Comments on Draft Decision
The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ____________________, and reply comments were filed on ________________.
1. The Commission commenced this OII for the purpose of determining, among other things, whether respondent CEI had slammed and crammed customers in violation of Pub. Util. Code §§ 2889.5 and 2890, and whether in doing so, CEI had acted as the agent or joint venturer of respondent QAI.
2. On January 11, 2000, respondent Daniel Coleman filed a motion to quash the Commission's service of process on him, owing to an asserted lack of personal jurisdiction.
3. On January 19, 2000, QAI filed a motion to dismiss it as a respondent from this proceeding.
4. On February 15, 2000, the assigned ALJ issued a ruling permitting Daniel Coleman to participate in settlement discussions with CSD and CEI without thereby waiving his objections to the exercise by the Commission of personal jurisdiction over him, and taking his January 11, 2000 motion to quash service off the calendar.
5. On March 16, 2000, all parties except QAI filed and served a joint motion seeking approval of the settlement agreement set forth in Appendix A.
6. On June 8, 2000, the Commission issued D.00-06-037, which denied QAI's motion to dismiss.
7. On July 13, 2000, CSD and QAI filed and served a joint motion seeking approval of the settlement agreement set forth in Appendix B.
8. As part of the settlement agreement set forth in Appendix B, QAI has expressly waived its right to file comments on the March 16, 2000 settlement agreement set forth in Appendix A.
9. The settlement agreements set forth in Appendices A and B are unopposed.
10. When considered together as a package, the settlement agreements set forth in Appendices A and B will help to protect the public from unscrupulous practices by telecommunications carriers, will serve to obtain refunds for customers who have been injured by respondents' actions, and will help to encourage a robust telecommunications market free from unfair competition.
1. When considered together as a package, the settlement agreements set forth in Appendices A and B resolve all issues as to all parties in this proceeding.
2. For the reasons set forth in Findings of Fact 9 and 10 and in the discussion section of this order, the settlement agreements set forth in Appendices A and B are reasonable in light of the whole record, are consistent with law, and are in the public interest.
3. The settlement agreements set forth in Appendices A and B should be approved without modification.
4. All local exchange carriers, billing aggregators and billing agents that did business with, performed work for, or rendered services on behalf of CEI, should be directed to cooperate with CSD and other Commission staff to ensure that a complete and accurate list of all of CEI's current California customers is provided to CSD and Gilardi.
5. The Commission's Fiscal Office should be directed to remit to Gilardi, which has been designated as the Settlement Administrator charged with implementing the Settlement Administration Plan included as Attachment A to Appendix B, the $45,000 previously received from CEI for the purpose of making restitution payments to CEI customers.
6. The letter memoranda dated February 22, 2000 from Dave Wiegand to Jack Leutza, which memoranda are more particularly described in paragraph 21 of Appendix B, should be permanently attached to the advice letter filings more particularly described in paragraph 19 of Appendix B.
IT IS ORDERED that:
1. The settlement agreements attached to this decision as Appendices A and B are approved without modification.
2. Pacific Bell Telephone Company, Verizon California Inc. (formerly known as GTE California Incorporated), OAN Services, Inc., RSL COMM U.S.A., Inc. (RSL), and all other local exchange carriers, billing aggregators and billing agents that did business with, performed work for, or rendered services on behalf of respondent Coleman Enterprises, Inc. (CEI), shall cooperate fully with the Consumer Services Division (CSD) and other Commission staff to ensure that a complete and accurate list of all current California customers of CEI is provided on a timely basis to CSD and Gilardi & Co. LLC (Gilardi).
3. At the end of the 60-day Transition Period provided for in Paragraph 3 of Appendix A, respondent QAI, Inc. (QAI) and RSL shall discontinue service to all California customers provided service under any "sub" Carrier Identification Code (CIC) used by CEI, American Cyber Corporation (ACC) or Small Business Billing, Inc. (SBBI), or under the actual or any fictitious business name used by CEI, ACC or SBBI.
4. Within 60 days after the effective date of this order, the Commission's Fiscal Office shall remit to Gilardi, which has been designated as the Settlement Administrator charged with implementing the Settlement Administration Plan included as Attachment A to Appendix B, the $45,000 previously received from CEI for the purpose of making restitution payments to CEI's California customers.
5. The letter memoranda dated February 22, 2000 from Dave Wiegand to Jack Leutza, which memoranda are more particularly described in paragraph 21 of Appendix B, shall be permanently attached to the advice letter filings more particularly described in paragraph 19 of Appendix B.
6. The $500,000 fine provided for in paragraph 12 of Appendix A shall be suspended for a period of five years from the effective date of this order (as provided in paragraph 13 of Appendix A), provided that during such five-year period, each of the individual and corporate respondents who has entered into the settlement agreement set forth in Appendix A carries out the duties assigned to such respondent by the settlement agreement. In the event that any one or more of such respondents fails to carry out any of its duties under the settlement agreement, then CSD may file a petition pursuant to paragraph 14 of Appendix A to reopen this proceeding, and to impose all or part of the $500,000 fine. If, at the end of the five-year period specified in paragraph 13 of Appendix A, CSD has not filed a petition to reopen this proceeding and impose all or part of the $500,000 fine, then said fine shall be deemed vacated.
7. The $300,000 fine provided for in paragraph 15 of Appendix B shall be suspended for a period of three years from the effective date of this order (as provided in paragraph 16 of Appendix B), provided that during such three-year period, QAI carries out all of its duties under the settlement agreement set forth
in Appendix B. In the event that QAI fails to carry out any of its duties under the settlement agreement, then CSD may file a petition, pursuant to paragraphs 16 and 19 of Appendix B, to reopen this proceeding and to impose all or part of the $300,000 fine. If, at the end of the three-year period specified in paragraph 16 of Appendix B, CSD has not filed a petition to reopen this proceeding and to impose all or part of the $300,000 fine, then said fine shall be deemed vacated.
8. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
