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COMMUNICATIONS TELESYSTEMS INT'L v. CALIFORNIA PUC

June 19, 1998

COMMUNICATIONS TELESYSTEMS INTERNATIONAL, Plaintiff,
v.
CALIFORNIA PUBLIC UTILITIES COMMISSION, et al., Defendants.



The opinion of the court was delivered by: PATEL

ORDER

 Plaintiff Communications TeleSystems International ("CTS") brings this action against the California Public Utilities Commission and its Commissioners (collectively, "CPUC") for declaratory and injunctive relief. CTS alleges that the CPUC, through an administrative decision issued May 21, 1997, has violated its rights under the United States Constitution and federal law. The Greenlining Institute and the Latino Issues Forum (collectively "Greenlining") moved to intervene as defendants. The court granted this motion pursuant to an order filed February 4, 1998.

 Now before the court are defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Having reviewed the parties' arguments and submissions, the court now enters the following memorandum and order.

 BACKGROUND

 Plaintiff CTS is a California-based corporation providing intrastate, interstate and international telecommunications service. CTS is known as an interexchange carrier ("IXC") and provides long distance services to other IXCs as well as to various businesses.

 It is CTS' involvement in the provision of phone services to residential households that is at issue here. In 1993, CTS decided to target so-called "ethnic" households, or homes where the primary language of the residents is not English. CTS solicited these potential customers by telephone and, if a consumer elected to switch his or her service to CTS, an independent confirmation service would first call the customer to verify that a service switch had been authorized. In order to help retain its customer base, CTS also instituted a program called "Stay With Us." Under this optional program, a CTS customer agreed that if his or her service was switched to another carrier, CTS would notify him or her of the switch and that he or she was being switched back to CTS.

 Partially as a result of the Stay With Us program, CTS received a number of primary interexchange carrier ("PIC") complaints. These are reports from a local exchange carrier ("LEC") that a customer has complained that his or her long distance carrier was switched without authorization. Unauthorized PIC switching, which is known as "slamming" within the telecommunications industry and violates Cal. Pub. Util. Code § 2889.5, has been a focus of concern for the CPUC. The customer complaints against CTS alleged that CTS had slammed customers into service. In total, 56,000 consumers, mostly from ethnic communities, contacted their local phone company and complained that they had been switched without their consent.

 As a result of these complaints, the CPUC, a California state agency with broad authority to regulate investor-owned public utilities, began an investigation into CTS. *fn1" On February 23, 1996, the CPUC issued an Order Instituting Investigation and Order to Show Cause Why CTS' Certificate of Public Convenience and Necessity Should Not Be Revoked ("OII"). The OII summarized evidence of slamming presented by the CPUC's Safety and Enforcement Division, set hearing dates on the matter, and also prohibited CTS from engaging in certain activities, such as submitting PIC changes to local exchange carriers within California and transferring or selling customers.

 A number of evidentiary hearings were held on this matter. During seven days of hearings in front of an administrative law judge ("ALJ"), each of the parties presented testimony and conducted cross-examinations. *fn2" In addition, all parties filed opening and reply briefs. After the hearings, the ALJ issued two proposed orders, to which the parties filed initial and reply comments. The ALJ then issued a third proposed decision for limited comment. Finally after reviewing the record and the proposed decision, the CPUC filed its final decision on May 21, 1997, with an effective date of June 20, 1997.

 The decision found CTS liable for widespread violations of Cal. Pub. Util. Code § 2889.5. In addition, the decision imposed numerous sanctions against CTS including: 1) suspending CTS from providing intrastate service in California for three years; 2) permanently prohibiting CTS from submitting PIC changes directly to LECs; *fn3" 3) requiring CTS to pay $ 1,939,412 (its 1995 revenues from intrastate calls in California) as reparations; 4) fining CTS $ 19.6 million for its Stay With Us program; and 5) binding all successor entities to the sanctions imposed on CTS. On May 22, 1997, CTS filed a complaint in this court.

 On June 10, 1997, CTS filed an application for rehearing, which automatically stayed the decision's effective date for 60 days unless the CPUC acted on the application for rehearing prior to the 60 day period. Cal. Pub. Util. Code § 1733(a). The Decision on Rehearing was issued on October 22, 1997. All of CTS' allegations of error were reviewed, although only one of them was found to be meritorious. On November 21, 1997, CTS filed a petition for writ of review and a request for stay of the CPUC's decision with the California Supreme Court, pursuant to Cal. Pub. Util. Code § 1756. Both were denied on December 23, 1997.

 Plaintiff earlier filed a motion for preliminary injunction that is pending before this court. Although the parties did not address the abstention issue in writing at that time, the court stated at the hearing that it had some concerns relating to that issue. Before the court issued a decision on the motion for preliminary injunction, some jurisdictional arguments were made by the defendants through letters and supplemental briefing. The court decided that, if meritorious, defendants' arguments went to the threshold issue of whether the court should exercise jurisdiction over the action. Therefore, the court found it more appropriate for the parties to brief those issues, and for the court to rule on them, before any decision on the motion for a preliminary injunction was issued. Both the CPUC and Greenlining have since filed motions to dismiss.

 LEGAL STANDARDS

 I. 12(b)(1)

 Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court's jurisdiction over the subject matter of the complaint. A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either "facially" or "factually." Thornhill Publishing Co. v. General Telephone & Electrics Corp., 594 F.2d 730, 733 (9th Cir. 1979). When attacking the complaint for lack of subject matter jurisdiction on its face, all material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

 II. 12(b)(6)

 A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).

 On any other motion to dismiss under Rule 12(b), the court may consider matters outside the pleadings, but must accept as true all material allegations of the complaint and construe the complaint in favor of the plaintiff. See Fed. R. Civ. P. 12; Warth v. Seldin, 422 U.S. 490, 501-02, 95 S. Ct. 2197, 2206-07, 45 L. Ed. 2d 343 (1975) (considering the issue of standing).

 DISCUSSION

 I. Younger Abstention

 Defendants argue that this court should decline to hear this action under the doctrine of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Younger held that, absent extraordinary circumstances, federal courts should not enjoin pending state criminal prosecutions. Id. at 43-44. This doctrine has been extended to civil matters, including pending state administrative matters. See, e.g., Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 627, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986).

 The Ninth Circuit has held that "Younger abstention is appropriate if (1) there are ongoing state judicial proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceedings to raise federal questions." Dubinka v. Judges of Superior Court, 23 F.3d 218, 223 (9th Cir. 1994) (internal quotations and citations omitted). "When a case falls within the proscription of Younger, a district court must ...


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