Comments on Proposed Decision

The proposed decision of Administrative Law Judge (ALJ) Bemesderfer in this matter was mailed on April 3, 2012 to the parties in accordance with Section 311 of the Public Utilities Code and Rule 14.3. Comments were received from Wilner on April 23, 2012. We respond to his comments as follows:

1) Wilner is correct that the proposed decision erroneously states that he asked the Commission to require warning notices on smart meters. He did not and we revise the proposed decision to remove that erroneous statement.

2) Wilner is also correct that the proposed decision does not find it necessary to consider PG&E's argument that the complaint constitutes an impermissible collateral attack on prior Commission decisions authorizing the smart meter program (including the smart meter opt-out decision, D.12-02-014). On further reflection, we conclude the complaint is an impermissible collateral attack on prior Commission decisions in this area and that this decision should memorialize that fact. In particular, Wilner's complaint substantially reiterates arguments made in his pending Application for Modification of D.06-07-027 and D.-09-03-026. (A.11-01-002.) As Wilner's own filing demonstrates, he knows that the proper way to challenge a Commission decision is by seeking a rehearing. Accordingly, we amend the proposed decision to include a new Conclusion of Law that the complaint is an impermissible collateral attack on D.06-07-027, D.09-03-026, and D.12-02-014. We also delete the following sentence from the proposed decision: "In view of the conclusion we reach in this decision, we need not consider PG&E's characterization of this complaint as a collateral attack on the smart meter opt-out proceeding."