VI. Pub. Util. Code § 311(g)(1)

The draft decision of ALJ Kenney was mailed to the parties in accordance with § 311(g)(1) and Rule 77.7. Comments on the proposed decision were filed on ____________ by _____________. Reply comments were filed on __________by ____________. These comments have been reflected, as appropriate, in the final decision adopted by the Commission.

Findings of Fact

1. UCAN alleged in its complaint that Choctaw does not offer several types of services required by D.96-10-066, including MRS.

2. Choctaw claims that it is not required by D.96-10-066 to offer MRS.

3. Choctaw's tariffs show that it currently offers MRS to its ULTS customers, but not to its other customers.

4. UCAN and Choctaw filed a Settlement that purports to resolve UCAN's complaint. To resolve the MRS issue raised in UCAN's complaint, the Settlement recommends that the Commission open a proceeding to consider whether and how prepaid providers of local service should comply with D.96-10-066.

5. It is feasible for Choctaw to offer MRS by charging a deposit for the service that customers would forfeit upon nonpayment of MRS rates and charges.

6. There is no evidence that Choctaw's failure to offer MRS has caused any physical or economic harm to Choctaw's customers or others.

7. There is no evidence that Choctaw has significantly benefited from its failure to offer MRS.

Conclusions of Law

1. Choctaw is required by D.96-10-066 to offer MRS to all of its customers.

2. Choctaw's failure to offer MRS to all of its customers violates D.96-10-066.

3. Pursuant to § 2107, Choctaw may be fined for violating D.96-10-066.

4. The Commission has discretion to devise a monetary penalty that advances the public interest. The Commission may decline to assess a fine for each day of a continuing violation if doing so advances the public interest.

5. It is necessary and reasonable to fine Choctaw for violating D.96-10-066 in order to deter future violations of Commission decisions by Choctaw and others. The amount of the fine should be based on the criteria set forth in D.98-12-075.

6. The application of the criteria in D.98-12-075 to the facts of this case indicates that it is reasonable to fine Choctaw $5,000 for its failure to offer MRS to all of its customers as required by D.96-10-066.

7. The Settlement's resolution of the MRS issue contravenes D.96-10-066, which requires Choctaw to offer MRS to all of its residential customers.

8. The Commission has broad, plenary power to modify a settlement to ensure that it is in the public interest and consistent with the law.

9. To ensure that the Settlement is consistent with the law, it should be modified to require Choctaw to file an advice letter to offer MRS. The advice letter should be filed no later than 30 days after the effective date of this decision.

10. To ensure that the Settlement is in the public interest, it should be modified to require Choctaw to pay a fine of $5,000 for its failure to offer MRS to all of its customers as required by D.96-10-066.

11. The Settlement, with the modifications described in the two previous Conclusions of Law, is reasonable in light of the whole record, consistent with law, and in the public interest.

12. The Settlement, as modified by this decision, should be approved.

13. No evidentiary hearing is required in this matter.

14. This decision should be effective immediately, so that the modified Settlement may be implemented expeditiously.

O R D E R

IT IS ORDERED that:

1. The Settlement Agreement contained in Appendix A of this decision is adopted with the following two modifications:

2. Case 00-04-039 is closed.

This order is effective today.

Dated ______________________, at San Francisco, California.

Appendix A

Settlement Agreement

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