3. Substantial Contribution to Resolution of Issues

Under Section 1802(h), a party may make a substantial contribution to a decision in one of several ways. It may offer a factual or legal contention upon which the Commission relied in making a decision, or it may advance a specific policy or procedural recommendation that the Administrative Law Judge or Commission adopted. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.³

3.1 Contribution to D.01-03-082

TURN's contribution here was multi-faceted. TURN proposed changes to accounting rules we had adopted in Resolution E-3527 when TURN determined that those rules were leading to results that were inconsistent with the "rate freeze" principle embodied in AB 1890. TURN explained that it filed a petition to modify the Resolution, and the petition was subsequently consolidated with the Rate Stabilization docket. The Commission issued D.01-03-082 in which it adopted TURN's proposed accounting changes across the board.

TURN also pursued the accounting issues in federal court litigation initiated by the utilities. The utilities argued that the filed rate doctrine prevented the Commission from interfering with utilities raising rates to collect increased wholesale procurement costs. TURN contended that its knowledge of the accounting rules, and the unintended results, enabled it to argue successfully to the court that the result sought by the utilities would preclude the Commission from fully considering the proposed corrections to the accounting rules. TURN concluded that absent its participation in the federal court litigation, the Commission would have been prevented from addressing the merits of the proposed accounting changes.

In D.01-03-082, the Commission also granted the utilities a rate increase of three cents/kWh, despite TURN's objections. TURN points out, however, that the Commission also imposed a significant limitation on the use of the funds collected, namely, that the funds could only be used for power costs incurred after the effective date of the decision.

We conclude that TURN, through its filings and petition consolidated with the applications in this docket, made a substantial contribution to D.01-03-082.

TURN's work in the federal courts, however, requires a more detailed analysis. In addition to making a "substantial contribution to the adoption, in whole or in part, of the commission's order or decision," Section 1803 also requires the intervenor to have incurred the expenses in activities in a Commission "proceeding." That section allows the Commission to award "reasonable advocate's fees, reasonable expert witness fees, and other reasonable costs of preparation for and participation in a hearing or proceeding . . ." "Proceeding" is defined in § 1802(f) as: "an application, complaint, or investigation, rulemaking, alternative dispute resolution procedures in lieu of formal proceedings as may be sponsored or endorsed by the commission, or other formal proceeding before the commission." Thus, a narrow reading of the statute would preclude an award of compensation under the statute for work performed in a non-Commission forum, such as federal court. For reasons we discuss below, such a reading is not appropriate in these circumstances.

TURN stated that its work before the federal courts was necessary to promote the interests of consumers by ensuring that the rate freeze was administered as intended by the Commission, rather than as the utilities sought in their federal court complaints. The utilities asked the federal court to order the Commission to immediately issue a decision passing through to ratepayers the cost of wholesale power procurement. This outcome would have prevented the Commission from ever reaching the issues raised by TURN in its petition for modification of Resolution E-3527. TURN participated in the federal proceeding first as amicus curiae, then as a permissive intervenor based on the court's determination that TURN's participation would be helpful to the court. TURN also stated that the first ground cited by the court in its decision denying the utilities' request for a preliminary injunction, namely, that such an injunction would have altered rather than preserved the status quo, had been argued only by TURN.

The Commission has previously allowed compensation for activities before the California Legislature where the legislative hearings pertained to a proceeding before the Commission: "We believe that time devoted to these hearings was properly chargeable for intervenor compensation. The procedural matters discussed and advice obtained were a part of the guidance that went into the eventual decision in this matter." (D.95-08-051, Re Alternative Regulatory Frameworks for Local Exchange Carriers, (1995) 61 CPUC2d 142, 148.)

Here, the relief requested by the utilities, if granted by the federal court, would have precluded this Commission from even considering the modifications to Resolution E-3527 sought by TURN. Protecting the Commission's authority to modify the Resolution was a necessary prerequisite to ensuring that the Commission could address the merits of the petition. As illustrated by the federal court's granting TURN permissive intervention and relying on TURN's arguments, TURN's participation in that forum protected the Commission's authority to act as it eventually did. In this way, TURN's federal court actions significantly contributed to "the eventual decision in this matter." Consequently, consistent with D.95-08-051, we will recognize TURN's expenses for participation in the federal court as part of its intervenor compensation claim.

We believe this outcome is consistent with the letter, spirit, and intent of the intervenor compensation statute. TURN's federal court litigation was an essential prerequisite, procedurally and substantively, to these consolidated proceedings and to the Commission decisions that are the subject of TURN's compensation request. As such, TURN could not practically or effectively advocate its position before the Commission without first defeating utility litigation intended to prevent the Commission from acting on the very points TURN was seeking to raise at the Commission.

3.2 Contribution to Other Decisions

In D.01-05-064, we addressed the revenue allocation and rate design issues created by the three-cent increase authorized by D.01-03-082. TURN stated that it substantially contributed to that decision because the Commission adopted TURN's positions on (1) definition of "equity" in rate design principles and goals, (2) revenue allocation methodology, (3) five-tier residential rate structure, and (4) non-residential rate spread, and several other smaller issues. We agree with TURN that its participation resulted in a far-reaching and substantial contribution to D.01-05-064. TURN also made substantial contributions to D.01-03-029, on the issue of the proper accounting for employee reductions and other cost-cutting measures, and to D.01-01-018, on the issue of utility shareholders bearing a share of the unanticipated costs of electricity procurement.