VI. Categorization and Assignment of Proceeding
This is an adjudicatory proceeding. Loretta M. Lynch is the Assigned Commissioner and ALJ Dorothy Duda is the presiding officer.
1. On July 26, 2001, CISPA filed a complaint alleging unlawful discrimination by the Defendants in the provision of DSL Transport services.
2. On March 28, 2002, the Assigned Commissioner and ALJ issued a ruling finding that DSL Transport can involve intrastate applications and that the Commission has concurrent jurisdiction with the FCC over this service.
3. The Settling Parties filed a Revised Settlement on February 10, 2003.
4. Rule 51.1(e) requires that a settlement be reasonable in light of the whole record, consistent with law, and in the public interest.
5. The Revised Settlement contains provisions which:
a. Improve customer migration intervals by the end of 2003
b. Improve ordering interfaces for ISPs
c. Require the consent of ISPs prior to network architecture changes
d. Enforce standards for marketing scripts
e. Protect end-user information through system security enhancements
f. Create an ombudsperson to resolve sales practice and billing disputes with ISPs
g. Provide for third party review of SBC/ASI processes and procedures associated with access and use of ISP customer information
h. Grandfather certain service options
i. Create a marketing fund for the benefit of CISPA ISP members
j. Address price and terms for modem kits
6. The Release of Claims language in the Revised Settlement applies only to the signatories of the Settlement.
1. Section 253(b) of 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.
2. The Revised Settlement is reasonable in light of the whole record because it addresses several of the allegations contained in the initial complaint and provides remedies related to the alleged anticompetitive and discriminatory practices of SBC/ASI.
3. The Revised Settlement is consistent with law, as long as it is modified as shown in Appendix A to this order, because it does not unreasonably restrict CISPA's involvement in other Commission proceedings.
4. The Revised Settlement does not restrict the ability of third parties that are not signatories to the settlement, including CISPA members, from pursuing their own independent claims.
5. It is inappropriate for SBC/ASI to insert language regarding packetized voice and VoDSL issues into the Revised Settlement without the ability of the Commission to examine and understand the ramifications of these technical issues.
6. It is not in the public interest for the Revised Settlement to preclude CISPA's involvement in complaint proceedings or lawsuits against Defendants with regard to activities that may have been described in the scoping memo of this proceeding, but occur in the future.
7. It is reasonable to limit the release of future claims by CISPA and Defendants to the facts described in the scoping memo that are alleged to have occurred between the date when ASI received operating authority from the Commission in D.00-05-021, or May 4, 2000, and the date of the Initial Settlement, or August 12, 2002.
8. The Revised Settlement is in the public interest, if it is modified as shown in Appendix A to 1) remove language regarding packetized voice, 2) specify an explicit time frame regarding the release of claims, and 3) incorporate the revisions proposed by SBC/ASI on March 10, 2003.
9. The Revised Settlement, if modified as set forth in Appendix A, is in the public interest because it resolves the majority of the issues raised in the underlying complaint and improves upon various aspects of the provisioning of DSL Transport service to ISPs, without the need for extensive litigation.
10. It is not reasonable to require the complainant to litigate the entire case to determine whether the Revised Settlement is in the public interest.
11. There are no material facts requiring hearings in this matter.
IT IS ORDERED that:
1. The Revised Settlement, filed on February 10, 2003 by the California Internet Service Provider Association, Pacific Bell Telephone Company, and SBC Advanced Solutions Inc. (the "Settling Parties") is approved, and Case 01-07-027 is dismissed with prejudice, if the Revised Settlement is modified as shown in Appendix A of this order.
2. The March 28, 2002 Ruling Denying Defendants' Motion to Dismiss is affirmed.
3. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
APPENDIX A
APPENDIX B
