3. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, we look at whether the Commission adopted one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer. (§ 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party. (§§ 1801.3(f) and 1802.5.)
As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.
In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.5
With this guidance in mind, we turn to the claimed contributions SFCP made to the proceeding.
SFCP contends it made a substantial contribution to the proceeding demonstrated by the adoption of a settlement agreement between PG&E and SFCP that resolved administrative and analytical issues associated with the SCAP and rejection of the Small Commercial Load Aggregation Pilot (SCLAP) as advocated in testimony by SFCP.6 SFCP asserts that it submitted evidence and testimony in the proceeding, which formed the basis for settlement negotiations. SFCP maintains it brought unique insights into other important proceeding elements as a result of its representation of small- and medium-sized commercial customers. SFCP contends that the time spent advocating for SCAP continuation has already been excluded from this compensation request.
SFCP is correct that the Commission found the settlement reasonable and adopted it in D.09-08-027. However, SFCP is not eligible for compensation for its efforts to continue the SCAP program or for its efforts to prevent PG&E from replacing SCAP with SCLAP. Although an ALJ Ruling found SFCP eligible as a customer, that ruling is a preliminary ruling addressing solely whether SFCP would be eligible for an award of compensation. The record since developed in this proceeding and other Commission decisions indicates, however, that SCAP is now an existing program that SFCP implements under contract to PG&E. D.09-08-027 continued SCAP and authorized PG&E to pay SFCP additional funds for program implementation. SFCP benefited materially and directly from this portion of D.09-08-027. SFCP acted in its own self interest when it advocated for continuing the program.
The Commission has held that the Legislature intended the Commission proceedings to grant "customer" status "only to parties (or their representatives) whose self interests and participation in the proceeding arise directly from their interests as customers."7 SFCP's advocacy put it in the position of being more of a contractor or consultant than a customer.
Although the majority of SFCP's participation was related to SCAP, SFCP may nevertheless qualify for compensation for its work on other aspects of the proceeding. SFCP's positions with respect to adoption of a municipal pump load, providing technical incentives in this pump load pilot, consolidation of multiple meters, and replacement of APX, Inc. were not adopted by the Commission. However, SFCP actively participated in the development of marketing, education and outreach budgets and strategies and made contributions to the discussion of some aspects of the demand response program funding and administration for which it should receive compensation.
5 D.98-04-059, 79 CPUC2d 628 at 653.
6 D.06-03-024 adopted a settlement agreement that included approval of the SCAP program for 2006-2008. SFCP received $500,000 in funds for marketing and expenses for enrolling small and medium commercial customers in the Demand Reserves Partnership Program. Subsequently, in D.06-11-049, SFCP was authorized to increase participation for the program to five megawatts of load. Under this program, SFCP enrolled small and medium commercial customers in PG&E's Capacity Bidding Program.
7 D.96-09-040 and D.92-04-051.
