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.4
With this guidance in mind, we turn to the claimed contributions CFC made to the proceeding.
The EISA Amendments to the Public Utility Regulatory Policies Act (PURPA) created five tasks5 for this proceeding:
1. Whether to require a consideration of Smart Grid investments before making any new investment in the grid;
2. Whether to adopt a special ratemaking treatment for Smart Grid investments;
3. Whether the Commission should adopt a policy authorizing a utility to recover the remaining book value of equipment made obsolete by Smart Grid investments; and
4. Whether to require utilities to provide customers with access in written and/or electronic form to information concerning:
(i) Prices.
(ii) Usage.
(iii) Daily updates of prices with details on hourly basis and day ahead projections to the extent available.
(iv) Sources - annually with written information on the sources of the power provided by the utility, to the extent it can be determined, by type of generation, including greenhouse gas emissions associated with each type of generation, for intervals during which such information is available on a cost-effective basis.
5. Whether to impose a requirement on utilities to provide purchasers of electric power with access to their own information at any time through the Internet and on other means of communication elected by that utility for Smart Grid applications and whether to provide to other interested persons access to information on electricity use and prices not specific to any purchaser through the Internet. Whether information specific to any purchaser should be provided solely to that purchaser.
For each of these requirements, the Commission in D.09-12-046 considered whether, in the California context, the requirement was consistent with the purposes of EISA and whether to impose the requirement. The Commission analyzed CFC's positions on each of these issues.
On the issue of whether the Commission should require each utility to demonstrate that it has considered a smart grid investment before making any grid investment, the Commission concluded that this requirement should not be imposed on the utilities as it would delay infrastructure investment, increase costs, and increase the response time for consumer service.6 CFC supported the imposition of this requirement and did not prevail on this issue. Unfortunately, CFC did not provide sufficient analysis to support its recommendation and thus did not contribute to the decision-making process leading to the related findings in the decision.7 We find that CFC did not contribute on this issue.
On the issue of whether the Commission should authorize each electric utility to recover from ratepayers any capital, operating expenditure, or other costs of the electric utility relating to the deployment of a qualified smart grid system, including a reasonable rate of return, the Commission concluded that there was no need to change its traditional ratemaking procedures.8 CFC supported the traditional ratemaking approach, and provided the appropriate legal analysis of its position.9 We find that CFC contributed to this issue.10
On the issue of whether the Commission should authorize any electric utility that deploys a smart grid to recover the remaining book-value costs of any equipment rendered obsolete by the deployment of the qualified smart grid system, the Commission determined that specific rate treatment for obsolete equipment should be deferred to general rate cases or applications that address Smart Grid investment.11 CFC agreed with the Joint Ruling that proposed this approach. CFC also recommended against the prospect of cost recovery being sought in a separate proceeding that does not consider other uses of smart grid technologies. Unfortunately, CFC did not provide substantial analysis on this issue, and thus its contribution on this issue was limited.12
EISA required that the Commission make findings of whether or not to require utilities to provide purchasers of electricity with access to their own information at any time through the Internet and through other means of communications elected by the utility. In addition, under the EISA amendment to the PURPA, the Commission needed to determine whether to require utilities to provide other interested persons access to information not specific to any purchaser through the Internet. On the issue of whether the Commission should require utilities to provide customers with access to the information referenced in 16 U.S.C. § 1621(d)(19)(B) of PURPA in written and electronic form, the Commission concluded that its prior actions on implementing information disclosure policies in the context of the major utilities' advanced metering initiative constitute a "prior state action" pursuant to 16 U.S.C. § 1621(d), and make further action unnecessary to fulfill EISA requirements.13 However, the Commission found it necessary to reaffirm its expectations that PG&E, SDG&E and SCE provide their customers and other interested persons with real-time or near real-time retail and wholesale price information and provide their customers with usage information. The Commission indicated that in the next part of the proceeding, it would consider how to require that these utilities provide retail prices and wholesale costs on a real-time or near real-time basis in a machine-readable form consistent with smart grid EISA standards.14
We find that although CFC did not prevail on these issues, it contributed to the Commission's plans to address its various concerns in this area. The Commission reiterated its policy that the Commission's goal of customer access to usage information should be a goal of IOUs in implementing a smart grid. We indicated that significant concerns in this area needed to be addressed via additional workshops and comments.15 CFC and TURN in their joint comments recommended that the Commission initiate a new phase in this rulemaking or open a new proceeding that would specifically consider issues related to customer and third party access to customer-specific usage information in a post-AMI world.16 We find that CFC contributed to these issues in its joint comments filed with TURN on October 26, 2009.
CFC supported providing prices and GHG emission information to the customers, to promote more efficient use of their consumption and to reduce GHG, and asserted that Californians have a distinct need for standards that will protect their Constitutional right to privacy.17 We find further that CFC contributed by arguing that that additional work was needed in order to create a verification system to ensure security.18 Unfortunately, CFC's assertions in its comments do not go much deeper than general statements, and lack a more substantive analysis. We therefore find that that although CFC contributed in this area, the extent of its contribution was not significant.
4 D.98-04-059, 79 CPUC2d 628 at 653.
5 Joint Ruling at 15-16.
6 See discussion in D.09-12-046 at 26-28, finding of facts 7-10 at 71-72.
7 CFC comments on the Order Instituting Rulemaking 08-12-009 at 21. D.09-12-046 specifically noted that fact (D.09-12-046 at 22).
8 D.09-12-046, at 33-35.
9 See, for example, CFC's October 26, 2009 comments on Joint Ruling, at 7-10.
10 D.09-12-046 at 22.
11 D.09-12-046 at 39.
12 See, for example, CFC October 26, 2009 comments on Joint Ruling at 11-12, or November 2, 2009 reply comments on the Joint Ruling, at 4-5.
13 D.09-12-046 at 50.
14 D.09-12-046 at 52.
15 D.09-12-046 at 61-62.
16 TURN and CFC Joint Comments of October 26, 2009, pertaining to the EISA Standard Regarding Customer and Third Party Access to Private Usage Information at 4-5.
17 CFC's comments on Joint Ruling at 12.
18 CFC Comments on OIR at 26.
