7. Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and Dorothy Duda is the Administrative Law Judge in this proceeding.
Findings of Fact
1. Applicant is a Nevada corporation authorized to provide interexchange telecommunications services within California.
2. Applicant is a wholly owned subsidiary of 360 Corp.
3. On October 18, 2002, Applicant filed A.02-10-022 for authority to transfer control of its public utility business in California pursuant to reorganization plans ordered by the U.S. Bankruptcy Court.
4. The transfer of control was completed on November 12, 2002, prior to the Commission acting on this application.
5. Under the plans for reorganization, 360 Corp. became Applicant's ultimate parent company and shares of 360 Corp. were distributed to creditors, employees, and outside directors.
6. Pub. Util. Code § 854(a) requires Commission authorization to transfer control of a public utility. Any transfer of control without Commission authorization is void under the statute.
7. There will be will be no changes to Applicant's terms or conditions of service or its management as a result of the transfer of control.
8. There were no protests to A.02-10-022.
9. Pub. Util. Code § 2107 provides the Commission with authority to impose a penalty of between $500 and $20,000 for violations of the Pub. Util. Code.
10. In D.98-12-075, the Commission adopted the following criteria for determining the amount of a fine: (i) the severity of the offense, (ii) the conduct of the utility, (iii) the financial resources of the utility, (iv) the totality of the circumstances, and (v) the role of precedent.
11. Applicant's failure to comply with § 854(a) did not harm others and did not significantly benefit Applicant.
12. Applicant has adequate financial resources to pay a fine for its violation.
13. Applicant has not filed the required Public Program Surcharge Transmittal Reports with the Commission.
1. This is a ratesetting proceeding and no hearing is necessary.
2. A.02-10-022 should be approved on a prospective basis because it is not adverse to the public interest.
3. Applicant violated § 854(a) by transferring indirect control of its public utility operations without Commission authorization.
4. Pursuant to §2107, Applicant should be fined for violating § 854(a). The amount of the fine should be based on the criteria set forth in D.98-12-075.
5. Applicants' violation of § 854(a) was not particularly an egregious offense.
6. The public interest was not significantly harmed by Applicant's violation of § 854(a).
7. The application of the criteria in D.98-12-075 to the facts of this case indicates that Applicant should pay a fine of $2,500 for violating § 854(a).
8. It is necessary to fine Applicant for violating § 854(a) in order to deter future violations of § 854(a).
9. Applicant's request for confidential treatment of the financial information contained in its September 5, 2003 supplemental filing should be granted for two years.
10. The following order should be effective immediately.
IT IS ORDERED that:
1. Application (A.) 02-10-022 for authority under Pub. Util. Code § 854 for 360networks (USA) inc. (Applicant) to transfer control of its public utility business is granted to the extent it requests authority effective as of the date of this order. A.02-10-022 is denied to the extent that it requests retroactive authority for the transfer of control.
2. Applicant shall notify the Director of the Commission's Telecommunications Division in writing of the transfer of control, as authorized herein, within 10 days of this order. A true copy of the instrument(s) of transfer shall be attached to the notification.
3. Applicant shall pay a fine in the amount of $2,500 for violating Pub. Util. Code § 854(a). Applicant shall pay the fine within 20 days from the effective date of this order by tendering to the Fiscal Office of the California Public Utilities Commission a check in the amount of $2,500 made payable to the State of California General Fund.
4. Applicant's motion to supplement the record is granted.
5. Applicant's request to file its financial information under seal is granted for two years from the effective date of this decision. During that period the information shall not be made accessible or disclosed to anyone other than the Commission staff except on the further order or ruling of the Commission, the Assigned Commissioner, the Assigned Administrative Law Judge (ALJ), or the ALJ then designated as Law and Motion Judge.
6. If the Applicant believes that further protection of the information kept under seal is needed, it may file a motion stating the justification for further withholding of the information from public inspection, or for such other relief as needed.
7. Within 30 days of this order, Applicant shall file its delinquent Public Program Surcharge Transmittal Reports with the Director of the Telecommunications Division and pay any applicable surcharges that it owes based on those reports.
8. A.02-10-022 is closed.
This order is effective today.
Dated _____________________, at San Francisco, California.
