Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and A. Kirk McKenzie is the assigned ALJ in this proceeding.
1. In D.02-07-045, the Commission denied rehearing of the OII herein, but modified the OII to make clear that Blue Ridge is a party to this proceeding.
2. The settlement agreement appended hereto as Attachment A is unopposed.
3. The proposed settlement will achieve customer restitution, because approximately 1400 Eligible Consumers will each receive a restitution payment of $25, for a total of $35,000.
4. The restitution payments described in the preceding finding are consistent with those in other settlements the Commission has approved in recent years for telecommunications customers allegedly victimized by deceptive marketing, cramming, and slamming.
5. The proposed settlement will help to protect the public from unscrupulous marketing practices by telecommunications carriers, will serve to obtain refunds for customers allegedly injured by respondents' actions, and will help to promote a robust telecommunications market free from unfair competition.
1. The proposed restitution payments described in Finding of Fact 3 are reasonable.
2. The proposed fee of $7,825 to be paid to Rosenthal under the settlement agreement for its services as settlement claims administrator acting in a fiduciary capacity for Eligible Consumers is reasonable.
3. The $2,900,000 that respondents have agreed to pay to the Commission to settle this proceeding, in addition to the restitution to be paid to Eligible Consumers, is reasonable and lawful under the statutes and Commission decisions discussed in this opinion.
4. The provision in the settlement agreement requiring respondents to abide by the Call Unit Marketing and Sales Compliance Program included in the FCC TCU Consent Decree, for a period of two years following the Commission's decision approving the settlement agreement, is reasonable.
5. The draft fee agreement attached to the settlement agreement as Appendix A should be modified to provide that the fee paid to Rosenthal as legal claims administrator shall not exceed $7,825.
6. The settlement agreement should be modified to make clear that the right to rescind the agreement provided for in ¶¶1.4 and 7.3 thereof may be exercised only within the time periods specified in ¶7.3.
7. The settlement agreement should be modified to provide that once the restitution process (including preparatory work by Rosenthal) has begun, neither the Commission nor CPSD will have any obligation for any reason to return to respondents the $50,000 payment intended for restitution purposes, as described in ¶1.2.1 of the settlement agreement.
8. ¶5.10 of the settlement agreement should be modified to provide that in any application filed by any of the respondents herein or their affiliates pursuant to Pub. Util. Code §§ 851-854, 1001, or 1013, the applicant(s) shall disclose (a) the fact that this proceeding was filed, (b) the fact that this proceeding was settled pursuant to the settlement agreement approved herein, and (c) the relationship between the applicant and this proceeding.
9. Blue Ridge should be required to file, within 45 days after the issuance of this decision, a supplement to A.01-12-013. The supplement should set forth an update on the status of all the litigation against respondents NOS and/or ANI referenced in the protest filed by CSD on February 20, 2002, including complete docket numbers.
10. The supplement required by Conclusion of Law 9 should also contain Blue Ridge's certification, if such a certification can be given, that as of the date of the supplement, no investigation, administrative proceeding, or litigation has been commenced against or directed at Blue Ridge, NOS, ANI, or any of their respective affiliates, in connection with the provision of local exchange service.
11. In the event that Blue Ridge cannot give the certification required by Conclusion of Law 10, the supplement filed by Blue Ridge should provide full details (including docket numbers) regarding any investigation, administrative proceeding, or litigation that has been brought against or directed at Blue Ridge, NOS, ANI, or any of their respective affiliates, in connection with the provision of local exchange service.
12. The settlement agreement should be modified to provide that any failure by the respondents to make settlement payments in the amounts and on the schedule provided for in ¶1.3 of the settlement agreement shall constitute a material breach of the agreement.
13. With the modifications described in Conclusions of Law 5-12, the settlement proposed herein is reasonable in light of the whole record, consistent with law, and in the public interest.
14. With the modifications described in Conclusions of Law 5-12, the settlement agreement described herein should be approved.
15. Today's order should be made effective immediately.
IT IS ORDERED that:
1. Subject to the modifications required by Conclusions of Law 5-12, the settlement agreement appended to this decision as Attachment A is approved.
2. All billing agents, facilities-based providers, local exchange carriers, and all other persons and corporations subject to the jurisdiction of this Commission that provide services or facilities of any kind to any one or more of the respondents in this proceeding, shall cooperate fully in carrying out the provisions of the settlement agreement approved herein.
3. Within 45 days after the issuance date of this decision, the respondents shall execute the fee agreement with Rosenthal & Company LLC referenced in paragraph 2.1 of the settlement agreement approved herein, and shall make the payment specified in paragraph 1.2.1 thereof.
4. Investigation 02-05-001 is closed.
5. Application 01-12-013 remains open for further consideration, as described in the foregoing opinion, findings of fact, and conclusions of law.
This order is effective today.
Dated , at San Francisco, California.
ATTACHMENT A
ALL PARTIES' SETTLEMENT AGREEMENT
(END OF ATTACHMENT A)
