Pacific Bell Wireless, LLC v. Public Utilities Commn. of State

Full title: Pacific Bell Wireless, LLC v. Public Utilities Commn. of State,

Court: California Court of Appeals, Fourth District, Third Division

Date published: Jul 10, 2006

No. G034991 (Cal. Ct. App. Jul. 10, 2006)

Opinion

PACIFIC BELL WIRELESS, LLC, Petitioner, v. PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, Respondent UTILITY CONSUMERS’ ACTION NETWORK, Real Party in Interest. G034991 California Court of Appeal, Fourth District, Third Division July 10, 2006

Cal. P.U.C. Dec. Nos. 04-09-062, 04-12-058

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT

FYBEL, J.

It is ordered that the opinion filed herein on June 20, 2006, be modified as follows:

1. On page 7, footnote 2, add the following sentences at the end of the footnote, following the citation ending “. . . 2004 Cal.P.U.C. Lexis 240 at p. *267.)�:

In March 2006, the Commission revised general order No. 168, which no longer mandates a particular grace period for early termination fees. Cingular, however, has continued to permit its customers a 30‑day grace period. The change in the Commission’s order has no impact on our decision.

2. On page 18, at the end of the paragraph that continues from page 17, after the last sentence ending “47 United States Code section 332(c)(3)(A),� add as footnote 6 the following footnote, which will require renumbering of all subsequent

⁶ In Cellco Partnership v. Hatch (8th Cir. 2005) 431 F.3d 1077, the Eighth Circuit Court of Appeals analyzed a Minnesota statute prohibiting wireless providers from making any changes in the terms and conditions of their contracts with subscribers “that ‘could result’ in increased rates or an extended contract term, unless they first obtain affirmative written or oral consent from the subscriber. [Citations.]â€� (Id. at p. 1079.) The Eighth Circuit concluded this statute constituted rate regulation and was therefore preempted by 47 United States Code section 332(c)(3)(A) because “[t]he requirement . . . that consumers consent to any substantive change prevents providers from raising rates for a period of time, and thus fixes the rates.â€� (Cellco Partnership v. Hatch, supra, 431 F.3d at p. 1082.) Cellco Partnership v. Hatch is not on point with the present case.

3. On page 33, after the second full paragraph beginning “Therefore, we must reject both of these arguments,� add the following new paragraph:

In its petition for rehearing, Cingular argues for the first time the Commission only has power to award reparations against a public utility for unreasonable, excessive, or discriminatory rates, and our conclusion that the Commission’s orders were not rate regulation and were not preempted by 47 United States Code section 332(c)(3)(A) is thus inconsistent with our affirmance of the reparations order. Arguments cannot be raised for the first time in a petition for rehearing. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Even if we were to consider Cingular’s argument, we would reject it. Section 734 may apply in any case in which “the commission has found, after investigation, that the public utility has charged an unreasonable, excessive, or discriminatory amount therefor in violation of any of the provisions of this part.� (Italics added.) The language of the statute is broad, and applies to the entirety of the Public Utilities Act, not only to article 2 relating to rates.

These modifications do not effect a change in the judgment. The petition for rehearing is DENIED.

WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.