ALJ/JPO/tcg Date of Issuance 8/13/2010
Decision 10-08-019 August 12, 2010
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Petition of The Utility Reform Network to Adopt, Amend, or Repeal a Regulation Pursuant to Pub. Util. Code § 1708.5 Related to Arrearage Management and Shutoff Prevention for Residential Customers of the Major Jurisdictional Electric and Gas Utilities. |
Petition 09-06-022 (Filed June 19, 2009) |
DECISION AWARDING INTERVENOR COMPENSATION
TO THE UTILITY REFORM NETWORK
FOR SUBSTANTIAL CONTRIBUTION TO DECISION 10-03-006
Claimant: The Utility Reform Network (TURN) |
For substantial contribution to D.10-03-006 |
Claimed ($): $51,160 |
Awarded ($): $48,164 (6% reduction) |
Assigned Commissioner: John Bohn |
Assigned ALJ: Jeffrey P. O'Donnell |
PART I: PROCEDURAL ISSUES
A. Brief Description of Decision:
|
In June 2009, TURN filed a petition asking the Commission to initiate a rulemaking or investigation to address arrearage management and shutoff prevention for residential customers of the major jurisdictional electric and natural gas utilities. The Commission issued R.10-02-005 on February 4, 2010, to address policy changes to reduce residential gas and electric service disconnections. The Commission then issued a decision denying TURN's petition for rulemaking, finding it moot in light of R.10-02-005. |
B. Claimant must satisfy intervenor compensation requirements set forth in Public Utilities Code Sections 1801-1812:
Claimant |
CPUC Verified | |
Timely filing of notice of intent to claim compensation (§ 1804(a)): | ||
1. Date of Prehearing Conference: |
N/A |
Yes |
2. Other Specified Date for NOI: |
August 19, 2009 |
Yes |
3. Date NOI Filed: |
April 16, 2010 (See Section C, comment 3 below) |
Yes |
4. Was the notice of intent timely filed? |
No | |
Showing of customer or customer-related status (§ 1802(b)): | ||
5 Based on ALJ ruling issued in proceeding number: |
P.09-06-022 |
Yes |
6. Date of ALJ ruling: |
May 14, 2010 |
Yes |
7. Based on another CPUC determination (specify): |
||
8. Has the claimant demonstrated customer or customer-related status? |
Yes | |
Showing of "significant financial hardship" (§ 1802(g)): | ||
9. Based on ALJ ruling issued in proceeding number: |
P.09-06-022 |
Yes |
10. Date of ALJ ruling: |
May 14, 2010 |
Yes |
11. Based on another CPUC determination (specify): |
||
12. 12. Has the claimant demonstrated significant financial hardship? |
Yes | |
Timely request for compensation (§ 1804(c)): | ||
13. Identify Final Decision |
D.10-03-006 |
Yes |
14. Date of Issuance of Final Decision: |
March 12, 2010 |
Yes |
15. File date of compensation request: |
April 16, 2010 |
Yes |
16. Was the request for compensation timely? |
Yes | |
C. Additional Comments on Part I:
# |
Claimant |
CPUC |
Comment |
1 |
X |
No Prehearing Conference was held in this proceeding. | |
2 |
X |
Pursuant to Rule 17.1(a)(3) of the CPUC's Rules of Practice of Procedure, "A notice of intent to claim compensation may be filed ... in a petition for rulemaking, any time after the petition is filed until 30 days after the time for filing responses. If the petitioner intends to request compensation, the petition itself may include a notice of intent. If a prehearing conference is later held, the notice may be filed pursuant to subsection (a)(1)." | |
3 |
X |
Due to inadvertent and excusable error, TURN failed to comply with the specific provision in Rule 17.1(a)(3) regarding the filing of NOIs in a petition for rulemaking. TURN has never filed a petition for rulemaking before the instant petition, and therefore has no prior experience filing a NOI for a TURN-initiated petition for rulemaking. TURN's attorney approached the NOI requirement for this proceeding in a manner consistent with our approach in another petition-initiated proceeding in which TURN was active, but as a party responding to a petition. On that basis TURN presumed that absent a prehearing conference or a determination that hearings are not needed, we would be able to seek recovery of hours devoted to petition-related work in the follow-on rulemaking. (See D.08-11-055, awarding compensation for TURN's work in the rulemaking to re-open direct access (R.07-05-025), including the 2006 and early 2007 hours that preceded the order instituting the rulemaking.) Had there been a prehearing conference on TURN's petition, or a ruling that included a preliminary determination as to the need for hearings, TURN would have responded as we typically do to these more typical triggers of NOI deadlines. Absent such a trigger, when the CPUC issued the final decision closing this docket without ever holding a prehearing conference, TURN intended to file our NOI concurrently with this request for compensation (again, consistent with our past practice in non-petition proceedings). On April 14, 2010, TURN discovered our omission in failing to take account of Rule 17.1(a)(3). TURN is submitting our late-filed NOI today, as soon as practicable after our discovery. TURN respectfully requests that the Commission accept our late-filed NOI, given our inexperience in filing petitions for rulemaking, our prompt notification of the Commission of this error, our prompt attempt at corrective action, and our substantial contributions to D.10-03-006. Should the Commission determine that it will not consider TURN's request for compensation in this proceeding because the NOI is untimely, TURN requests that the Commission do so without prejudice to TURN seeking to include these hours and expenses in a subsequent Request for Compensation submitted in R.10-02-005. As noted above, the Commission has previously awarded compensation for petition-related work in a compensation decision issued in the follow-on rulemaking, even where no NOI was filed while the petition itself was pending. (D.08-11-055, in R.07-05-025). TURN should have the opportunity to seek a similar outcome for the petition-related work at issue here, even if the request is made as part of the follow-on rulemaking. | |
X |
The ALJ ruling issued on May 14, 2010 in this proceeding addresses the untimely filing of TURN's NOI. In response to TURN's claim that it had never filed a petition for rulemaking before, and, therefore had no experience with filing an NOI in such a proceeding, the ruling finds that "TURN is an experienced practitioner before the Commission. As such, it should be well aware of the Rules. In preparation of P.09-06-022, it should have examined the applicable Rules more closely, but did not do so. TURN's failure constitutes grounds for rejecting the NOI. However, its error was unintentional and it moved promptly to correct the error when it was discovered. Since no party would be adversely affected by doing so, the NOI is accepted. This is a one time exception. TURN is admonished to pay closer attention to the Commission's Rules, especially when it is pursuing something it has not done before."1 |
PART II: SUBSTANTIAL CONTRIBUTION
Claimant's description of its claimed contribution to the final decision:
Contribution |
Citation to Decision or Record |
Showing Accepted by CPUC |
1. TURN demonstrated that the Commission should open a rulemaking to consider changes to utility practices impacting residential customer arrearages and service termination for nonpayment. |
* TURN Petition, passim; TURN Reply to Responses, passim (addressing the need for and timeliness of Commission action to prevent shutoffs); TURN Comments on PD, passim (arguing that the PD erred in denying TURN's petition on the grounds that Commission action was unwarranted). TURN also urged the Commission to open a new rulemaking on shutoff prevention at the Commission's En Banc on December 16, 2009, and at the follow-up workshop held on January 5, 2010. * D.10-03-006, p. 5 ("As a result of the comments filed on the PD, the comments received at the December 16, 2009 en banc hearing and the January 5, 2010 workshop, and the Commission's initiation of the above rulemaking [R.10-02-005], the PD's holding (denial of the petition) is unchanged, but the rationale for doing so is revised as indicated above." ... "Because of the Commission's initiation of the above rulemaking, TURN's petition is moot and should be denied.") * R.10-02-005, pp. 3-5 (describing the origin of R.10-02-005, including TURN's Petition 09-06-022 and the subsequent advocacy by TURN, the Division of Ratepayer Advocates, and other consumer groups in late 2009 at the Commission's En Banc on shutoffs, and in early 2010 at the Commission's "best practices" workshop on avoiding shutoffs). |
Yes |
2. TURN demonstrated that the Commission should consider changes to utility practices regarding payment plans to help customers struggling to keep up with bills avoid service termination. |
* TURN Petition, pp. 12-16; TURN Reply to Responses, pp. 3-4; TURN Comments on PD, pp. 8-10. TURN also addressed the need for affordable payment plans at the Commission's En Banc on December 16, 2009 and at the follow-up workshop on January 5, 2010. * D.10-03-006, pp. 3-5 (addressing the Commission's interim order in R.10-02-005 regarding payment plans); p. 5 ("Because of the Commission's initiation of the above rulemaking, TURN's petition is moot and should be denied."). * R.10-02-005, pp. 5-6 ("Following the en banc and workshop, the Commission has carefully considered the exchange of information between the utilities and the consumer advocates and has determined that there are some interim practices the Commission can implement immediately that are aimed at addressing the Commission's primary focus: having the utilities work with their customers to address bill arrearages before disconnection." ... (including interim rules regarding required customer notification of minimum payment plan options)). |
Yes |
3. TURN demonstrated that the Commission should consider changes to utility practices regarding customer deposits to reduce the financial burden from deposits on customers at risk of service termination, as well as customers who have already been shut-off for nonpayment. |
* TURN Petition, pp. 16-18; TURN Comments on PD, pp. 12-15. TURN also advocated the suspension of late-payment deposits at the Commission's En Banc on December 16, 2009, as well as at the "best practices" workshop held on January 5, 2010. * D.10-03-006, pp. 3-5 (addressing the Commission's interim order in R.10-02-005 regarding customer deposits); p. 5 ("Because of the Commission's initiation of the above rulemaking, TURN's petition is moot and should be denied."). * R.10-02-005, pp. 5-6 ("Following the en banc and workshop, the Commission has carefully considered the exchange of information between the utilities and the consumer advocates and has determined that there are some interim practices the Commission can implement immediately that are aimed at addressing the Commission's primary focus: having the utilities work with their customers to address bill arrearages before disconnection." ... (including interim rules suspending late-payment and post-shutoff customer deposits)). |
Yes |
4. TURN demonstrated that the Commission should consider the relationship between utility credit and collection policies and the uncollectibles allowance provided to each utility as part of its general rate case. |
* TURN Petition, pp. 18-19. * D.10-03-006, p. 5 ("Because of the Commission's initiation of the above rulemaking [R.10-02-005], TURN's petition is moot and should be denied."). * R.10-02-005, p. 6 (inviting the utilities to track incremental uncollectibles purportedly associated with the more relaxed payment plan and deposit policies required in the interim order, and soliciting comments from parties about the appropriateness of and methods for incremental cost recovery). |
Yes |
5. TURN demonstrated that the Commission should consider requiring changes to utility practices regarding customer outreach and education about the low-income energy efficiency program and the energy efficiency program, so as to link those bill reduction programs with an overall bill affordability strategy. |
* TURN Petition, pp. 14-15; TURN Comments on PD, pp. 10-12. * D.10-03-006, p. 5 ("Because of the Commission's initiation of the above rulemaking [R.10-02-005], TURN's petition is moot and should be denied."). * R.10-02-005, p. 8 (soliciting recommendations from parties about customer outreach and education regarding energy efficiency (and other bill reduction / management programs) as part of an overall strategy to help customers afford their bills and avoid disconnection). |
Yes |
A. Duplication of Effort (§§ 1801.3(f) & 1802.5):
Claimant |
CPUC Verified | |
a. Was DRA a party to the proceeding? |
Yes |
Yes |
b. Were there other parties to the proceeding? |
Yes |
Yes |
c. If so, provide name of other parties: Disability Rights Advocates, Greenlining Institute, Utility Consumers Action Network, National Consumer Law Center, Pacific Gas and Electric Company, San Diego Gas and Electric Company / Southern California Gas Company, Southern California Edison Company. |
Yes | |
d. Claimant's description of how it coordinated with DRA and other parties to avoid duplication or how claimant's participation supplemented, complemented, or contributed to that of another party: TURN, as the sole petitioner, initiated the instant proceeding, so TURN's participation was inherently unique. TURN raised all of the issues presented in P.09-06-022. DRA and the other consumer groups complemented TURN's showing by supporting TURN's petition and proffering specific additional recommendations for the Commission's consideration. Prior to filing P.09-06-022, TURN discussed a draft of our petition with DRA and the other consumer groups who ultimately participated in P.09-06-022 to solicit input and resolve any concerns. Through these efforts, TURN was able to minimize potential areas of dispute and ensure that the consumer groups would be closely coordinated from the outset of the proceeding. TURN additionally coordinated closely with DRA and Greenlining Institute in preparing for the En Banc, as well as in meeting with Commissioners and their advisors about the need for Commission action to reduce shutoffs. For these reasons, TURN submits that there was no undue duplication between TURN's participation and that of DRA and the other consumer groups, and that any duplication served to supplement, complement or contribute to the showing of other consumer groups in the proceeding. |
Yes | |
PART III: REASONABLENESS OF REQUESTED COMPENSATION
A. General Claim of Reasonableness (§§ 1801 & 1806):
Claimant's description of how claimant's participation bore a reasonable relationship with benefits realized through claimant's participation |
CPUC Verified |
Given the nature of the issues presented, it is not easy to identify precise monetary benefits to ratepayers from TURN's work here. TURN's advocacy in P.09-06-022, and the resulting Commission actions in R.10-02-005, referenced in D.10-03-006, addressed policy matters rather than specific rates or disputes over particular dollar amounts. Although precise monetary benefits to ratepayers are hard to quantify, TURN's efforts that impacted R.10-02-005, referenced in D.10-03-006, will afford residential customers greatly expanded opportunities to avoid service termination and continue receiving gas and electricity service. Because utility shutoffs trigger all kinds of financial impacts, including service reinstatement costs, food spoilage and replacement costs, and possibly eviction, in addition to a host of health and safety issues, policies that assist consumers in being able to pay their bills, manage arrearages, and avoid shutoffs bestow enormous benefits upon those Californians most in need of assistance. The Commission should treat this compensation request as it has treated similar past requests with regard to the difficulty of establishing specific monetary benefits associated with TURN's participation2 and find that TURN's efforts have been productive. |
After the reductions we make to this claim, the remainder of TURN's hours are reasonable and should be compen-sated. |
B. Specific Claim:
Claimed |
CPUC Award | |||||||||
ATTORNEY AND ADVOCATE FEES | ||||||||||
Item |
Year |
Hours |
Rate $ |
Basis for Rate* |
Total $ |
Year |
Hours |
Rate $ |
Total $ | |
H. Goodson |
2009 |
151.75 |
280 |
D.09-10-051 |
42,490 |
2009 |
141.05 |
280 |
39,494 | |
H. Goodson |
2010 |
9.00 |
280 |
Adopted here (ALJ-247) |
2,520 |
2010 |
9.00 |
280 |
2,520 | |
R. Finkelstein |
2009 |
9.75 |
470 |
D.09-08-025 |
4,582.50 |
2009 |
9.75 |
470 |
4,582.50 | |
R. Finkelstein |
2010 |
0.75 |
470 |
D.10-06-046 |
352.50 |
2010 |
0.75 |
470 |
352.50 | |
Subtotal: $49,945 |
Subtotal: $46,949 | |||||||||
INTERVENOR COMPENSATION CLAIM PREPARATION ** | ||||||||||
Item |
Year |
Hours |
Rate $ |
Basis for Rate* |
Total $ |
Year |
Hours |
Rate $ |
Total $ | |
H. Goodson |
2010 |
7.00 |
140 |
½ hourly rate adopted here ( ALJ-247) |
980 |
2010 |
7.00 |
140 |
980 | |
R. Finkelstein |
2010 |
1.00 |
235 |
½ hourly rate adopted in D.10-06-046 |
235 |
2010 |
1.00 |
235 |
235 | |
Subtotal: $1,215 |
Subtotal: $1,215 | |||||||||
TOTAL REQUEST: $51,160 |
TOTAL AWARD: $48,164 | |||||||||
When entering items, type over bracketed text; add additional rows as necessary. *If hourly rate based on CPUC decision, provide decision number; otherwise, attach rationale. **Reasonable claim preparation time typically compensated at ½ of preparer's normal hourly rate. We remind all intervenors that Commission staff may audit their records related to the award and that intervenors must make and retain adequate accounting and other documentation to support all claims for intervenor compensation. Claimant's records should identify specific issues for which it seeks compensation, the actual time spent by each employee or consultant, the applicable hourly rates, fees paid to consultants and any other costs for which compensation was claimed. The records pertaining to an award of compensation shall be retained for at least three years from the date of the final decision making the award. | ||||||||||
C. Comments Documenting Specific Claim:
Attachment or Comment # |
Description/Comment | |||
Comment 1 |
Allocation of TURN Attorney Hours by Issue/Activity Code: TURN has allocated all of our attorney time by issue area or activity, as evident on our attorney timesheets attached to this request for compensation. The following codes relate to specific substantive issue areas addressed by TURN: Code Stands For: AM Arrearage Management -- research, advocacy related to arrearage management programs, such as those offered by utilities in a number of states across the U.S. but never explored in California. Dep Customer Deposits -- research, advocacy related to deposits, particularly, re-establishment of credit deposits following late payment or service termination for non-payment, intended to reduce the financial burden on customers already struggling to keep up with bills and prevent shutoff. EE Energy Efficiency -- advocacy related to targeting energy efficiency program outreach to customers struggling with bill affordability PP Payment Plans -- research, advocacy related to increasing the affordability of payment plans as a tool for reducing shutoffs RM Rulemaking -- advocacy intended to demonstrate the need for the Commission to open a proceeding to consider ways to reduce shutoffs, as a general matter (as opposed to advocacy addressing particular policy changes, such as deposits and payment plans) UC Uncollectibles -- advocacy related to demonstrating the nexus between uncollectibles and utility credit and collections practices # Advocacy related to more than 3 of the above substantive areas, where it is impossible to allocate time on a more granular level TURN has additionally allocated attorney time to the following codes: Code Stands For: Coord Coordination with other parties -- meetings, phone calls, e-mails with DRA and other intervenors about issue coverage, strategy, etc. EB En Banc -- work, other than issue-specific work, related to participation in the Commission's En Banc on shutoffs on December 16, 2009 GP General Participation -- work that spans multiple issues and/or would not vary with the number of issues that TURN addresses, for the most part PD Proposed Decision -- work on analyzing, commenting on (other than where specific issue allocation is possible), lobbying on, strategizing on the PD and revisions thereto Sett Settlement -- work related to potential settlement of the issues presented in TURN's petition WS Workshop -- work, other than issue-specific work, related to participation in the Commission's workshop on shutoff prevention on January 5, 2010 Finally, TURN has coded hours "Comp" that were devoted to preparation of this request for compensation. Attachment 3 to this request is table showing the allocation of our attorney hours by code. |
|||
Comment 2 |
Hourly Rates for TURN Attorneys: Hayley Goodson and Robert Finkelstein, 2010 Rates TURN requests that the Commission apply the 2009 rates for Hayley Goodson and Robert Finkelstein to their limited number of hours in 2010 in this proceeding. However, we reserve the right to seek a higher billing rate for Ms. Goodson's and Mr. Finkelstein's work in 2010 in future requests for compensation. | |||
Comment 3 |
TURN Voluntary Reduction in Hours Claimed: TURN has decided not to include approximately 30 hours (designated on timesheets as "AM") devoted to researching arrearage management programs across the United States, since the Commission did not address TURN's recommendation that an arrearage management program be explored for California in either D.10-03-006 or R.10-02-005. TURN's timesheet attached in Appendix 2 reflects this voluntary reduction. TURN may seek to include these hours in a future request for compensation, should the Commission ever address this issue in a manner that would make such inclusion appropriate under the intervenor compensation statute and rules. | |||
CPUC Comment 1 |
TURN's voluntary reduction of Goodson's 2009 time categorized as "AM" represents a reduction of approximately 20% of her total hours. We have reviewed Goodson's timesheets and note than on 3/9/09 (6 hrs.) and 8/03/09 (1/3 of 4 hrs., since multiple tasks are combined) of hours that TURN classifies as "AM" (Arrearage Management) still remains. We assume this is an oversight and correct TURN's error here, by removing this time (7.3 hrs.) from Goodson's timesheets. This is appropriate given TURN's lack of substantial contribution on this issue. Applying the same reasoning that TURN uses above for its voluntary reduction of Goodson's time spent on "AM" matters, we also find it reasonable to reduce Goodson's "GP" and "Coord" hours using the same 20% disallowance. TURN appropriates this time in its claim as being time spent advocating for multiple issues and time that is impossible to segregate like it can when it performs issue specific work. | |||
D. CPUC Adoptions and Disallowances:
# |
Reason |
Goodson's 2009 ("AM") hours |
Disallow 7.3 hrs. for reasons outlined above (See Section C-CPUC Comment 1). |
Goodson's 2009 ("Coord") hours |
Disallow 1.5 hrs. for reasons outlined above (See Section C-CPUC Comment 1). |
Goodson's 2009 ("GP") hours |
Disallow 1.9 hrs. for reasons outlined above (See Section C-CPUC Comment 1). |
2010-hourly rate for Goodson |
ALJ-247 disallows increases in hourly rates for 2010 intervenor work. We apply Goodson's previously adopted 2009 rate of $280 to her work here. |
PART IV: OPPOSITIONS AND COMMENTS
A. Opposition: Did any party oppose the claim? |
No |
B. Comment Period: Was the 30-day comment period waived (see Rule 14.6(c)(6))? |
Yes |
FINDINGS OF FACT
1. Claimant has made a substantial contribution to Decision 10-03-006.
2. The claimed fees and costs, as adjusted herein, are comparable to market rates paid to experts and advocates having comparable training and experience and offering similar services.
3. The total of reasonable contribution is $48,164.
CONCLUSION OF LAW
1. The claim satisfies all requirements of Public Utilities Code Sections 1801-1812.
ORDER
1. Claimant is awarded $48,164.
2. Within 30 days of the effective date of this decision, Pacific Gas & Electric Company, Southern California Edison Company, San Diego Gas and Electric Company and Southern California Gas Company, as the affected parties, shall pay claimant equal shares of the award. Payment of the award shall include interest at the rate earned on prime, three-month commercial paper as reported in Federal Reserve Statistical Release H.15, beginning June 30, 2010, the 75th day after the filing of claimant's request, and continuing until full payment is made.
3. The comment period for today's decision is waived.
4. Petition 09-06-022 is closed.
This decision is effective today.
Dated August 12, 2010, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
TIMOTHY ALAN SIMON
NANCY E. RYAN
Commissioners
APPENDIX
Compensation Decision Summary Information
Compensation Decision: |
D1008019 |
Modifies Decision? No |
Contribution Decision(s): |
D1003006 | |
Proceeding(s): |
P0906022 | |
Author: |
ALJ Jeffrey P. O'Donnell | |
Payer(s): |
Pacific Gas and Electric Company, Southern California Edison Company, San Diego Gas & Electric Company and Southern California Gas Company | |
Intervenor Information
Intervenor |
Claim Date |
Amount Requested |
Amount Awarded |
Multiplier? |
Reason Change/Disallowance |
The Utility Reform Network |
04-16-10 |
$51,160 |
$48,164 |
No |
lack of substantial contribution |
Advocate Information
First Name |
Last Name |
Type |
Intervenor |
Hourly Fee Requested |
Year Hourly Fee Requested |
Hourly Fee Adopted |
Hayley |
Goodson |
Attorney |
The Utility Reform Network |
$280 |
2009 |
$280 |
Hayley |
Goodson |
Attorney |
The Utility Reform Network |
$280 |
2010 |
$280 |
Robert |
Finkelstein |
Attorney |
The Utility Reform Network |
$470 |
2009 |
$470 |
Robert |
Finkelstein |
Attorney |
The Utility Reform Network |
$470 |
2010 |
$470 |
(END OF APPENDIX)
1 See Administrative Law Judge's Ruling Accepting The Utility Reform Network's Notice of Intent to Claim Intervenor Compensation and Claim of Significant Financial Hardship, filed May 14, 2010 at 3.
2 See, i.e. D.06-10-013, p. 23, issued in R.04-01-006, addressing post-2003 low-income policies and programs (finding that TURN's efforts had been productive under the meaning of the intervenor compensation statute, since TURN's efforts "influenced the Commission to adopt policies that will increase the likelihood that low-income customers will continue to receive gas and electricity service during the winter of 2005-2006.").
