STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC UTILITIES COMMISSION
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3298
June 6, 2006 Agenda ID #5720
TO: PARTIES OF RECORD IN CASE 92-07-045
This is the draft decision of Administrative Law Judge (ALJ) John S. Wong. It will not appear on the Commission's agenda for at least 30 days after the date it is mailed. The Commission may act then, or it may postpone action until later.
When the Commission acts on the draft decision, it may adopt all or part of it as written, amend or modify it, or set it aside and prepare its own decision. Only when the Commission acts does the decision become binding on the parties.
Parties to the proceeding may file comments on the draft decision as provided in Article 19 of the Commission's "Rules of Practice and Procedure," accessible on the Commission's website at http://www.cpuc.ca.gov. Pursuant to Rule 77.3 opening comments shall not exceed 15 pages.
Comments must be filed with the Commission's Docket Office. Comments should be served on parties to this proceeding in accordance with Rules 2.3 and 2.3.1. Electronic copies of comments should be sent to ALJ Wong at jsw@cpuc.ca.gov. All parties must serve hard copies on the ALJ and the Assigned Commissioner, and for that purpose I suggest hand delivery, overnight mail or other expeditious methods of service. The current service list for this proceeding is available on the Commission's website, www.cpuc.ca.gov.
/s/ ANGELA K. MINKIN
Angela K. Minkin, Chief
Administrative Law Judge
ANG:sid
Attachment
ALJ/JSW/sid DRAFT Agenda ID #5720
Decision DRAFT DECISION OF ALJ WONG (Mailed 6/6/2006)
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Westcom Long Distance, Inc. (U 5163 C), Complainant, vs. Pacific Bell (U 1001 C); Execuline of Sacramento Inc. (U 5008 C), aka North Valley Consultants, Sierra Telecom, Call America (Chico), Chico Telecom, AA TeleCom, Toll Communication; CAS Network of Fresno; American ShareCom, Inc.; Americall Corporation (U 5031C), aka Page U, Cal Page, Pac West Telecom, Inc., Strategic Products Corp., Keith's Telephone Supply, Bell's Answering Service, Cal Net Paging, Masterson Communications; Teltrex Management Corp; Mark Scully d/b/a Private Exchange Network; Call America Business Communications Corp. (U 5055 C); BizTel Corporation (U 5078 C) dba Nor-Cal Microwave; Napa Valley Telecom Services (U 5044 C); Ameritel (U 5011 C); Western Tele-Communications, Inc. aka Western Information Systems, Inc. aka WestMarc Communications, Inc.; Does 1-100, Defendants. |
Case 92-07-045 (Filed July 23, 1992) |
OPINION GRANTING MOTIONS TO DISMISS
TABLE OF CONTENTS
Title Page
OPINION GRANTING MOTIONS TO DISMISS 2
I. Summary 2
II. Background 4
III. The Change in Complainants 10
IV. The IECs' Motions to Dismiss 10
V. Pacific's Motion to Dismiss 32
VI. Motion to Compel Compliance With Pub. Util. Code § 1706 41
A. Introduction 41
VII. Motions for Sanctions and Removal of Defendants' Counsel 45
VIII. Motion to Enforce Signing of Non-Disclosure and Protective
Agreement, Motion to Supplement the Record With New
Evidence, and Motion for Sanction 49
IX. Discovery-Related Motions 56
X. Complainants' Request for Compensation 57
A. Background 57
XI. Westcom's Emergency Motion to Full Commission to Issue Rulings 60
XII. Comments on Draft Decision 60
XIII. Assignment of Proceeding 60
Findings of Fact 61
Conclusions of Law 65
ORDER 70
OPINION GRANTING MOTIONS TO DISMISS
I. Summary
This is the final opinion in connection with this proceeding and closes a very old docket.1 Today's decision addresses the January 9, 1995 motion to dismiss that was filed by Call America Business Communications Corporation (Call America), and the January 10, 1995 motion to dismiss that was filed by Execuline of Sacramento, Inc. (Execuline), Express Tel, and Pac-West Telecom, Inc. (Pac-West).2 The motions to dismiss are based on the grounds that the complainants, Westcom Long Distance, Inc. (Westcom)3 and its president, J. Michael Sunde, allegedly engaged in the unlawful interception of the wire communications of third parties and invaded their privacy.
The decision also addresses the motion to dismiss of Pacific Bell (Pacific) that was filed on June 2, 1995. Pacific contends that the complaint should be dismissed on the following grounds: (1) abuse of process; (2) the complainants' lack of standing; (3) the complainants' ineligibility for compensation; and (4) absence of an economic incentive for interexchange carriers (IECs) to use exchange lines to terminate interexchange calls.
Based on the equitable doctrine of unclean hands, we conclude that the conduct of the complainants was reprehensible and that it abused the Commission's processes. This conduct and abuse merit dismissal of the complaint and all of the amendments and amended complaints. Accordingly, the motions of Call America, Execuline, Express Tel, Pac-West, and Pacific to dismiss the complaint and all of the amendments and amended complaints, with prejudice, are granted.
Although Westcom is no longer in business, due to the circumstances that have arisen in the course of this proceeding and other proceedings in which Westcom and Sunde have participated, we will allow the presiding officer in each Commission proceeding where Sunde makes an appearance to determine whether he should be required to retain a licensed attorney in order to participate in the proceeding, and whether Sunde should be permitted to act as a representative on behalf of a party to a Commission proceeding.
Today's decision also denies the complainants' January 20, 1995 and January 24, 1995 motions for sanctions and removal of defendants' counsel. In addition, this decision denies the complainants' February 1, 1995 motion to force Pacific to sign a non-disclosure and protective agreement and also denies other requests for relief.
As for the five outstanding discovery-related motions filed by the parties, no further action is required by the Commission since this decision grants the motions to dismiss.
1 An interim decision was issued in Decision (D.) 94-04-082 (54 CPUC2d 244), which was modified by D.94-10-061 (57 CPUC2d 120). In D.94-04-082, the Commission granted the motions to dismiss of certain defendants, and denied the motions to dismiss of other defendants. Those defendants whose motions to dismiss were denied have filed new motions to dismiss that are addressed in this decision.
2 The joint motion of Execuline, Pac-West and Express Tel, who are sometimes referred to jointly in this decision as "Execuline et al.," is also being filed on behalf of the following entities who are related to these three defendants: North Valley Consultants, Sierra Telecom, Call America (Chico), Chico Telecom, AA Telecom, Toll Communication, CAS Network of Fresno, American Sharecom, Inc., Americall Corporation, Page U, Cal Page, Strategic Products Corp., Keith's Telephone Supply, Bell's Answering Service, Cal Net Paging, Masterson Communications, Extelcom, Inc., Trans Tel, National Network Corp., Sun Management, Inc., Tel America, Trans-Tel Communications, and Trans America Management.
3 Westcom is no longer authorized to provide telecommunications service in California, its authority having been revoked by Resolution T-16529.
