II. Background of Complaint
On July 26, 2001, CISPA filed this complaint alleging unlawful discrimination by the Defendants in the provision of Digital Subscriber Line (DSL) Transport services. CISPA alleges anticompetitive marketing and sales practices, preferential treatment in providing DSL to ISP's affiliated with SBC and ASI, improper use of non-public customer information, and service quality concerns such as service interruptions and disconnections. Among the more serious allegations, CISPA charges that SBC/ASI: 1) engaged in "clenching" of customers by unreasonably disconnecting the DSL Transport facilities of end-use customers who desired to change to independent ISPs (i.e., ISPs not-affiliated with SBC/ASI); 2) failed to resolve billing and service disputes with ISPs involving DSL Transport in a timely manner; 3) unreasonably required ISPs to migrate to a new DSL Transport architecture; 4) discriminated against independent ISPs by provisioning DSL Transport services faster to ISPs affiliated with SBC/ASI; and 5) improperly allowed the sales representatives of affiliated ISPs to have access to orders for DSL Transport placed by independent ISPs.
On October 22, 2001, SBC/ASI filed a motion to dismiss the complaint, alleging that the Commission does not have jurisdiction over the DSL Transport services at the heart of the complaint because those services are interstate services within the jurisdiction of the Federal Communications Commission (FCC). In addition, Defendants maintained the complaint should be dismissed as moot given ASI's filing of an interstate tariff with the FCC for DSL Transport service in California. SBC/ASI's motion was denied by the Assigned Commissioner and Administrative Law Judge (ALJ).2 In their ruling, the Assigned Commissioner and ALJ found that DSL Transport can involve certain intrastate applications and the Commission has concurrent jurisdiction with the FCC over DSL Transport service. The ruling also denied SBC/ASI's preemption claims, finding instead that there was no clear and manifest congressional intent to preempt all state authority in this area, particularly with regard to safeguarding the rights of consumers. Specifically, the ruling found that Section 253(b) of the Telecommunications Act of 1996 (the Act) does not affect the ability of the state to impose requirements to safeguard the rights of consumers, and Section 414 of the Act is a savings clause that allows states to enforce their own laws as to activities involving interstate communications.3 The ruling concluded that the Commission could consider CISPA's complaint alleging violations of California public utility law and Commission orders in order to examine claims of fraudulent or misleading conduct by SBC/ASI and poor DSL Transport service quality. The ruling also clarified that the scope of the complaint "should not include the reasonableness of DSL rates, operating speeds and the like set forth in the federal tariff . . . ."4 Today's decision affirms this ruling on the motion to dismiss.5
Following this ruling, a scoping memo for the case was issued on May 10, 2002, and complainant's testimony was served on June 14, 2002 in preparation for hearings scheduled for September 2002.
On August 12, 2002, CISPA and SBC/ASI jointly filed a motion to withdraw the complaint and dismiss the proceeding with prejudice because they had reached a settlement (Settlement Agreement) resolving their disputes. A copy of the signed Settlement Agreement was filed as an attachment to the motion.
Shortly thereafter, Brand X Internet LLC (Brand X), The Utility Reform Network (TURN), and the Utility Consumers' Action Network (UCAN) filed motions to intervene as parties in this proceeding. Brand X is a local Internet Service Provider (ISP) in Southern California that offers Internet connections to residential customers, businesses, and non-profit organizations. TURN/UCAN's joint motion to intervene stated their intent to represent consumer and small business interests and to ensure competitive choices in Internet service in California.
The Assigned Commissioner and ALJ granted these motions to intervene on a limited basis and for the sole purpose of commenting on the Settlement Agreement.6 In the same ruling, the Assigned Commissioner and ALJ denied CISPA and SBC/ASI's joint motion to withdraw the complaint and ruled that the Commission would review the Settlement Agreement under Rule 51.1(e) of the Commission's Rules of Practice and Procedure (Rules) because the commenters had raised several issues relating to the public interest that the Commission should consider. The ruling ordered CISPA, SBC and ASI (collectively "the Settling Parties") to hold an additional settlement conference to address the concerns raised by TURN/UCAN and Brand X. The ruling directed the Settling Parties to file a report on the settlement conference, and any modifications to the settlement arising from that settlement conference.
In January 2003, Raw Bandwidth Communications (Raw Bandwidth), a customer of SBC/ASI's DSL transport services, petitioned for and was granted intervention as a party to the proceeding for the limited purpose of commenting on the Settlement Agreement.
Following the additional settlement conference ordered by the Assigned Commissioner and ALJ, the Settling Parties filed a revised settlement agreement on February 10, 2003.7 Brand X, Raw Bandwidth, and TURN/UCAN filed comments on the revised settlement on February 20, 2003. SBC/ASI responded to these comments on March 10, 2003.
2 See Assigned Commissioner's and ALJ's Ruling Denying Defendants' Motion to Dismiss, March 28, 2002. 3 Id., p. 8. See also 47 U.S.C. 253(b) and 47 U.S.C. 414. 4 Id., p. 11. 5 The ruling is attached to this order as Appendix B. 6 See Assigned Commissioner's and ALJ's Ruling Granting Intervention Requests and Denying Motion to Withdraw Complaint, December 17, 2002 (December 2002 Ruling). 7 The Settling Parties initially filed their settlement report and revised settlement on February 7, 2003. Other parties immediately objected that the report contained confidential statements made by the parties during the settlement conference. On February 10, the Settling Parties moved to withdraw the February 7 filing and substitute it with a revised Settlement Report which removed the controversial language. The motion to withdraw the February 7 filing and replace it with the February 10 revised settlement report was granted by the ALJ via electronic mail on February 13, 2003.
