III. Discussion

After a careful review of the record and relevant legal precedent, we affirm our holdings in D.04-05-057 and D.04-10-013 that this Commission is not preempted from regulating the terms and conditions of telecommunications law by federal law and that there is a large and growing need for consumer protection rules in telecommunications service.

A. Legal Authority

1. Federal Preemption

Section 332(c)(3) of the Federal Telecommunication Act preempts state regulation of wireless rates or entry but expressly confers on states the authority to regulate "other terms and conditions of wireless service."4 In interpreting section 332(c)(3), the FCC has made clear that Congress' preference for market forces to shape the development of the industry is not "absolute" and Congress specifically chose not to "foreclose ... state regulation."5

The 1996 Telecommunications Act (1996 Act) maintained the dual regulatory framework in § 332(c)(3) and reinforced the states' important role to protect consumers and to ensure reasonable terms and conditions of all telecommunications services. While the 1996 Act was designed to promote competition, Congress understood that the Act's provisions fostering competition "depend[ ] in part on state law for the protection of consumers in the deregulated and competitive marketplace" and that state "consumer protection laws ...form part of the competitive framework to which the FCC defers."6 Section 253(b) states that "[n]othing in this section [governing state regulatory authority] shall affect the ability of a State ... to impose requirements necessary to protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers."7

If there is any lingering doubt about state authority, one need only to turn to section 601(c), which expresses Congress' clear intent not to occupy the field, and to limit the preemptive effect of the 1996 Act only to those specific areas where there is an express intent to preempt, "This Act ... shall not be construed to modify, impair, or supercede ... State...law unless expressly so provided."

2. The FCC's Truth In-Billing Order

In D.05-01-053, we held that recent actions and statements by the FCC warranted further consideration by the Commission. Specifically, in March 2005, the FCC adopted its Truth in Billing Order (TIB Order) which: 1) subjected wireless carriers to the requirement that billing descriptions be brief, clear, non-misleading and in plain language; 2) permitted non-misleading line items; 3) reiterated that it is misleading to represent discretionary line item charges in any manner that suggests such line items are taxes or charges required by the government; and 4) clarified that state regulations requiring or prohibiting the use of line items for wireless providers constitute rate regulation and are preempted under section 332(c)(3)(A).8

In response to the March 10, 2005 ACR, parties submitted comments regarding the impact of the TIB Order on this proceeding. The Wireless Group9 argued that the Order finds that state regulations requiring or prohibiting line items in wireless pricing equates to rate regulation and are therefore preempted.10 The FCC, according to the Wireless Group, is defining the states' role in regulation of billing practices and any regulations exceeding federal standards will be preempted.11

The Office of Ratepayer Advocates (ORA, now known as the Division of Ratepayer Advocates) and the California Attorney General's Office (AG) contend that the FCC explicitly stated that its ruling did not preempt state consumer laws "to the extent such laws require or prohibit the use of line items."12

As discussed above, this Commission has the jurisdictional authority to regulate the terms and conditions of wireless service. The TIB Order reinforced this authority, explaining that:

While we hold that state regulation prohibiting or requiring CMRS [commercial mobile radio service] line items constitutes preempted rate regulation, we emphasize that this preemption does not affect other areas within the states' regulatory authority. For example, our ruling does nothing to disturb the states' ability to require CMRS carriers to contribute to state universal service support mechanisms or to impose other regulatory fees and taxes. .... Indeed, in distinguishing rate and entry regulations from "other terms and conditions," which are not expressly preempted under section 332, Congress explained that the latter includes "such matters as customer billing information and practices and billing disputes and other consumer protection matters . . . or such other matters as fall within a state's lawful authority."

The TIB Order continues,

We also emphasize that not all regulation relating to a carrier's bills and its relationship with customers represents preempted "rate regulation." For example, state regulations that address the disclosure of whatever rates the CMRS provider chooses to set, and the neutral application of state contractual or consumer fraud laws, are not preempted by section 332. In addition, state requirements that are consistent with our federal truth-in-billing rules can coexist with these rules.13

The limited scope of the TIB Order is also of note. While the FCC sought comments on whether to go beyond the "line item" rules addressed in the TIB Order and preempt state regulation of CMRS carriers' billing practices, the FCC has not taken any further action.14 In addition, the FCC's TIB Order evinced no intent to preempt state regulation in other areas, such as point of sale disclosures and advertising.

We conclude that the Commission is permitted to develop state telecommunications consumer protection rules, but those rules cannot conflict with federal rules. Furthermore, in its role as a consumer protection agent, the Commission has the authority to develop consumer protection rules that apply to all telecommunications providers.

3. Rates versus Terms and Conditions

The rules proposed herein fall well within the state's authority, and are not preempted. To run afoul of section 332 of the 1996 Act, a state consumer protection rule must directly affect rates. Rate regulation does not occur when state consumer protection rules produce an "increased obligation" on the wireless carrier that "could theoretically increase rates."15 Likewise, "Congress did not preempt all claims that would influence rates, but only those that involve the reasonableness or unlawfulness of the rates themselves."16

Section 332 demonstrates that Congress intended only a narrow preemption of state authority. Section 332 only denies states authority to "regulate" rates and entry. It does not use broader language, such as the prohibition on states' enacting or enforcing laws "relating to" rates, as is contained, for example, in the Airline Deregulation Action of 1978 or the Employee Retirement Income Security Act of 1974.17

The Wireless Group would broadly define "rates" to include all regulations that could have an impact, however indirect, on rates. For example, there has been a great deal of discussion on the issue of time limitations for early termination fees in this docket. Stayed rule 3(f) in Part II of G.O. 168 states that "[s]ubscribers may cancel without termination fees or penalties any new tariffed service or any new contract for service within 30 days after the new service is initiated." Some parties interpret Rule 3(f) as regulating rates by virtue of the fact that this rule limits the enforceability of termination fees that most carriers include as part of their rate structure.

We find that the interpretation that the Wireless Group urges upon us is overly broad and decline to adopt it. As the court in Iowa v. United States Cellular Corp. held,

US Cellular would have this Court construe "rates" so broadly as to incorporate anything that might touch upon U.S. Cellular's business. U.S. Cellular's interpretation requires numerous degrees of separation in order for a state claim to escape preemption by the Communications Act. This is problematic. Inherently, any interference with U.S. Cellular's business practices will increase its business expenses. These increased business expenses would likely be passed on to customers as rate increases. If "rate" included any action that indirectly induced rate increases, the exception would be swallowed by the rule. This could not have been Congress' intent. US Cellular's interpretation would destroy the Act's savings clause, making all actions affecting the company federal in nature."18

We agree with the court that the term "'rate' must be narrowly defined or there is no ability to draw a line between economic elements of the rate structure and normal costs of operating a telecommunications business that have no greater significance than as factors to be considered in determining what will ultimately be required of rates to provide a reasonable return on the business investment."19

1. The Evidentiary Record Demonstrates the Need for Consumer Protection Rules

Stronger consumer protection, properly tailored to a rapidly changing industry, is needed in California. In 2000, the Commission issued a staff report that demonstrated the need for specific consumer protection measures (including a telecommunications consumers' bill of rights), rules to implement those rights, and changes to the industry's current tariffing and limitation of liability practices.20 It showed that the Commission's traditional mechanism for advancing consumer protection - tariff regulation - is ineffectual and does not serve consumers well in a competitive market.21 Staff evaluated 1998 and 1999 consumer complaint data regarding CMRS carriers and concluded that a single set of consumer protection rules applicable to all telecommunications services was warranted.22

The need for consumer protection was underscored by the public response to the Commission's staff report. Between June and September 2000 the CPUC held 20 public participation hearing sessions throughout the state. The Commission received public statements from more than 300 of the 1200 hearing attendees as well as another 2000 responses via letter and email. As D.04-05-057 recognized, "[t]he general public sentiment as expressed in both the public participation hearings and correspondence was overwhelmingly in favor of the Commission's taking a much stronger consumer protection role."23

While carriers contend that market forces and the existing enforcement mechanisms are sufficient to protect consumers adequately, evidence of consumer harm supports a different conclusion. For example, "[c]omplaint data gathered at both the federal and state level, national surveys, and state and federal enforcement activity combine together to create a clear picture of consumer need for a comprehensive set of consumer protection rules."24 Some highlights from the state and federal data include:

We are not persuaded by the carriers' assertions that perceived limitations of the above data means that stronger consumer protections are not warranted. For example, the argument that the recorded number of complaints by the Commission is a small percentage of overall subscribership33 is not persuasive. As several parties demonstrated, a small percentage of aggrieved customers is often representative of a larger problem since only a small percentage - often less than 1% -- of customers that experience problems actually seek help from their carriers, file complaints with governmental agencies, or pursue formal lawsuits when problems arise.34

Input from other sources further underscores the need for stronger consumer protection in California:

Residential customers are not the only group of consumers in need of stronger protections. According to the California Small Business Roundtable and the California Small Business Association (CSBRT/CSBA), which represent 203,000 small businesses,

CSBRT/CSBA has been a strong supporter of [the cramming] rules because we heard from many small business owners who were shocked to find that they were being charged for products and services that they did not order, frustrated at the lack of responsiveness of carriers, billing agents and vendors and outraged by [sic] time and energy it took to reverse unauthorized charges on their phone bill. Thousands of customers were victimized by these unscrupulous practices costing them millions of dollars.40

In contrast to the wealth of evidence on the need for protections, the carriers failed to present evidence demonstrating consumer satisfaction or low number of complaints and inquiries to their own internal customer service departments.41 Taken together, the evidence on the record provides compelling support for the need for a stronger consumer protection, including some expansion in rules.

Given the changing demographics in California, we are particularly concerned about adequate consumer protection for California's growing population who are not fluent in spoken and/or written English. According to the 2000 U.S. Census data, 39.5 percent of Californians speak a language other than English at home.42 The Latino Issues Forum (LIF) explained that while the telecommunications issues facing non-English consumers are similar to other customers, the lack of language appropriate materials often makes these consumers vulnerable to fraud and abuse.43 And, when technology is rapidly changing there is a threat of increased confusion and potential market abuse of non-English speakers.44 Previous enforcement of these abuses has been expensive, and the results were less than acceptable to consumers.45

We are also concerned that the needs of the more than 6 million Californians with disabilities are not adequately addressed. Reliable, accessible and affordable telecommunications services are vital to the health, safety and well-being of disabled Californians and a vital part of our mission to protect all citizens of this state. As DRA points out, there is little data or studies on the needs of the disabled. We direct the Commission's Telecommunications Division to research the unique needs of telecommunications consumers with disabilities and provide a report to the Commission regarding those needs within one year from the mailing of this Decision. The reports shall include recommended next steps and potential solutions.

We conclude that the protection of our most vulnerable citizens through both education and adequate rules are necessary requirements in a California telecommunications consumer protection program. It is critical to that we commence the long delayed phase of our consumer protection proceeding to address the needs of limited English proficiency and disabled consumers.

2. Even with a Competitive Market, Existing Consumer Protection Laws Are Not Adequate

While, competitive market forces greatly assist consumers, such forces alone are not sufficient to protect consumers. We agree with the FCC that actual rules, in addition to policy principles, voluntary action, and competition, are needed for effective consumer protection:

As competition evolves, the provision of clear and truthful bills is paramount to efficient operation of the marketplace...(S)ome providers in a competitive market may engage in misconduct in ways that are not easily rectified through voluntary actions by the industry. It is critical for consumers to receive accurate billing information from their carriers to take full advantage of the benefits of the competitive marketplace.46

Certainly existing Commission decisions, state statutes, and federal laws and regulations provide some protection for consumers. However, we concur with the consumer groups' observation that there are gaps where additional protections are needed. ORA pointed out that "[the] gaps occur due to lack of consistent applicability to all carrier types and insufficient specificity in existing rules"47 and that a number of the stayed Rules provide new protections to consumers which do not exist in current laws and regulations.48 Many of the existing consumer protection rules apply only to certain types of carriers and often do not include wireless carriers.49 Thus, consumers are left with a patchwork of rules that provides inconsistent protection.

The Commission's existing consumer protection measures (not including the spamming and cramming rules) span a large number of decisions, some of which date back to the early 1990's. Currently, a consumer must be able to identify the individual PUC decision that relates to his or her specific carrier and the exact ordering paragraph within the decision that applies to the situation. As TURN points out, it is unreasonable to assume that any but sophisticated PUC practitioners can hope to accomplish this task. Moreover, since our decisions currently are available only in English, they are typically inaccessible to the numerous non-English telecommunication consumers in California. Today's decision simplifies the Commission's maze of rules, integrates them in a single document, and applies them on a uniform basis.

The carriers cite California's unfair business practices laws as sufficient protection for consumers.50 Many parties testified that the barriers to bringing these cases to court, much less winning, are extremely high.51 Although individuals may bring lawsuits under the Unfair and Unlawful Business Practices Act,52 often the dollar amount at issue is too small for the average consumer to obtain legal counsel and to see a case to its conclusion. As we know from our hearings this past winter on the impact of higher natural gas rates on low income customers, an astounding percentage of working Californians cannot afford basic living expenses and any increase in expenses could mean a choice between paying the utility bill and buying food.53 Litigation is not a feasible solution for many, if not most, aggrieved consumers. Even if litigation is commenced, customers likely must wait months, if not years, for a resolution of their problem. As we stated in our decision adopting the cramming rules, after the fact enforcement of existing laws is an inadequate substitute for up-front standards of conduct and consumer protections because "imperfect legal remedies and fly-by-night operators often make it impossible to make the victims whole."54

Moreover, California's unfair business practices laws are not an efficient and effective solution for the carriers. The reliance on these laws does not provide the "national, uniform" solution that the wireless carriers seek. If consumers are forced into court in order to resolve most disputes with their providers, the result will be a flurry of litigation dispersed throughout the state. Each case will have its own unique set of facts and a different judge to interpret those facts, most likely creating a unique outcome for each case. Indeed one already sees this problem with regard to conflicts among federal circuit court holdings on many consumer-brought complaints against wireless providers.55

Confusion and uncertainty exists because the rules governing service are scattered in a number of statutes of varying degrees of specificity and a number of Commission decisions dating back to 2000. Consumers and carriers - in particular new entrants - are greatly benefited by the ability to find the applicable rules in a single document. This current hodgepodge makes it virtually impossible for consumers to understand their rights. Even with a costly and vigorous education campaign, consumers will have great difficulty in understanding where to go to determine what their rights are and how to enforce them, absent an integrated set of rules.

3. Rights Without Enforceable Rules Are Meaningless

Some parties argued that the Commission only needs a set of consumer rights and that rules are not necessary. We disagree. Standing alone, consumer rights promulgated by this Commission provide important policy directives and perhaps better understanding of the Commission's views, but no more. In contrast, rules provide the legal ability to implement and enforce the policies. As one witness testified,

That proposal [to implement a Bill of Rights without revised Rules] is nothing more than a statement of generic ideals that lacks any enforceable, specific regulations and does not provide any of the protections that were designed to be included in the May 2004 general order. (RT, p. 1276)

The May 2, 2005 ACR provided an attached proposed decision that included a Consumer Bill of Rights. The proposed decision explained that the principles listed in the Bill of Rights serve the same purpose as a statement of legislative intent56. Several Parties pointed out in their Comments to the May 2, 2005 proposal pointed out that legislative intent is unenforceable.57 The Wireless Group noted that, "the proposed General Order appears to contemplate the adoption of the Bill of Rights as a statement of legislative intent and not a list of enforceable rights."58 They further explain that a legislative intent is a statement of policy and is unenforceable.59 Disability Rights Advocates (DRA) pointed out the inherent problems of rights without rules, noting that such rights "would function only to give consumer a false sense of security. Carriers would use it as evidence to claim that they are regulated, but in reality the carriers will not be held accountable."60

While we acknowledge the importance of a consumer bill of rights, we conclude that absent a set of consumer protection rules, the rights are inadequate. The rights simply state the Commission's policy views - which may be useful, but are not enforceable absent rules. And, even worse, rights without rules are confusing to consumers who easily may believe that the Bill of Rights confers protections that the Commission or others will or can enforce.

4. The Evidence On The Cost Of Compliance Is Not Persuasive

The Commission approved the stay of G.O. 168, in part, to address the concerns regarding the cost of compliance. In our review of the stayed rules, we have eliminated a number of provisions and streamlined others, to reduce any carrier complaints of undue costs.

Likewise, we have considered the record with respect to the economic impact of adopting consumer protections. In 2003, parties submitted several studies regarding economic impacts on the record. The Utility Consumers' Action Network (UCAN) submitted a study ("the Navarro paper"61), seven wireless carrier representatives62 tendered "the LECG Studies,"63 and the Cellular Carriers Association offered "the Hazlett Paper."64 All these items were accepted into the record in D.04-05-047. That decision accurately identified critical flaws in the LECG Cost studies.65 We concur with the D.04-05-057 statement that "even if full faith were awarded to the LECG studies estimation of implementation costs, its overall findings [are] largely mitigated by the revisions to the rules made since the study was conducted."

None of the evidence submitted on the record after the aforementioned studies warrants abdication of consumer protection rules. Carriers present a great deal of general information on the record. For example, wireline carriers claim that compliance with G.O. 168 (before the stay) resulted in substantial up-front implementation costs including time-consuming and inefficient work-around processes to meet compliance deadlines.66 Moreover, they state that if the G.O. were reinstated, carriers would have substantial ongoing compliance costs, including software development and maintenance, increased contact time in customer interactions, printing and postage.67 Similarly, Nextel presents system development costs of $15-20 million that it could incur to comply with consumer protection rules enacted in 200368 as evidence of GO 168 compliance costs. It also asserts that complying with state specific consumer protection rules will raise carrier costs (among other issues) to a level that will outweigh "any intended benefits to the consumer."69

While the evidence submitted on the record provides further context to carrier concerns about cost issues, it continues to suffer from many of the same flaws as the LECG studies. We concur with the consumer group observations that this part of the record is an inadequate basis to reject adoption of consumer protection rules. For example, ORA notes the limitations of the evidence Nextel presents:

"[Nextel] ...has not specified which rule or rules would necessitate this expenditure, what types of system modifications would be needed nor what processes or system features would be impacted requiring change. Mr. Byers has presented an unsubstantiated claim that Nextel's costs might increase and by a one-time amount that pales in comparison with the normal costs of running and maintaining Nextel's Ensemble system, assertedly in the hundreds of millions of dollars per year."70

Moreover, "[Nextel] asserts that complying with consumer protection rules will raise carrier costs to a level that will outweigh "any intended consumer benefits." (Declaration of Henry J. Herman, p.16) This broad statement is presented without factual support in terms of citing specific rules, costs caused thereby, or consumer benefits outweighed."71

We do not find the testimony on the burden created by the cost of complying with G.O. 168 to be compelling, especially in light of the streamlined version of Part 2 that we adopt today. In D.04-05-057, we found that consolidation of the consumer protection rules provides economic benefits through reduced regulatory uncertainty as well as reduced complexity.72 In fact, compliance with a well designed set of rules and regulations will give consumers confidence in the telecommunications industry and encourage growth and development of markets.73

While the carriers argued that the cost of implementing the rules outweighed the benefits of the rules, the carriers provided little evidence to support the claim and we find no reasonable basis for reversing our earlier findings on the cost of compliance.

According to the Commission's Telecommunication Division, 130 carriers or almost 75% of all carriers indicated that they had fully complied with GO 168 as of December 6, 2004-approximately six months following the effective date of the Decision. Eighty percent of the requests for extensions concerned only subparts of four rules.74 Consumer groups and CALTEL concluded that the fact that so many carriers did not seek extensions to comply with the majority of the rules and that many were in compliance with those rules before they were stayed is strong evidence that implementing the rules did not create a hardship on carriers.75 Furthermore, ORA and the AG argued that not reinstating G.O. 168 "would cause unnecessary hardship on carriers who, in good faith, have complied with the rules and will now have to modify their operations or procedures to undo the rules that they have implemented."76 And, as we noted above, absent a comprehensive set of rules and consistent interpretation of the rules, the carriers will face potentially costly litigation that can result in fragmented rules and outcomes.

4 47 U.S.C. § 332(c)(3).

5 In re Pet. of Ohio, 10 FCCR 7841, ¶¶ 9, 44 (1995). Courts agree. See GTE Mobilnet v. Johnson, 11 F.3d 469, 480 (6th Cir. 1997); Cellular Telecom Indus. Ass'n v. FCC, 168 F.3d 1332, 1335 (D.C. Cir. 1999).

6 Ting v. AT&T, 319 F.3d 1126, 1141, 1145 (9th Cir. 2003); In re Pet. of Calif., 10 FCCR 7386, ¶ 108 (1995) (unreasonable business practices can and do arise in competitive markets).

7 47 U.S.C. § 253(b); See, Communications Telesystems Int'l v. CPUC, 196 F.3d 1011, 1017 ([t]he Act was designed to prevent explicit prohibitions on entry by a utility into telecommunications, and thereby to protect competition in the industry while allowing states to protect consumers against unfair business practices).

8 In the Matter of Truth-in-Billing and Billing Format, Second Report and Order, Declaratory Ruling and Second Further Notice of Proposed Rulemaking, CC Docket No. 98-170, CG Docket No. 04-208, FCC 05-55, (March 15, 2005) (TIB Order).

9 The Wireless Group consists of Cingular Wireless, LLC; Cricket Communications, Inc.; Nextel of California, Inc.; TMobile; Sprint Telephony PCS, L.P. and Sprint Spectrum L. P., as agent for Wireless Co., L.P.,dba Sprint PCS; Verizon Wireless; and CTIA - The Wireless AssociationTM.

10 Wireless Group Comments, p. 10.

11 Id. p. 11.

12 ORA and Attorney General's Comments (May 25, 2005), pp. 7-8.

13 FCC TIB Order, ¶33.

14 Id., ¶ 50.

15 Brown v. Washington/Baltimore Cellular, Inc., 109 F. Supp. 2d 421, 423 (D. Md. 2000); see also Phillips v. AT&T Wireless, 2004 U.S. Dist. LEXIS 14544, at *36 (S.D. Iowa 2004 ('rate' must be narrowly defined or there is no ability to draw a line between economic elements of the rate structure and normal costs of operating a telecommunications business.")

16 Id.

17 49 U.S.C.App. § 1305(a); 29 U.S.C. § 1144(a). See, Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992).

18 Iowa v. United States Cellular Corp., 200 WL 33915909 (S.D. Iowa Aug. 7, 2000).

19 Id.

20 Consumer Protections for a Competitive Telecommunications Industry: Telecommunications Division Staff Report and Recommendations (Feb. 3, 2000) (TD Staff Report).

21 As noted in D.04-05-057, tariffs have been the primary vehicle for Commission-initiated consumer protections for all classes of carriers. However, the requirements for filing tariff have evolved differently for different classes of carriers. Incumbent local exchange carriers (ILECs) and competitive local exchange carriers (CLCs) still file tariffs, while non-ILEC affiliated interexchange carriers (IECs) have the choice to file tariffs. D.96-12-071 exempted CMRS carriers from filing tariffs but required them to continue following their existing consumer protection tariff rules on a transitional basis.

22 TD Staff Report, pp. 13-14. The TD Staff Report indicated an increase in the number of informal complaints that the Commission received regarding 158 registered CMRS providers operating in California, with 2,404 informal complaints in 1998 and 3,356 such complaints in 1999.

23 D.04-05-057, pp. 4-5.

24 TURN Opening Brief (October 24, 2005), p. 1.

25 According to ORA, as of Sept. 16, 2005, data from CAB shows an increase from 5,431 in 2004 to 5,814 in 2005. The 2005 figure does not include complaints backlogged in the system.

26 From 2000 to 2004, wireline billing complaints comprised an average of 56% of total wireline complaints and wireless billing complaints averaged 74% of total wireless complaints. Also, 17% of wireline complaints were "service" ones while 12% of wireless complaints fell in that category.

27 TURN Opening Brief, pp. 13-14 (based on analysis of FCC data).

28 Alexander Opening Testimony (TURN), (Aug. 5, 2005), p. 30. TURN notes, "...these figures only include informal complaints where the customer deposited the disputed amount with the Commission, a relatively small percentage of all informal complaints."

29 TURN Opening Brief, p. 9.

30 Id., p. 8; TD Staff Report, p. 49.

31 ORA Opening Brief (October 24, 2005), pp. 1-3; Maack Opening Testimony (ORA) (Aug. 5, 2005), pp. 2-5; Maack Reply Testimony, (Sept. 16, 2005), p. 5.

32 Attorney General Opening Comments and Attorney General Reply Comments, (June 9, 2000), pp. 2-3.

33 Schulte and Johnson Reply Testimony (Wireless Group) (Sept. 16, 2005) p. 1.

34 TURN Opening Brief, p. 6; Alexander Opening Testimony, pp. 35-36; ORA Opening Brief, p. 10; Maack Opening Testimony, pp. 13-14.

35 ORA Opening Brief, p. 9; Reporter's Transcript (RT) (Sept. 29, 2005), p. 1269.

36 ORA Opening Brief, p. 9; Three Steps to Better Cellular, Consumer Reports (February 2003).

37 See, ORA Opening Brief, p. 12; Comments of the Attorney General and Office of Ratepayer Advocates (May 20, 2004), p. 5. citing, National Association of State Utility Consumer Advocates' Petition for Declaratory Ruling Monthly Line Items and Surcharges Imposed by Telecommunications Carriers, In the Matter of Truth in Billing and CC Docket No. 98-170 Billing Format (March 30, 2004), p. 10.

38 Alexander Opening Testimony, p. 31.

39 Id., pp. 32-34.

40 CSBRT/CSBA Opening Comments on Proposed Decision (January 17, 2006), p. 3.

41 TURN Opening Brief, pp. 5-6. TURN notes "While the carriers are calling into question the sufficiency of Commission complaint data or the significance of public participation hearings, what is noticeably absent is any attempt by the carries to support their critical analysis with their own internal data."

42 Available at www.census.gov.

43 LIF Reply Brief (October 31, 2005), p. 2.

44 LIF Opening Brief (October 24, 2005), p. 6.

45 See, D.05-06-033, (Investigation of Clear World Communications).

46 FCC TIB Order, pp. 17-18.

47 Maack Opening Testimony, p. 1.

48 ORA Opening Brief, pp. 4-7. ORA cites rules 1(a)[in its entirety], 1(a)(1),1(a)(2), 1(c)(1), 1(e)(1), 1(e)(2), 1(f), 1(g), 1(h), 2(d) 3(e), 3(h), 3(i), 3(m), 5, 6(b), 6(c), 6(f), 6(g), 6(i), 6(j), 7(a), 7(b), 7(d), 8(a), 8(b), 8(e), 9(e), 11(d), 13(a), 14(b) as GO 168 rules that provide new protections to consumers which do not otherwise exist in current laws and regulations.

49 TURN Opening Brief, pp. 30-31; ORA Opening Brief, pp. 7-8.

50 Business & Professions Code (B&P) §§17200, 17500.

51 See, e.g., TURN Opening Brief, pp. 31-34.

52 B&P Code § 17200, et seq.

53 See, Greenlining Opening Comments to Proposed Decision (January 17, 2006), p. 5 (70% live paycheck to paycheck and one-third live at or below the poverty level).

54 D.01-07-030, p. 10.

55 See, e.g., Fedor v. Cingular Wireless Corp, 355 F.3d 1069 (7th Cir. 2004) (complaint over delays in billing airtime charges not preempted rate regulation); Phillips v. AT&T Wireless, 2004 U.S. Dist. LEXIS 14544 (S.D. Iowa 2004) (early termination fee is not a "rate" and therefore complaint re: reasonableness of ETF can be brought in state court); But see also, Redfern v. AT&T Wireless Servs., 2003 U.S. Dist. LEXIS 25745 (S.D. Ill. 2003) (ETF was part of rate structure so state law claim preempted), Chandler v. AT&T Wireless Servs., 2004 U.S. Dist. LEXIS 14884 (S.D. Ill. 2004).

56 May 2, 2005 ACR, Attached Proposal, p. 2.

57 See Disability Rights Advocates Comments (May 31, 2005), p. 2 (Part II rules are a necessary support to each corresponding right); ORA Comments (May 31, 2005), pp. 3-4 (rights without rules are unenforceable); TURN Comments (May 31, 2005), p. 3 (without specific and enforceable rules, the rights do very little to help consumers).

58 Joint Wireless Group Comments (May 31, 2005), p. 4.

59 Id., p. 5.

60 DRA Opening Comments on Proposed Decision (January 17, 2006), p. 3.

61 UCAN Comments, (August 25, 2003), Appendix A, (Peter Navarro, An Economic Justification for Consumer Protection Laws and Disclosure Regulations in the Telecommunications Industry).

62 AT&T Wireless Services, Inc.; Nextel of California, Inc.; Omnipoint Communications, Inc. dba T-Mobile; Pacific Bell Wireless LLC dba Cingular Wireless, LLC; Sprint Spectrum, LP; Verizon Wireless; and the Cellular Carriers Association of California.

63 The Financial and Public Policy Implications of Key Proposed Telecommunications Consumer Protection Rules on California Wireless Carriers and Customers: Economic Analysis (September 2003); and, The Financial Implications of Key Proposed Telecommunications Consumer Protection Rules on California Wireless Carriers and Customers: Cost Study Report (September 2003) (the LECG Studies).

64 Thomas W. Hazlett, Cellular Telephone Regulation in California - A Critique of Peter Navarro's Paper Submitted to the California Public Utilities Commission (November 3, 2003).

65 D.04-05-057, pp. 136-138. The LECG studies flaws were: 1) reliance on implementation cost estimates of untested accuracy, 2) the assumption that 100% of the implementation costs will be passed onto consumers, 3) failure to take into account any consumer benefits, and 4) failure to address any potential cost savings that could partially offset implementation costs.

66 Wireline Group Reply Comments (June 15, 2005) p. 10.

67 Id.

68 Byers Opening Testimony (Nextel) (July 25, 2005), p. 6.

69 Herman Opening Testimony (Nextel) (August 5, 2005), p. 16; See also, Nextel Opening Brief (October 24, 2005) pp. 2, 11-15.

70 Maack Reply Testimony, p. 1.

71 Id, pp. 4-5.

72 D.04-05-057, p. 134.

73 CSBRT/CSBA Opening Comments on Proposed Decision, p. 5

74 ORA and Attorney General Comments (May 31, 2005), p. 16.

75 Id, pp. 23-24; CALTEL Reply Comments (April 4, 2005), p. 2; ORA Opening Brief (October 24, 2005), p. 19 (cites Verizon Wireless example of compliance with 10 point font requirement as evidence of lack of burden on carriers).

76 Id. pp. 16-17.

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