STATE OF CALIFORNIA GRAY DAVIS, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

April 24, 2001

TO: PARTIES OF RECORD IN CASE 00-06-020

This is the draft decision of Administrative Law Judge (ALJ) Pulsifer. It will be on the Commission's agenda at the next regular meeting 30 days after the above date. 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, attached, of the Commission's "Rules of Practice and Procedure." Pursuant to Rule 77.3 opening comments shall not exceed 15 pages. Finally, comments must be served separately on the ALJ and the assigned Commissioner, and for that purpose I suggest hand delivery, overnight mail, or other expeditious method of service.

/s/ Lynn T. Carew

Lynn T. Carew, Chief

Administrative Law Judge

LTC:avs

Attachments

ALJ/TRP/avs DRAFT CA-10

5/24/2001

Decision DRAFT DECISION OF ALJ PULSIFER (Mailed 4/24/2001)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

County of Orange, Complainant, vs. AT&T Communications of California, Inc. (U 5002 C), Defendant.

Case 00-06-020 (Filed June 16, 2000)

OPINION

This decision grants the motion of the County of Orange (County) to dismiss the above-captioned complaint without prejudice. Parties may seek to resolve their dispute in civil court. Funds deposited in escrow shall be returned to the County. The Commission reserves the right to issue an Order to show cause why the County should not be found in violation of Rule 1.

I. Procedural Background

This complaint, filed by the County on June 16, 2000, involves allegations of billing overcharges under contracts for telephone service entered into between the County and AT&T Communications of California, Inc. (AT&T). The County also asked for a full accounting from AT&T of the billed amounts that were properly due, and an order from the Commission directing AT&T to refund overcharges to the County.

On July 13, 2000, AT&T filed a motion to dismiss, arguing that the complaint failed to state a clear cause of action, was unduly vague, and was at least partially barred by the statute of limitations. Complainant filed an opposition to the motion on July 26, 2000, and AT&T filed a further reply on September 11, 2000. An Administrative Law Judge (ALJ) Ruling, issued October 5, 2000, denied the motion to dismiss, but amended the scope of the complaint to exclude any disputed charges that were barred from recovery by the statute of limitations.

On November 3, 2000, AT&T filed an Answer to the Complaint. On December 12, 2000, an ALJ Ruling scheduled a prehearing conference (PHC) for January 23, 2001. The ALJ subsequently granted the Complainant and Defendant's joint request for the PHC to be postponed to permit parties to pursue settlement discussions.

After parties informed the ALJ that attempts to reach a settlement had been unsuccessful, the ALJ and assigned Commissioner conducted a telephonic conference on February 14, 2001 where Complainant indicated its intent to file a motion to dismiss the complaint and to have the dispute resolved in Superior Court. The ALJ set a schedule for discovery to proceed and for parties to file pleadings with respect to the County's motion to dismiss.

On February 21, 2001, the motion to dismiss the above-captioned complaint was filed by County The motion was made pursuant to Rule 56 of the Commission's Rules of Practice and Procedure and California Code of Civil Procedure (CCP) Section 581. This motion included an attached Memorandum of Points and Authorities and the Declaration of Daniel Shephard. On March 2, 2001, AT&T filed a response in opposition to the motion. The County filed a reply to AT&T's response on March 6, 2001.