Background
The motions that led to this phase of this proceeding were filed on May 31, 2000, when Cox filed papers seeking both a TRO and preliminary injunction against Pacific, as well as a request for mediation pursuant to the terms of Cox's interconnection agreement with Pacific. 1 Specifically, Cox sought to enjoin Pacific "from any further delivery of its White Pages directories that Pacific knows contain listings for Cox's customers who have requested that their listings be kept private." Cox alleged not only that it was likely to prevail on the merits, but also that "Cox and its customers will be irreparably harmed if Pacific is permitted to continue to deliver the tainted directories and does not expeditiously print new directories." (Cox TRO Motion, p. 1.)
The declarations attached to Cox's papers set forth an extensive history of the dispute, which arose out of Cox's obligation under its interconnection agreement to transmit listings for all of its customers to Pacific. It is Pacific that prints and distributes the White Pages directory used by all telephone customers in the San Diego area.
According to Cox's declarations, the problem began in August 1999, when new software deployed by Cox began failing to place a "customer privacy designator" on the names of Cox customers who had requested unlisted or non-published listings. Cox apparently did not become aware of this problem until May 4, 2000, when it began receiving calls from San Diego customers who had requested unlisted or non-published numbers but whose names and numbers appeared in the new directories that Pacific was distributing.
Both parties agree that Cox informed Pacific of the problem the next day, May 5, but by then approximately 100,000 of the tainted directories had already been distributed. On May 12, 2000, the problem came to the attention of a Pacific vice president, Cynthia Marshall, who ordered an immediate cessation of any further distribution of the tainted directories.
During the next two and one-half weeks, Cox and Pacific discussed options for handling the problem, including the viability of alternatives to reprinting the directory. Eventually, Pacific pressed Cox to assume all of the costs associated with printing and distributing a corrected directory-which were estimated at $4 to $5 million-but Cox declined to assume this obligation. Finally, Pacific informed Cox that if it did not agree to pay the costs of reprinting and redistribution, Pacific would be obliged to resume distribution of the tainted directories, since its schedule for printing and distributing the many other directories used by its California customers allegedly would not allow the matter to drag on indefinitely.
The issue came to a head on May 31, 2000. That morning, Cox learned from a newspaper reporter that Pacific intended to resume distribution of the tainted directories that very day. When counsel for Cox telephoned counsel for Pacific to inquire if this was true, Pacific's counsel confirmed that this was Pacific's intention.2 Later in the day on May 31, Cox filed the motion for a TRO and preliminary injunction (and request for mediation) described above. After learning of these motions, the Commission's Chief Administrative Law Judge (ALJ) telephoned senior officials at Pacific and requested that they immediately cease distribution of the tainted directories. Pacific's officials agreed, and asked that they be granted until noon the next day, June 1, to file a response to Cox's motions. The Chief ALJ agreed to this request.3
On June 2, 2000, President Lynch issued the TRO Ruling referred to above. The TRO Ruling ordered Pacific to cease "any further delivery of White Pages directories in the South and East San Diego region that contain the unlisted and non-published numbers of Cox's customers" until further notice, or until issuance of a ruling on Cox's motion for a preliminary injunction. (Mimeo., p.1.) The TRO Ruling also urged both Cox and Pacific to "focus on and mutually work toward the common goals of recovering all of the tainted directories that have been disseminated both in print form and electronically and of destroying tainted directories." (Id. at 12.)4
1 Cox requested mediation on the issue of whether Pacific's conduct in the San Diego directory matter breached various provisions of the interconnection agreement, which is dated July 25, 1996 and was approved by the Commission in Decision (D.) 96-10-040. 2 Declaration of Lee Burdick In Support of the Motion of Cox California Telcom., L.L.C. for a Temporary Restraining Order/Preliminary Injunction, dated May 31, 2000, ΒΆ11. 3 In its June 1 response, Pacific reiterated that the problem with transferring customer data originated with Cox, and noted that other competitive local exchange carriers (CLECs) had not encountered similar difficulties. Pacific also argued that Cox's delay and ultimate refusal to pay the cost of printing and distributing corrected directories had prejudiced other customers of Pacific who were waiting for new directories in their regions. However, Pacific did not dispute that on May 31st, it resumed distribution of the tainted directories that had been suspended on May 12th. 4 At its meeting of June 8, 2000, the Commission issued D.00-06-042, which ratified and confirmed the TRO Ruling.
