Decision 02-02-027 February 7, 2002

Before The Public Utilities Commission Of The State Of California

The Utility Consumers' Action Network, Complainant, vs. Pacific Bell (U 1001 C), Defendant.	Case 98-04-004 (Filed April 6, 1998)
And Related Matters.	Case 98-06-003 (Filed June 1, 1998) Case 98-06-027 (Filed June 8, 1998) Case 98-06-049 (Filed June 24, 1998) Investigation 90-02-047 (Filed February 23, 1990)

ORDER GRANTING LIMITED REHEARING

AND MODIFYING DECISION 01-09-058

I. INTRODUCTION

Decision (D.) 01-09-058 is a final decision in a complaint proceeding against Pacific Bell (Pacific) regarding its practices for marketing optional services to residential customers. The proceeding consolidated complaints brought by the Utility Consumers' Action Network (UCAN), the Greenlining Institute and the Latino Issues Forum (Greenlining), and the Telecommunications Union, California Local 103, International Federation of Professional and Technical Engineers, AFL-CIO (TIU).

Applications for rehearing of D.01-09-058 were filed by the Communication Workers of America (CWA) (October 26, 2001), Greenlining (November 2, 2001), and Pacific Bell (November 5, 2001). CWA asserts that the 5% limit on sales-volume incentive compensation is preempted by federal law. Greenlining contends that the Commission abused its discretion in declining to adjudicate Greenlining's Business and Professions Code claims and in setting the fine too low.

Pacific Bell challenges all aspects of the decision, including the remedial measures ordered, the conclusions that Pacific Bell violated various laws, and the imposition of penalties. Pacific argues that many of the factual findings are not supported by the evidence and that the legal conclusions are in error. Pacific also contends that its First Amendment rights are violated by the decision's limitations on Pacific's commercial speech. Finally, Pacific requests that the Commission allow oral argument on rehearing pursuant to Rule 86.3 of the Commission's Rules of Practice and Procedure.

We have reviewed each and every allegation of error raised in the applications for rehearing and are of the opinion that limited rehearing should be granted on (1) the penalty period and (2) the 5% limit on sales-volume incentive compensation. We will modify the decision to end the penalty period when the record in this case closed, which was March 11, 1999.¹ We will eliminate the incentive compensation cap, but will hold further proceedings to implement substitute methods for ensuring compliance with our decision. We will leave it up to the ALJ to decide the most appropriate procedural mechanism for accomplishing this, e.g., hearings, workshops, or written comments from parties. We will also modify the decision to make a number of corrections and additions as set forth in this order. Finally, we will deny Pacific's request for oral argument. We do not believe that Pacific has demonstrated that oral argument is warranted pursuant to Rule 86.3 of the Commission's Rules of Practice and Procedure.