8. Comments on Proposed Decision
The proposed decision of the 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 SCE, CPA, SCWSSM and CEP. The People's Initiative Foundation (PIF) requested and was granted leave by the ALJ to submit late-filed comments. Reply comments were timely filed by SCE and DRA. The proposed decision has been revised as appropriate in response to comments.
SCE requests that the proposed decision be modified in the following manner:
1. Allow SCE the flexibility to notify customers on the delay list of the opt-out program by either certified mail or an equivalent service, such as the United States Postal Service's Critical Mail service.52 The proposed decision requires notification by certified mail to ensure that SCE has documented proof of mailing and proof of receipt that customers have been notified of the opt-out option. Consequently, we modify the decision to allow SCE to use certified mail or an equivalent service, if the selected equivalent service will also provide documented proof of delivery and receipt.
2. Clarify that customers who do not provide reasonable access to their meter will be mandatory participants in the opt-out option.53 SCE gives as example those situations where customers do not elect to participate in the opt-out option but deny access to the property or lock the meter. While we are reluctant to allow SCE to determine what would constitute "reasonable access," we believe that a customer should be deemed to have elected to opt out of a wireless smart meter if the customer has acted affirmatively to prevent the installation of a smart meter (i.e., denying access to the property or blocking access to the analog meter).
SCE also requests various changes to the proposed decision regarding issues in the second phase of this proceeding. Since we believe these issues require further consideration, we decline to make SCE's proposed changes. Similarly, we reject the recommendations proposed by SCWSSM, CEP and PIF regarding the interim fees for participating in the opt-out option and cost allocation issues.
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.54 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 decision maker 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."55 A party seeking to disqualify a decision maker on this basis must meet the clear and convincing test in order to rebut the presumption of administrative regularity.56 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.
52 Comments of Southern California Edison Company on the Proposed Decision Modifying Decision 08-08-039 and Adopting an Opt-Out Program for Southern California Edison Company's Edison SmartConnect Program (SCE Comments), filed April 4, 2012, at 3.
53 SCE Comments at 4.
54 Center for Electrosmog Prevention Comments on Proposed Decision Issued March 15, 2012, filed April 2, 2012, at 15.
55 Association of National Advertisers, Inc. v. Federal Trade Commission (D.C. Cir. 1979) 627 F.2d 1151, 1170.
56 D.09-08-028 at 51; see also D.10-05-023 at 4.
