I. BACKGROUND

After DIVCA became law, we conducted the first phase of our proceedings to implement the statute, which resulted in the "Phase I Decision," Procedures to Implement DIVCA [D.07-03-014] (2007) __ Cal.P.U.C.3d __, as modified by Modifying D.07-03-014 and Denying Rehearing [D.07-11-049] (2007) __ Cal.P.U.C.3d __.² The Phase I Decision outlined the nature of the authority DIVCA conferred on us, and adopted our General Order No. 169 ("GO 169"), which contains a series of rules implementing the statute.

Some parties challenged the Phase I Decision by filing applications for rehearing and we denied rehearing in Modifying D.07-03-014 and Denying Rehearing, supra. Subsequently, several parties filed petitions for writ of review in the California Court of Appeal. The Court summarily denied these several writ petitions.³ Although the summary denial of a petition for writ of review does not have the effect of stare decisis, it is, nevertheless, a "decision on the merits" and has "the conclusive effect of res judicata ...." (People v. Western Airlines, Inc. (1954) 43 Cal.2d 621, 630.) As a result, the issues resolved in the Phase I Decision are now "conclusive" here. (Pub. Util. Code, § 1709.) Further, no court now has jurisdiction to hear "a cause of action arising out of" the Phase I Decision because that the statutory deadline for challenging that decision has passed. (Pub. Util. Code, § 1731, subd. (b)(1).)

Both the issues raised in the applications for rehearing we are reviewing today were addressed in the Phase I Decision. That decision held that the intervenor compensation provisions of the Public Utilities Act do not apply to proceedings under DIVCA. (Cf., Pub. Util. Code, § 1801-1822.) After considering submissions made by The Utility Reform Network ("TURN") and the Greenlining Institute ("Greenlining"), the Phase I Decision held that we lack statutory authority to award intervenor compensation because the relevant "statutes limit the intervenor compensation program to proceedings involving utilities." (Phase I Decision at p. 208.) DIVCA specifically states that the entities covered by that act are not public utilities. (E.g., Pub. Util. Code,
§ 5810, subd. (a)(3).)

The Phase I Decision also addressed the type of information we would need in order to exercise the regulatory and enforcement authority DIVCA had conferred upon this Commission. (See Phase I Decision, at pp. 127, 146-147, 284.)⁴ The Phase I Decision determined that our authority included the ability to obtain from franchise holders "information necessary for the enforcement of specific DIVCA provisions ...." (Id. at p. 152.) The Phase I Decision determined that DIVCA's public disclosure requirements-set forth in sections 5920 and 5960-could be "tailor[ed]" to provide much of the information we needed to enforce DIVCA. (Id. at p. 178.) However, that decision also held that we had further authority under DIVCA to require franchise holders to provide additional information, because we had "authority to take action as necessary" to enforce certain specific requirements set forth in DIVCA. (Id. at pp. 152, 174 (describing extent of enforcement authority).)

The Phase I Decision adopted two criteria that we would use to determine when we should exercise this authority to obtain additional information. We held that we would only require the reporting of additional information if that information was:
(i) "truly necessary" for (ii) "the enforcement of specific DIVCA provisions under our regulatory authority." (Phase I Decision at p. 152.) The Phase I Decision also applied these criteria. For example, we found that certain information regarding community centers should be reported, and included rules regarding this information in GO 169. (E.g., Phase I Decision at pp. 150, 152-153; G.O. 169, § VII. D.) The Phase I Decision also included within GO 169 section VII.G which explicitly "reserves the authority to require additional reports" from franchise holders.

In addition, the Phase I Decision found that further consideration should be given to this issue. In the second phase of these proceedings we decided to determine whether any other information met our criteria and, therefore, should be obtained under our regulatory and enforcement authority. (Phase I Decision at p. 147.) We ordered that the Phase II proceedings take up this question and "consider whether the Commission needs additional, more detailed ... information for enforcement of specific DIVCA provisions." (Id. at p. 284.)

After we conducted the second phase of proceedings, we issued the "Phase II Decision" Resolving Issues in Phase II [D.07-10-013] (2007) __ Cal.P.U.C.3d __. Among other things, the Phase II Decision determined that franchise holders must report how many video customers they have in each census tract where they provide video services.⁵ This information is referred to as video "subscribership data." The Phase II Decision determined that this information should be reported because it met the two criteria set forth in the Phase I Decision: we needed video subscribership data, and that data related to DIVCA's antidiscrimination provisions. (Phase II Decision at p. 44 (Finding of Fact 4).) Also relevant here, the Phase II Decision followed the Phase I Decision's holding that intervenor compensation will not be awarded for participation in proceedings related to DIVCA. (Phase II Decision at p. 49.)

Three parties filed applications for rehearing of the Phase II Decision. TURN filed an application for rehearing asserting that the determination not to award intervenor compensation was in error, incorporating by reference claims of error TURN made against the Phase I Decision. AT&T California ("AT&T") and Verizon California, Inc. ("Verizon") filed applications alleging that we do not have authority to obtain subscribership data from franchise holders. These two parties also disagree with our finding that we needed subscribership data to enforce DIVCA's antidiscrimination provisions.

Responses to the rehearing applications were filed by the Division of Ratepayer Advocates ("DRA"), the California Cable and Telecommunications Association ("CCTA"), and AT&T.⁶ DRA's response asserts that the Phase I Decision definitively resolved the question of our authority to obtain information from franchise holders, and that AT&T's and Verizon's rehearing applications are statutorily barred. DRA also contends that the requirement to provide subscribership data is consistent with DIVCA's provisions.

Similarly, AT&T's response claims that TURN's rehearing application is statutorily barred because questions of intervenor compensation were resolved in the Phase I Decision. CCTA argues that TURN's claims are invalid as well. CCTA further states that Verizon's rehearing application correctly describes DIVCA's reporting requirements. CCTA also states its agreement with the view that subscribership data is not needed to enforce DIVCA's antidiscrimination provisions.

² The Phase I Decision was further modified by Opinion Modifying D. 07-03-014 [D.07-04-034] __
Cal. P.U.C.3d __, which corrected the form of the Video Franchise Certificate. In addition, Decision Amending General Order 169 [D.08-07-007] (2008) __ Cal.P.U.C.3d __ addressed deadlines, bonding requirements, and the "broadband speed tiers" used in reporting requirements.

³ (TURN v. Public Utilities Com. (May 8, 2008, A120066) [nonpub. order]; City of Oakland v. Public Utilities Com. (May 8, 2008, A119929) [nonpub. order] City of Carlsbad v. Public Utilities Com. (May 8, 2008, A 120527) [nonpub. order].)

⁴ The Phase I Decision is unpublished, and this order cites to the page numbers in the official version, which is contained in this Commission's formal files and is made available in "PDF" format on our web site. In places, the Phase II Decision cites to the "WORD" version of the Phase I Decision. Consequently, some page number references given in the Phase II Decision will not match the page numbers cited to in this order.

⁵ The Phase II Decision also: (i) established "safe harbor" requirements for "smaller" franchise holders, (ii) amended our Rules of Practice and Procedure, (iii) corrected the attachments to the Phase I Decision, and (iv) determined to address the renewal of video franchises in 2011. Following the issuance of the Phase II Decision, we extended the funding mechanism for our regulatory costs through fiscal year 2012-2013 in Decision Modifying D.07-10-014 [D.09-04-011] (2009) __ Cal.P.U.C.3d. __.

⁶ AT&T's response states, at page 1, that a rehearing application was filed by Greenlining, but the formal record of this proceeding does not contain such an application for rehearing.