ALJ/JJJ/k47 DRAFT Item 2

10/19/2000

Decision DRAFT DECISION OF ALJ ECONOME (Mailed 9/15/2000)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Cox California Telcom, L.L.C. dba Cox Communications (U-5684-C), Complainant, vs. Crow Winthrop Development Limited Partnership, Defendant.

(EDM) Case 00-05-022 (Filed May 10, 2000)

OPINION DISMISSING COMPLAINT

TABLE OF CONTENTS

Title Page

OPINION DISMISSING COMPLAINT 1

I. Summary 2

II. Background 2

A. Public Utilities Code § 625 2

B. Procedural Background 4

C. Other Administrative and Court Actions 7

1. Jamboree Superior Court Action 7

a. Relationship Between Crow Development and Jamboree 7

b. Allegations in Jamboree Superior Court Action 8

2. Cox Superior Court Action 9

3. C.00-05-023 (Related Commission Complaint) 10

III. Discussion 11

A. Overview 11

B. Necessity is a vital determination in a § 625 action. 12

C. Whether or not Cox has existing access rights to the easements in question is critical to determining necessity. 13

D. Cox's entitlement to access the easements is currently being

litigated in the Superior Court 13

E. Logic and efficiency support a dismissal of this case without

prejudice. 15

F. Dismissal of this case without prejudice is consistent with a proper

understanding of the primary jurisdiction doctrine. 18

IV. Additional Guidance for Future § 625 Complaints 20

V. Comments on Draft Decision 22

Findings of Fact 22

Conclusions of Law 24

ORDER 25

OPINION

I. Summary

Cox California Telcom, L.L.C. dba Cox Communications (Cox) brings this complaint against Crow Winthrop Development Limited Partnership (Crow Development) pursuant to Pub. Util. Code § 625. Cox requests the Commission find in the public interest the proposed condemnation of certain easements Cox believes are necessary for it to provide competitive telephone utility service. We determine that the complaint is premature and should be dismissed without prejudice.