ALJ/MCK/hkr * Mailed 11/30/2001
Decision 01-11-062 November 29, 2001
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking on the Commission's own Motion into Competition for Local Exchange Service. |
Rulemaking 95-04-043 (Filed April 26, 1995) |
|
Order Instituting Investigation on the Commission's own Motion into Competition for Local Exchange Service. |
Investigation 95-04-044 (Filed April 26, 1995) |
James B. Young, Gregory L. Castle, Attorneys at Law, for Pacific Bell Telephone Company, and Lee Burdick, Attorney at Law, for Cox California Telcom., L.L.C., intervenors.
INTERIM DECISION RELIEVING PACIFIC BELL
TELEPHONE COMPANY AND COX CALIFORNIA TELCOM., L.L.C.
OF OBLIGATION TO UNDERTAKE ADDITIONAL MEASURES
TO RECLAIM TAINTED SAN DIEGO DIRECTORIES
TABLE OF CONTENTS
Title Page
INTERIM DECISION RELIEVING PACIFIC BELL TELEPHONE COMPANY
AND COX CALIFORNIA TELCOM., L.L.C. OF OBLIGATION TO
UNDERTAKE ADDITIONAL MEASURES TO RECLAIM TAINTED
SAN DIEGO DIRECTORIES 2
Introduction and Summary 2
Background 3
The June 12 Hearing on the Reclamation and Reprinting Plan 6
Cox's Offer to Customers Whose Listings Were Erroneously Published 7
Efforts to Retrieve the Tainted Directories and the Evolution
of the Survey Proposal 8
The Results of the Field Research Survey 11
Discussion 13
Little Purpose Would Be Served by Imposing Penalties
on Cox and Pacific at This Time 16
Comments on Proposed Decision 22
Findings of Fact 22
Conclusions of Law 28
INTERIM ORDER 29
INTERIM DECISION RELIEVING PACIFIC BELL
TELEPHONE COMPANY AND COX CALIFORNIA TELCOM., L.L.C.
OF OBLIGATION TO UNDERTAKE ADDITIONAL MEASURES
TO RECLAIM TAINTED SAN DIEGO DIRECTORIES
Introduction and Summary
This decision brings to a close the special phase of this proceeding that began on June 2, 2000, when Commission President Loretta Lynch issued a President's Ruling Granting Motion for a Temporary Restraining Order (TRO Ruling) in this docket. The TRO had been sought by Cox California Telcom., L.L.C. (Cox), which alleged that Pacific Bell Telephone Company (Pacific) had wrongfully resumed the distribution of "tainted" white pages directories for South and East San Diego County. The directories were considered tainted because, as a result of processing errors, they contained the numbers of Cox
customers who had requested unlisted or non-published numbers. The TRO Ruling directed Pacific to "cease all deliveries of these directories until further notice by [the Commission,] or until a ruling is issued on Cox's motion for a preliminary injunction, whichever occurs first." (Mimeo., p. 1.)
Cox and Pacific reached a settlement of their dispute on June 8, 2000, so the preliminary injunction hearing was never held. Instead, on June 12, 2000, the Commission heard testimony on the Cox-Pacific plan to reclaim the tainted directories, and then print and distribute new, corrected directories.
For the reasons set forth below, we conclude that the reclamation effort carried out by Pacific and Cox during the Summer of 2000 has apparently achieved as good a result as could reasonably be expected. Further, we agree that based on a survey conducted for Cox and Pacific by Field Research Corporation (Field Research), there is good cause to believe that the number of tainted directories removed from circulation is in fact much higher than the results of the formal retrieval effort would suggest. Under these circumstances, we agree with Pacific and Cox that little would be gained by ordering them to undertake further retrieval efforts at this time.
In the Proposed Decision (PD) that was mailed to the parties on August 21, 2001, the assigned Administrative Law Judge (ALJ) concluded that there was good cause to believe that during the period before issuance of the TRO Ruling, both Pacific and Cox had failed to meet their respective duties under the Public Utilities Code and relevant Commission decisions, and that a new phase of this proceeding should therefore be opened to consider what penalties, if any, should be imposed on the two carriers.
On September 10, 2001, both Cox and Pacific submitted comments on the PD. Both carriers argue that penalties are inappropriate here, because (1) they have already spent millions of dollars carrying out the reclamation program agreed to in the settlement of June 8, 2000, (2) both have incurred significant additional expenses in defending and settling civil litigation brought on account of the distribution of tainted directories, and (3) opening a penalty phase at this time-nearly 18 months after distribution of the tainted directories-would serve only to reawaken public anxiety about the issue. Although we agree with the ALJ that the conduct of Cox and Pacific during the period before issuance of the TRO Ruling fell short of what it should have been, we have been persuaded by the comments of Cox and Pacific that little purpose would be served in opening a penalty phase at this time. Accordingly, we will not pursue the matter further.
