⁶ The September 8 Response stated that Cox and Pacific intended to hire Field Research to conduct the proposed survey, for which the proposed telephone script and overall plan were attached. Pacific and Cox also indicated that at least 900 people would be sampled. (September 8 Response, pp. 8-9.)

As requested, the September 8 Response also included a detailed description of Cox's and Pacific's efforts to retrieve the tainted directories and to distribute corrected ones, broken down separately for residential customers, "general business" users and "large business" users. (Id. at 2-6.) The description indicated that these efforts had been extensive, especially for residential customers.

For residential customers, Pacific's distribution vendor had begun by visiting each home that had received a tainted directory and leaving a copy of a letter about the directory problem, along with a specially-printed envelope into which the customer could insert the tainted directory. The vendor then returned 3-5 days later to retrieve the tainted directories that had been put in the envelopes. 283,900 such visits were made by the vendor, followed by another 283,900 visits to retrieve the pickup bags.⁷

The September 8 Response also evaluated three additional reclamation measures that might be implemented-undertaking door-to-door solicitation, offering a monetary reward for returning directories, and sending a first-class letter with a prepaid return envelope for return of the directory-and concluded that none of these measures should be undertaken. First, Cox and Pacific asserted that the measures were not likely to increase the retrieval rate significantly. In addition, Pacific and Cox argued that each measure was likely to raise one or more special problems, such as intruding unacceptably on customer privacy, introducing problems of equity, or unnecessarily reawakening customer anxiety about the tainted directories. (Id. at 9-14.)

On September 27, 2000, Commissioner Bilas sent a letter to Cox and Pacific making a few suggestions for revising the telephone survey script, and directing that the raw survey results should be made available to the Commission. Otherwise, however, the September 27 letter approved the survey proposal. Commissioner Bilas did not order Pacific and Cox to undertake any additional retrieval efforts, but stated that the Commission might still require additional reclamation efforts after reviewing the survey results. Upon receiving the September 27 letter, Pacific and Cox directed Field Research to proceed with the survey immediately.