8. Comments on Proposed Decision

The proposed decision of ALJ in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were timely filed by SDG&E, UCAN, CEP and SCWSSM. No reply comments were filed. The proposed decision has been revised as appropriate in response to comments.

In comments, SDG&E requests that the proposed decision be modified to allow the dedicated phone number to handle opt-out inquiries to be phased out over time so that any future opt-out inquiries would be handled through the utility's standard customer contact center line. SDG&E believes that the associated ongoing costs to maintain a dedicated opt-out line may not be warranted in the long-term based on its estimated volume of participants.⁴⁴ We decline to modify the proposed decision to include a phase-out of the dedicated line at this time. It is premature to conclude that a dedicated line will not be warranted on an ongoing basis. However, SDG&E may request that this be considered in the second phase of this proceeding.

CEP requests that all Commission staff, advisors, judges and Commissioners who have been previously employed by a utility or are not United States citizens recuse themselves from smart meter-related proceedings.⁴⁵ CEP provides no evidence that any such staff, advisors, judges or Commissioners have engaged, or intend to engage in inappropriate activities or are biased as to the outcomes with respect to these proceedings. CEP has not moved for Reassignment of the Administrative Law Judge in this proceeding under the Commission's Rules of Practice and Procedure, Rules 9.2 through 9.5. A decisionmaker may be disqualified "only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding."⁴⁶ A party seeking to disqualify a decisionmaker on this basis must meet the clear and convincing test in order to rebut the presumption of administrative regularity.⁴⁷ CEP has not met this burden, and has done nothing but make bald assertions without making any factual showing whatsoever. Further, Title VII of the Civil Rights Act of 1964 and the other state antidiscrimination laws prohibit discrimination against individuals employed in the United States based on their citizenship or national origin. The Commission provides equal opportunity to all its employees regardless of race, color, creed, national origin, ancestry, sex, marital status, disability, religious or political affiliation, or sexual orientation. We therefore summarily deny CEP's requests.

⁴⁴ Comments of San Diego Gas & Electric Company on Proposed Decision, filed April 4, 2012, at 2.

⁴⁵ Center for Electrosmog Prevention Comments on Proposed Decision Issued March 15, 2012, filed April 2, 2012, at 13-14.

⁴⁶ Association of National Advertisers, Inc. v. Federal Trade Commission (D.C. Cir. 1979) 627 F.2d 1151, 1170.

⁴⁷ D.09-08-028 at 51; see also D.10-05-023 at 4.