6. CSD Recommendations on Sanctions
CSD argues that a preponderance of the evidence shows that PFL in using the simplified registration process instead of an application violated Rule 1 of the Rules of Practice and Procedure ("never to mislead the Commission or its staff by an artifice or false statement of fact or law") and Rule 18 (requirements for filing an application for a Certificate of Public Convenience and Necessity). In starting construction before the Commission had conducted CEQA review, PFL is alleged to have violated Rule 17.1. Rule 17.1 sets forth the requirements for preparation and submission of environmental impact reports. CSD also alleges a violation of Pub. Util. Code § 702, which requires every public utility to comply with the orders, decisions and rules of the Commission.
Under Pub. Util. Code § 2107, the statutory range of Commission penalties is from $500 to $20,000 for each offense. Each day of violation is considered a separate violation. (Pub. Util. Code § 2108.) CSD thus calculates that the penalty for constructing without authority for 216 days from December 2, 1998 to July 6, 1999, could range from $108,000 to $4,320,000.
The Commission has established criteria for determining the size of fines in Re Standards of Conduct (1998) D.98-12-075, 190 P.U.R.4th 6. In general, the Commission considers severity of the offense, the conduct of the utility, the financial resources of the utility, and the totality of the circumstances in the particular case. In addition to these criteria, CSD suggests that the Commission may consider factors in mitigation of a penalty, including the lack of a clear policy in 1998 for dealing with environmental review of telecommunications carriers.
Taking all of these factors into account, CSD recommends a fine in the middle to lower end of the statutory range, or from $1 million to $2 million, depending on the degree of mitigation that the Commission deems appropriate.
