ALJ/JJJ/hkr DRAFT Item 2

5/24/2001

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

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

State of California Department of Transportation, Cox California Telecom, L.L.C. dba Cox Communications (U-5684-C), and Coxcom, Inc. dba Cox Communications of Orange County, Complainants, vs. Crow Winthrop Development Limited Partnership, and Pacific Bell (U-1001-C), Defendants.

Case 00-05-023 (Filed May 19, 2000)

OPINION ON MOTIONS TO DISMISS

(See Appendix B for Appearances.)

TABLE OF CONTENTS

Title Page

OPINION ON MOTIONS TO DISMISS 2

I. Summary 2

II. Background 3

A. Competition and the Telecommunications Industry 3

B. Other Court and Administrative Actions 4

C. The Instant Case 5

D. Posture of the Instant Case 6

E. Need for a Hearing 7

III. Discussion 7

A. Standard of Review for Motions to Dismiss 7

B. Crow Development's Motion to Dismiss 8

1. Is Crow Development Operating as an Uncertified Public Utility? 8

a) Crow Development's Position 8

b) Complainants' Response 9

c) History of the Dedication Requirement 10

d) Crow Development Has Not, As A Matter of Law,
Dedicated Its Property to Public Use 14

e) Conclusions Regarding Applicability of Other
Public Utility Statutes to Crow Development 17

2. Conclusions Regarding Alleged Violations
of Law Applicable to Non-Utilities 18

C. Pacific's Motion to Dismiss 20

1. Alleged Violations of the Rights-of-Way Decision 20

a) Pacific's Position 20

b) Complainants' Response 22

c) Discussion 23

2. Alleged Violations of § 626 25

a) Pacific's Position 25

b) Complainants' Response 26

c) Discussion 26

D. TRO and Preliminary Injunction 28

E. Penalties Against Cox 29

IV. Comments on Draft Decision 29

Findings of Fact 29

Conclusions of Law 32

ORDER 35

Appendix A-Other Court and Administrative Actions

Appendix B-Appearances

OPINION ON MOTIONS TO DISMISS

I. Summary

The State of California Department of Transportation (Caltrans), Cox California Telecom, L.L.C. dba Cox Communications (Cox), and Coxcom, Inc., dba Cox Communications of Orange County (CoxCom)¹ complain that Crow Winthrop Development Limited Partnership (Crow Development) is a public utility violating California statutes and Commission orders because it has denied Cox and CoxCom access to the existing facilities and utility conduits on Crow Development's property. According to complainants, such access is necessary for Cox to provide local exchange telephone service to certain tenants. Complainants also say that Pacific Bell (Pacific) has violated California statutes and Commission orders because it has an arrangement with Crow Development that has the effect of restricting Cox's access to Crow Development's property, and has failed to prevent property owners from limiting other carriers' access to their property.

Crow Development and Pacific have filed motions to dismiss the complaint. We grant the motions and dismiss the complaint as against each defendant.