4. SBC's Trial Refund Program

As part of what was to be a six-month trial program, SBC on February 1, 2003, began offering a one-time credit of up to $500 to its customers who experienced toll charges as a result of contacting their ISP. The trial was discontinued after six weeks, by which time SBC had adjusted the accounts of 2,242 customers who had complained of ISP toll charges, eliminating $325,524 in toll charges.

During the trial program, SBC surveyed 172 customers. The survey showed that 65% of the customers used AOL as their Internet provider,⁵ that 64% of the customers had themselves selected their dial-up access numbers, that 84% had selected the access numbers from an on-line menu or directly from their ISP, and that 90% either had not verified that their access numbers were toll-free or did not know whether they had verified the numbers. Finally, when asked how the problem was fixed, 171 of the 172 customers surveyed said the toll charges stopped as a result of some action taken by their ISP or by the customer changing the dial-up access numbers.

In a motion to dismiss the complaint based primarily on the survey results, SBC told the Commission:

The survey confirms, as SBC California expected, that the problem is due to customer error in programming their computer dialers. The problem is out of SBC California's hands. SBC California does not select the ISP, does not set up the dialer, does not provide the access numbers, and obviously cannot verify for the customer whether a certain number is local or toll without the customer making contact. SBC California provides the service requested by the customer. (SBC Motion to Dismiss, at 11 (May 19, 2003).)

Following a further extension of time to continue settlement discussions, SBC's motion to dismiss, as well as an accompanying motion to file the survey results under seal, were denied in ALJ rulings issued on August 14, 2003. On the motion to dismiss the complaint, the ALJ found that SBC had failed to establish an absence of triable issues of fact as to its practices and procedures with respect to subscribers' ISP service. On the issue of whether the survey data could be filed under seal, the ALJ ruled:

SBC has shown little more than speculation as to the competitive harm that may result from disclosure of this data. That potential harm must be balanced against the public interest in the information. The public interest here is compelling. SBC's study shows some glimpse into the scale of the ISP toll call problem. It shows that the scale of the problem is perhaps larger than anyone realized. (ALJ Ruling Denying Pacific Bell's Motion to File Under Seal, at 6 (August 14, 2003).)

The ALJ's rulings on SBC's motion to dismiss and its motion to file survey results under seal have not been challenged by SBC.